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Fir No. 458/08; State vs . Laxmi @ Vijay Kumari & Anr. Page 1 Of 69 on 20 December, 2013

IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS 
                             JUDGE­03:NW:ROHINI:DELHI

SESSIONS CASE  No. 85/13
                                FIR No.  458/08
                                P.S.         Rohini
                                U/S:         302/392/394/411/34 
                                             IPC
  
STATE 
                                                       Versus

LAXMI @ VIJAY KUMARI 
w/o Sh. Subhash Banerjee
r/o village Dhanesha Pathak, 
PS Bazar Shukal
Distt. Sultanpur, UP

Date of Institution:                03­11­2008              
Date of arguments:                  20­12­2013
Date of judgement:                  20­12­2013

JUDGMENT

1. The case of the Prosecution, in brief, is that on 28­07­2008, an information was received vide DD no. 15 through wireless regarding murder at A­4/1, Sector­4, Rohini, near Mother Divine School. On receipt of this information, ASI Om Prakash along with Ct. Balwan reached at the spot at A­4/1, Sector­4, Rohini where FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 1 of 69 SI Mahabir Singh, I/C PP also reached. At the spot, both side doors of ground floor were lying opened. On checking, one lady was found dead sitting on a plastic chair facing East direction and her name was revealed as Harjinder Kaur, aged 58 years. Some blood was coming out from the right side of her mouth and her tongue was between her teeth. The deceased was wearing printed maxi and slippers in both feet. One blood­stained towel was lying on the sofa and sofa cover was also blood stained. One half burnt bidi and matchstick were lying in the room. The articles were scattered here and there. The iron almirah was found open and one door of almirah was slightly bent because of which both doors could not be closed properly. Crime Team and Dog Squad were called at the spot. On checking the almirah, its locker was found intact and Rs. 1,16,919/­ and some gold & silver jewellery were found in the different small ladies purses. No eyewitness was found at the spot. SI Mahabir Singh prepared a tehrir and got the FIR registered through Ct. Balwan Singh u/s 302 IPC and further investigation was entrusted to Inspector Raj Kishore Singh. The IO took into possession the pieces of matchstick, broken spoon, one tava, blood­stained towel and sofa cover, some pornographic magazines and condom in different pullandas with the seal of RK. The cash and jewellery were also FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 2 of 69 taken into possession with the seal of RK. The dead body was sent for postmortem in SGM Hospital. Rs. 7,500/­ were also found in the scattered clothes which were also taken into possession. Statement of Smt. Monica was recorded wherein she stated that the younger sister of her mother­in­law namely Harjinder Kaur (since deceased) aged 58 years was residing alone on the ground floor and she was not having any children. She got divorce from her husband some 25 years ago. Her jeth Gurdeep was residing on the second floor and he used to come late. They used to lock the outer iron gate and keep the key in the window and used to go upside from the room of Harjinder Kaur. When Gurdeep come late, he used to open the lock with the key and then go to his room.

2. It is further the case of prosecution that Smt. Monia further stated that on 27­07­2008 between 10:30­10:45 pm, when she closed the iron gate and going to her room through the room of Harjinder Kaur, she saw Laxmi sitting on the sofa in the room of her mausi Harjinder Kaur. Laxmi was frequent visitor to her mausi and used to reside in Sultanpuri. She knew Laxmi very well by her face and name. Then, she went to her room. Her mausi Harjinder Kaur used to wear nose pin, ear rings and tops, kada, bracelet and double cross ring and she was having sufficient jewellery and cash in her FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 3 of 69 almirah also. One Reliance mobile phone no. 9312589923 of Harjinder Kaur was also missing. On this statement, section 394 IPC was also added in the case. On 29­07­2008, after postmortem, the dead body was handed over to her sister. Doctor handed over viscera and clothes of deceased to police. The call details of mobile no. 9312589923 of deceased was obtained which revealed that last call came from mobile no. 9984418602 which belonged to Laxmi and in the night of incident, its location was in Rohini. On 03­08­2008, Laxmi @ Vijay Kumari was arrested from her village Bazar Shukal, Distt. Sultanpur, UP and she gave disclosure statement. The robbed jewellery of deceased was recovered from the beauty parlour shop of Laxmi and they were taken into police possession. The mobile phone of accused Laxmi @ Vijay Kumari was also taken into police possession. Witness Monica identified Laxmi as the same lady who was sitting on the night of incident. Accused Laxmi disclosed the names of her associates as Pappu and Krishan. After interrogation, it was revealed that Krishan and Pappu were not involved with her in this incident. Accused then named Rattanlal Aggarwal as her associate in the crime. The mobile phone and jewellery of deceased were recovered from the house of accused Laxmi at village Dhanesha Pathak. One deposit receipt of Rs. 12,000/­ in Bank of FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 4 of 69 Baroda, branch Shukal Bazar and passbook of a/c no. 20012115 were also recovered from the house of accused Laxmi which she deposited out of the robbed amount. Accused then disclosed that she took the names of Rattanlal Aggarwal and Nirmal Kaur falsely and actually her younger brother Gyan Prakash @ Guddu was involved with her in the crime and he was also having the money and articles of deceased. Accused Gyan Prakash @ Guddu could not be arrested. The exhibits were sent to FSL. Statements of witnesses were recorded. The TIP of recovered jewellery was got conducted and witness Monica identified the jewellery in TIP. Process u/s 82/83 Cr.P.C. was initiated against accused Gyan Prakash @ Guddu. After completion of investigation chargesheet u/s 302/392/394/411/34 IPC was filed against accused Laxmi @ Vijay Kumari.

3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 392/394/302/34 & 411 IPC was framed against the accused Laxmi @ Vijay Kumari to which she pleaded not guilty and claimed trial.

4. In order to prove its case, Prosecution examined 32 witnesses. PW1 Smt. Monika, in her testimony, exhibited pointing out memo Ex. PW1/A and identified one mobile phone Ex. P1, gold FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 5 of 69 kada along with purse Ex. P2; small gold chains Ex. P3; pair of ear rings as Ex. P4; cross ring as Ex. P5 and pair of tops as Ex. P6. PW2 HC Umed Singh in his testimony, exhibited FIR as Ex. PW2/A and endorsement on the rukka as Ex. PW2/B. PW4 HC Satyapal Singh, in his testimony, exhibited DD no. 15 as Ex. PW4/A. PW5 Ct. Manish in his testimony, exhibited photographs of the spot as Ex. PW5/A1 to P10. PW6 SI Manohar Lal in his testimony, exhibited scaled site plan Ex. PW6/A. PW7 Baljeet Singh, in his testimony, exhibited seizure memos of 14 jewellery articles as Ex. PW7/A; tava having wooden handle as Ex. PW7/B; spoon broken in three pieces as Ex. PW7/C; one burnt matchstick and one bidi as Ex. PW7/D; pornographic magazines and condom as Ex. PW7/E; towel and sofa cover as Ex. PW7/F; Rs. 1,16,900 approx. vide Ex. PW7/G; scattered clothes and Rs. 7,500 as Ex. PW7/H; death report as Ex. PW7/J; dead body identification statement as Ex. PW7/K and dead body handed over memo as Ex. PW7/L. PW7 also identified towel Ex. P1 and sofa cover as Ex. P2, maxi as Ex P3 and pair of chappal as Ex. P4, bidi as Ex. P5 and matchstick as Ex. P6, pieces of spoon as Ex. P7, tava as Ex. P8, books as Ex. P9 and condoms as Ex. P10. PW9 HC Jagdish, in his testimony, exhibited entries FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 6 of 69 no. 4596, 4597, 4608, 4634 of register no. 19 as Ex. PW9/A to PW9/D; RC no. 119 & 120 as Ex. PW9/E and PW9/F and acknowledgement of FSL as Ex. PW9/G and PW9/H. PW11 HC Baljeet Singh, in his testimony, exhibited arrest memo and personal search memos of accused Laxmi vide Ex. PW11/A & PW11/B; her disclosure statement Ex. PW11/C; seizure memo of mobile phone make Nokia 1110 got recovered by accused Laxmi vide Ex. PW11/D; seizure memo of some jewellery articles vide Ex. PW11/E. PW11 also identified one mobile phone Ex. P11; double cross ring Ex. P12; one pair of kundal i.e. ear rings as Ex. P13 and one pair of tops as Ex. P14. PW12 R. K. Srivastava, Branch Manager, Bank of Baroda, Shukul Bazar, in his testimony, exhibited statements of account as Ex. PW12/A & PW12/B. PW14 Ct. Sunil Kumar, in his testimony, exhibited seizure memo of purse vide Ex. PW14/A; seizure memo of passbook Ex. P7 and receipt Ex. P6 vide Ex. PW14/B; site plan of place of recovery of said articles vide Ex. PW14/C.

5. PW15 Dr. V. K. Jha, MO, BJRM hospital, in his testimony, exhibited PM report vide Ex. PW15/A; inquest papers Ex. PW15/B to Ex. PW15/E and his opinion as Ex. PW15/F. PW19 Manoj in his testimony, exhibited prepaid application form for mobile FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 7 of 69 no. 9984418602 in his name vide Ex. PW19/A; his election I­card as Ex. PW19/B and PW19/C. PW22 Ms. Rekha, Ld. ACJ/ARC, Dwarka Courts, in her testimony, exhibited TIP of case property vide Ex. PW22/A. PW24 ASI Ramesh Chand in his testimony, exhibited seizure memo of viscera and other pullandas containing the clothes and chappals of deceased vide Ex. PW24/A; supplementary disclosure statement of accused Laxmi vide Ex. PW24/B; supplementary statement of accused vide Ex. PW24/C. PW25 Kaushik Ghoshal, Nodal Officer, Vodafone, in his testimony, exhibited call details record of mobile no. 9984418602 vide Ex. PW25/A and PW25/B and requisite certificate u/s 65B as Ex. PW25/C. PW26 Israr Babu, Alternate Nodal Officer, Vodafone, in his testimony, exhibited CDR of mobile no. 9984418602 for the period 20­07­2008 to 30­07­2008 vide Ex. PW26/A and certificate u/s 65B of Evidence Act as Ex. PW26/B. PW27 Ct. Manish, in his testimony, exhibited the negatives of photographs vide Ex. PW27/A1 to PW27/A10 which he took at the spot. PW28 Inspector Raj Kishore Singh, in his testimony, exhibited the site plan Ex. PW28/A along with other documents. PW29 Dr. Dhruv Sharma, Asstt. Director, Biology, FSL Rohini, in his testimony, exhibited biological FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 8 of 69 report as Ex. PW29/A and serological report as Ex. PW29/B. PW30 Sh. V. Shankar Narayanan, Sr. Scientific Officer, FSL Rohini, in his testimony, exhibited biological report as Ex. PW30/A and serological report as Ex. PW30/B. PW31 Sh. Amar Pal Singh, Asstt. Director, FSL Rohini, in his testimony, exhibited his detailed report vide Ex. PW31/A. PW32 Inspector Sanjay Gade, in his testimony, exhibited his detailed spot examination report vide Ex. PW32/A.

6. The statement of the accused was recorded u/s 313 Cr.P.C. wherein she denied all the allegations made against her. The accused opted not to lead defence evidence.

7. I have heard the Ld. defence counsel for accused and Ld. APP for the State and have perused the entire records.

8. The Ld. counsel for the accused argued that the deceased was the divorcee and she was living alone. The deceased was habitual drunkard. As per the prosecution case, the deceased was residing on the ground floor of the house bearing no. A­4/1, Sector­4, Rohini, Delhi. PW1/ Monica along with her husband and her two sons were residing on the first floor and her father and mother in law and jeth were residing on the second floor. If the deceased was not earning then how she was managing herself and why she was having the phone of her jija. PW1 herself admitted in FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 9 of 69 her cross­examination that some persons usually visited the deceased everyday. In the PM report, there is no mention of ligature mark. The deceased Harjinder Kaur (since deceased) was calm and sitting in hawai chappals but if there was scuffle then how hawai chappals could be in both legs of the deceased. PW1, PW3, PW8, PW16, PW17, PW19, PW23 and PW28 are the material witnesses. PW16 is stated to be the last seen witness. There are major contradictions in the testimonies of PW1, PW3 and PW16. PW17 has not supported the case of the prosecution. The staircase has not been shown in the scaled site plan. If staircase is not shown then all the staircase are different. PW1 also admitted in her cross­ examination that they have separate entrance for going to the first and second floor of the house. Further, if there is no staircase inside the house, then last seen theory is over. If the site plan is not signed by any witness, then it means that the spot was not visited. No chance print of the spot were taken. Mobile no. 9312589923 is the number of deceased. The mobile no. 9984418602 belonged to Manoj/ PW19. Mahender Singh (brother in law) jija of the deceased or Manoj/ PW19 could be the real culprit. The mobile no. 9899183465 belonged to Sunil/ PW8. No proof or document of Sunil filed on record by the IO. No upto date call details have been filed FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 10 of 69 on record. If mobile numbers are taken away from the case, then this is a blind murder case. The identity of the accused is doubtful since IO never took Monika/PW1, Sunil/PW8 and Gurdeep/PW16. Therefore, on whose behalf accused was arrested and how her identity was established. Lucknow and Sultanpur are at a long distance from Delhi and neither any document of permission for going to Lucknow and Sultanpur nor any reimbursement document filed on record. No signature of any police official outside Delhi was obtained at the time of recovery. What was the purpose of keeping the mobile phone at such a long distance. No motive proved against the accused since all items and currency notes were found intact. There is no complaint regarding missing jewellery. Even, locker was found intact. Where from key came. However, no Farad (property document) was there. There is no description of case property. There is no investigation regarding the mobile that it was kept open. What was the purpose to keep open the mobile phone. Expert opinion should have been taken. Therefore, the mobile phone was planted one. There is no statement of Nirmal Kaur who opened the kundi of the door. There is also no statement of Inderpal. Why the IO had gone to the spot when the case was not marked to him.

9. The Ld. APP for State argued that on the intervening FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 11 of 69 night of 27/28­07­2008, accused Laxmi along with Gyan Prakash @ Guddu committed murder of Smt. Harjinder Kaur and took away jewellery, money and mobile phone of deceased. On the day of incident, PW1/ Monica saw the accused sitting in the room of deceased at about 10:30­10:45 pm. On the intervening night of 27/28­07­2008 at about 1:45 am/ 2 am, PW16/ Gurdeep saw accused Laxmi along with one person outside the house of deceased. Accused Laxmi got recovered jewellery articles from the beauty parlour which she looted from the dead body of deceased. Accused Laxmi also got recovered one mobile phone and some jewellery from her house which she had taken away from the house of deceased on the day of incident. PW1/ Monica identified the mobile phone and jewellery articles in TIP which accused Laxmi got recovered. The prosecution has proved its case beyond reasonable doubt that the accused committed murder of deceased Harjinder Kaur and robbed the cash and jewellery articles from her house. The Ld. APP for State further argued that there are some minor contradictions in the testimonies of the PWs yet these minor contradictions do not go to the root or core of this case. Further, the accused cannot take benefit of defective/ faulty investigation, if any. Ld. APP for the State, in support of his arguments, relied upon the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 12 of 69 judgements reported in the cases of State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).

10. Let us examine in this case which is admittedly based on circumstantial evidence, whether the prosecution has been able to complete the chain of events in order to bring home the guilt of the accused Laxmi @ Vijay Kumari. PW16 Gurdeep who is stated to be the last seen witness stated in his examination­in­chief that he was working at Giani Ice Cream shop at Model Town in the year 2008 and he used to return back at home by 12:30 am. On the intervening night of 27/28­07­2008, he came at his house at about 12:30 am and parked his scooter outside the house. The main gate used to be locked. PW16 took the keys from the window near the gate and opened the door and went to his floor. The ground floor of the said house was owned and occupied by his maternal aunt Harjinder Kaur (mausi) and first floor and second floor were owned by his mother in which on first floor, his brother was residing with his family and on the second floor, PW16 along with his parents used to reside. The house was having two gates, one was towards the roadside and other was towards the square of 9 other houses. The FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 13 of 69 occupant of ground floor used to use the door towards the roadside generally. PW16 further stated that after entering the house, he went on the second floor and had his meals after changing his clothes. After taking dinner, PW16 came in the balcony and was roaming in the balcony when he saw that accused Laxmi with one person wearing pants and shirt came outside the house of his mausi from ground floor at about 1:45 / 2 am. PW16 did not think anything as Laxmi used to visit the house of his mausi earlier also in night hours. Thereafter, PW16 went to sleep. In the morning of 28­07­2008, PW16 heard the news of death of his mausi. He went on the ground floor and saw that household and other articles were lying scattered there and his mausi was found sitting on a chair in dead condition. The mobile phone of his mausi was also found missing besides other articles. Police was informed by his younger brother. Accused Laxmi did not come on the death of his mausi though other persons and relatives came. Statement of PW16 was recorded. On 14­08­2008, police came along with accused Laxmi and two other persons at his residence and made inquiry from his mother Smt. Nirmal Kaur. PW16 identified accused Laxmi in the custody of police as the same lady who was coming out of the house of his mausi on the night of incident but other two persons were not FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 14 of 69 the same persons who accompanied Laxmi.

11. During cross­examination, PW16 stated that he knew accused Laxmi for the last 5/6 months from the date of incident but he never talked with her. PW16 could not tell the specific date when he had seen accused Smt. Laxmi on previous occasions. PW16 stated that accused Laxmi was wearing salwar and shirt but he could not tell their colours. PW16 could not tell the colour of clothes of person accompanied by accused Laxmi at that time. PW16 further stated that he came to know the name of accused Laxmi from his mausi who used to discuss about her. The deceased did not tell PW16 about the address of accused but he knew that she was residing somewhere at Mangolpuri. PW16 stated that his statement was recorded at about 2:30/ 3 pm on 28­07­2008. Police did not make any inquiry from PW16 initially and they shunted out all the persons from the spot.

12. PW1 Smt. Monika stated in her examination in chief that she resides at the first floor of H. No. A­4/1, Sector­4, Rohini, Delhi and on the second floor, her mother in law along with brother in law Gurdeep and other family members were residing. On the ground floor, deceased Harjinder Kaur, sister of her mother in law was residing. On 27­07­2008 at about 10:30­10:45 pm, she locked the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 15 of 69 gate from outside and put the key in the window as her jeth Gurdeen had not come and went to her first floor residence through the room of Harjinder Kaur. At that time, she found Harjinder Kaur sitting on a chair in her room and accused Laxmi was sitting on the sofa near Harjinder Kaur. Accused Laxmi was known to PW1 prior to the incident as she saw her many times before also and she was resident of Sultanpuri. At about 8 am, when PW1 got down from the first floor along with her son who had to go to school, she found the main gate of the floor of Harjinder Kaur closed from inside. PW1 came down at ground floor and knocked the door but found no response. Her mother in law also knocked the room but found no response. After entering the room of Harjinder Kuar, her mother in law found Harjinder Kaur lying in dead condition. Thereafter, she called the neighbours and police. PW1 stated that deceased Harjinder Kaur used to wear nose pin, ear rings, tops, kada and double cross ring and she was also having a Reliance mobile phone. PW1 found the above said jewellery articles missing from the body of her mausi deceased Harjinder Kaur and her mobile phone was also missing. Deceased Harjinder Kaur also having so many jewellery articles and cash which she used to keep in almirah. PW1 identified the jewellery articles of her mausi deceased Harinder Kaur FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 16 of 69 in Rohini Court in TIP. On 04­08­2008, accused Laxmi led the police to the place of occurrence and pointed out the place of occurrence to the police vide pointing out memo Ex. PW1/A. PW1 identified the mobile phone Ex. P1; gold kada along with purse as Ex. P2; both small gold chains as Ex. P3; pair of earrings as Ex. P4; cross ring as Ex. P5 and pair of tops as Ex. P6.

13. In her cross­examination, PW1 stated that she resided on the first floor with her husband Sh. Inder Pal Singh and two sons namely Talvinder Singh aged about 6 years and Harnam Singh aged nd about 3 years. On the 2 floor of her house, her father­in­law Mahender Singh, mother­in­law Nirmal Kaur and brother­in­law Gurdeep Singh (jeth) were residing. PW1 stated that her deceased mausi Harjinder Kaur used to reside on the ground floor and was having her separate kitchen from them. She used to meet deceased daily. PW1 did not know as to what was the business of deceased Harjinder Kaur. PW1 stated that they had separate entrance for nd going to the first floor and 2 floor of the house and alternatively if the ground floor premises of deceased Harjinder Kaur was open, they could go to the first and second floor from inside the ground floor premises. PW1 admitted that it was easier to go to the first floor and second floor directly instead of going through the ground FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 17 of 69 floor premises which was occupied by deceased Harjinder Kaur. PW1 further admitted that any person who was aware about the fact that key was kept on the window by the side of main gate, could use the same for entering into the house. PW1 stated that whenever her Jeth used to come to the house in the night, it was not necessary for him to wake them up as he could go upstairs to second floor and even come to the kitchen on the first floor without disturbing or waking them up. PW1 could not tell the number of persons who usually came to meet deceased/ Harjinder Kaur daily but some persons usually visited her everyday and she did not know any of those persons personally. PW1 stated that in the day time, no lock was put on the main gate. PW1 did not remember if any of her known/ relative/ family friend had come to see her on 27­07­2008. PW1 stated that on 27­07­2008, accused Laxmi was wearing a saree but she did not recollect its colour. PW1 stated in her statement to the police that she saw the deceased Harjinder Kaur wearing nose pin, ear rings, tops, kara and double cross rings last time. She was confronted with statement Ex. PW1/DA where the words "I had seen her last time" were not mentioned. PW1 also stated in her cross­examination that she had stated to the police that said jewellery was missing from the dead body of deceased. She FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 18 of 69 was confronted with statement Ex. PW1/DA where it was not recorded.

14. PW1 further stated in her cross­examination that deceased used to keep the account of the expenses and money herself. Her mausi did not discuss about cash in her possession with PW1. The deceased used to keep her cash in her almirah. The deceased never asked PW1 to take out or keep cash out of or in her almirah. The deceased had kept the key of the almirah always with her and never given to PW1. PW1 did not know the names and addresses of the persons who visited the deceased. PW1 never asked for the address from the deceased of the said visitors. PW1 stated that accused Laxmi never visited her house at the first floor. PW1 was questioned whether from her house at the first floor she had ever come down on the ground floor to meet accused Laxmi and she replied that "main Laxmi se kyon milungi. I had met Laxmi at the ground floor". PW1 further stated that she had never directly talked to accused Laxmi. PW1 had stated to the police that on 27­07­2008 at about 10:30 or 10:45 pm, she found Harjinder Kaur sitting on a chair in her room. She was confronted with statement Ex. PW1/DA where it was not so recorded. PW1 stated that her Jeth Gurdeep from his mobile phone had informed the police first of all around 8 FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 19 of 69 am. PW1 stated that her statement was first of all recorded by the police on 28­07­2008 in the noon at her said residence. PW1 stated that police did not read over her statement to her. The police recorded her statement twice, once on the said date and time and secondly when the accused Laxmi was brought to her house on 04­08­2008 at about 10 or 11 am. PW1 stated that they never objected to the visits of persons to the deceased. PW1 stated that house where the deceased was found dead was in the joint name of deceased as well as her mother in law. PW1 stated that some case with regard to family settlement was pending in the court between her mother in law and Manjeet Kaur. No Will was left by the deceased. PW1 stated that portion occupied by the deceased in the said premises, after her death, was in their occupation. PW1 had stated to the police in her statement that when she was taking her son downstairs from the first floor for sending him school, she found the portion in the possession of deceased of the house locked from inside. She was confronted with statement Ex. PW1/DA where it was not so recorded. PW1 had used the mobile phone of deceased sometimes for talking to her husband at the shop. PW1 did not recollect if at the relevant time in the year 2008 she was having her own mobile phone or not. PW1 did not recollect the mobile phone FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 20 of 69 number of her mausi.

15. PW2 HC Umed Singh in his examination in chief stated that on 28­07­2008 at about 12:40 pm, Ct. Balwan Singh brought a rukka sent by SI Mahavir Singh and he recorded the FIR u/s 302 IPC Ex. PW2/A and made endorsement on the same vide Ex. PW2/B. PW3 Mahinder Singh stated in his examination in chief that deceased Harinder Kaur was his sister in law (saali). PW3 along with his family were residing in the first and second floor and his sister in law deceased Harjinder Kaur was residing on the ground floor. Deceased Harinder Kaur was not having identity proof so PW3 obtained the mobile connection in his name from Reliance company at the address of his old address i.e. H. NO. B­484, Sector­1, Rohini, Delhi and she was using the same. The said mobile phone was also missing from the house after the murder of Harjinder Kaur. IO recorded his statement in this regard. During cross­examination, PW3 stated that his wife is the owner of the house where the incident taken place. PW3 again said that the house belonged in the joint name of the deceased and his wife. PW4 HC Satyapal Singh stated that on 28­07­2008, at about 8:40 am information was received to him through wireless and he recorded the DD no. 15, PP Vijay Vihar vide Ex. PW4/A. PW5 Ct. FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 21 of 69 Manish stated that on 28­07­2008, he along with Crime Team, after receipt of information from PS Rohini, reached A­4/1, Sector­4, Ground Floor, Rohini and took 12 photographs of the spot and dead body vide Ex. PW5/A1 to PW5/A10. PW6 SI Manohar Lal stated in his examination in chief that on 29­07­2008, he along with IO Inspector Raj Kishore reached the spot i.e. H. No. A­4/1, Sector­4, Rohini, Delhi and on the pointing out of IO, he prepared rough notes and took measurements and then prepared scaled site plan Ex. PW6/A.

16. PW7 Baljeet Singh stated in his examination in chief that on 28­07­2008, on receipt of information regarding death of his mausi Harjinder Kaur at her house at Sector­4, Rohini at about 10 am, he reached there where crowd was gathered and police was also present in the house. When he saw dead body of his mausi, she was wearing maxi and chappal in the foot. Blood was oozing from the right side of her mouth and her tongue was between the teeth. The households were found scattered. One towel was lying on the sofa having blood stains. The almirah was found bend from upper side and found opened but locker was intact. PW7 further stated that photographs took photographs and opened the locker of the almirah in his presence. Police took out two small bundles FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 22 of 69 containing Rs. 1,16,000/­ something. About 14 jewellery items were also found in the locker including gold kadas, rings and earrings etc. which were seized by the IO vide seizure memo Ex. PW7/A. One tava having a wooden handle was also seized vide memo Ex. PW7/B. One spoon broken in three pieces was also seized vide memo Ex. PW7/C. One burnt matchstick and one bidi was found on the sofa which was seized vide memo Ex. PW7/D. There were some adult magazines and condom lying on the bed which were seized vide memo Ex. PW7/E. The towel and sofa cover were seized vide memo Ex. PW7/F. The currency notes were seized vide memo Ex. PW7/G. The scattered clothes were checked and Rs. 7,500/­ were found which were seized vide memo Ex. PW7/H. The dead body was sent to mortuary and statement of PW7 was recorded by the IO. IO prepared death report Ex. PW7/J. After postmortem, PW7 identified the dead body of his mausi Harjinder Kaur vide memo Ex. PW7/K and then dead body was handed over to him vide memo Ex. PW7/L. PW7 also identified towel Ex. P1 and sofa cover as Ex. P2, maxi as Ex P3 and pair of chappal as Ex. P4, bidi as Ex. P5 and matchstick as Ex. P6, pieces of spoon as Ex. P7, tava as Ex. P8, books as Ex. P9 and condoms as Ex. P10.

17. PW7 in his cross­examination stated that his mother was FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 23 of 69 on visiting terms with his deceased mausi and he used to visit her occasionally. PW7 might have met his aunt about six months or one year back but he did not recollect the exact duration when he last met her prior to her death. PW7 did not make a phone call in order to know the well being of his aunt during the said period when he could not visit her personally. PW7 stated that his mother was real sister of his said aunt. PW7 stated that husband of his deceased aunt was divorced from her for more than 20/25 years back. PW7 stated that there was no civil dispute of any kind pending between his mother and deceased aunt. PW7 further stated that on the day of incident when he had reached along with his mother and went inside the house of his aunt, only the police officials were present inside but no public person was present. PW7 stated that locker of almirah inside the house was opened by the police officials after he and his mother's reaching. The said amount recovered from the locker of the almirah was in the denomination of Rs. 2, 5, 100, 500 and 1000 and some of the currency notes were brand new but he could not tell as to how many currency notes of each denomination were there. PW7 stated that other things recovered were packed and sealed in different containers/ parcels in his presence but he did not know as to from where the packing or sealing material came. FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 24 of 69 PW7 had not seen any other person visiting his said aunt whenever he had visited her house. PW7 further stated that said premises at the ground floor was in exclusive ownership of his said deceased aunt and the first and second floor was in ownership of his another aunt Smt. Nirmal Kaur and to the best of his knowledge the deed of ownership of the said three floors was one only.

18. PW8 Sunil stated in his examination in chief that he used to work as motor mechanic at a car repairing workshop at Vikas Puri and he knew accused Laxmi present in court as she was residing as a tenant in their gali. Laxmi resided there for about 2/3 years and thereafter she left and went to her native village. After 5/6 months, she came back to Delhi and on 20­07­2008 at about 3 pm, PW8 received one telephone call on his mobile no. 9899183465 from mobile of Laxmi and she told that she was in need of accommodation for 2­3 days. On 22­07­2008, Laxmi along with her mother, brother Gian Parkash and wife of Guddu came at their house and stayed there till 27­07­2008. Laxmi used to leave the house in daytime and when PW8 asked her about the same, she informed him that he used to go at the house of one Harjinder Kaur at Sector­4, Rohini. PW8 further stated that on 25­07­2008, he accompanied Laxmi, her mother, her brother Guddu and his wife to FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 25 of 69 Old Delhi Railway Station where only mother of Laxmi boarded the train for her native village and then they all returned back to house. On 27­07­2008, PW8 received a phone call of Laxmi in the workshop that she was at Avantika and purchased some goods and to send her bhabhi and brother to Avantika by rickshaw. PW8 told her to make phone call to his father since he was at his job. On the same day i.e. 27­07­2008 in night time, PW8 received phone call of Laxmi that their bus had gone out of order and asked him to inform her husband that she had already left. Thereafter, PW8 did not receive any other call from Laxmi. During cross­examination, PW8 stated that on 07­07­2008, he had made a phone call to the accused from his mobile phone. Upon receiving a missed call, PW8 made probably two calls to the accused from his mobile but he did not remember if on the dates 14­07­2008, 17­07­2008 to 20­08­2008 and 28­07­2008, he had talked to the accused from his mobile phone because he did not remember the said dates. PW8 stated that his statement was recorded by the police at the PS on 30­07­2008.

19. PW9 HC Jagdish, MHCM proved entries no. 4596, 4597, 4608 and 4634 vide Ex. PW9/A to PW9/D; RC no. 119 and 120 vide Ex. PW9/E and PW9/F and acknowledgement of FSL in FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 26 of 69 photocopies as Ex. PW9/G and PW9/H. PW10 HC Balwan Singh stated in his examination in chief that on 28­07­2008 at about 8:40 am on receipt of DD no. 15 regarding murder of a lady, he along with ASI Om Prakash reached at the spot i.e. A­4/1, Sector­4, Rohini, near Mother Devine School. In one room of the ground floor, one old lady namely Smt. Harjinder Kaur aged 58 years was sitting on a plastic chair in dead condition. The blood was there on the right side of her mouth and tongue was entangled between the teeth. One blood­stained small towel was lying on the sofa and sofa cover was also having blood­stains. A half piece of bidi and half burnt matchstick was ling in the room. The door of the steel almirah was broken. SI Mahavir Singh called the Crime Team and prepared the rukka and got the FIR registered through PW10. PW10 handed over the carbon copy of FIR and original rukka to Inspector Raj Kishore at the spot at about 1:30 pm.

20. PW11 HC Baljeet Singh in his examination in chief stated that on 01­08­2008, he along with Inspector Raj Kishore and other staff left for Lucknow in private vehicle i.e. Scorpio in connection with this case. On 03­08­2008 at about 10 am, they went to Shukal Bazar and contacted local police. They met Dr. Subhash Banerji who took them to Laxmi Beauty Parlour and pointed out FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 27 of 69 towards Laxmi and she was interrogated. After interrogation, Laxmi confessed her guilt of murder and robbery in the house of Harjinder Kaur. Inspector Raj Kishore arrested accused Laxmi @ Vijay Kumari vide arrest memo Ex. PW11/A and her personal search was conducted vide memo Ex. PW11/B by lady HC Shailender. Accused Laxmi made her disclosure statement Ex. PW11/C and got recovered one mobile phone make Nokia 1110 vide memo Ex. PW11/D. Accused also got recovered some jewellery articles i.e. one double cross ring, one pair of tops and one pair of kundal i.e. ear rings stated to be removed from the dead body of Smt.Harjinder Kaur and the same were seized vide memo Ex. PW11/E. On 04­08­2008, they all went to A­4/1, Sector­4, Rohini and accused pointed out the place of incident. One Monika present in the house identified accused and told that on the intervening night of 27/28­07­2008, accused was present with the deceased.

21. PW12 Sh. R. K. Srivastava, Branch Manager, Bank of Baroda, Shukal Bazar, UP brought the summoned record i.e. statement of account of SB a/c no. 21820100002341 in the name of Laxmi Banerjee for the period 27­07­2008 to 09­02­2008 and from 09­02­2008 to 25­08­2011 Ex. PW12/A and PW12/B. As per statement of account Ex. PW12/B, Rs. 12,000/­ was deposited by FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 28 of 69 the account holder. PW13 Ct. Nand Kumar stated in his examination in chief that on 28­07­2008, he took special report on Govt. motorcycle no. DL1SN­3994 and handed over to concerned MM and other senior officers. PW14 Ct. Sunil Kumar stated in his examination in chief that on 14­08­2008, he along with IO Inspector Raj Kishore, other staff and accused went out of station for investigation at Distt. Sultanpur, UP. On 15­08­2008, at PS Shukal Bazar Ct. Umesh was joined in the investigation and they all went to village Dhanesa Pathak from where accused took out a small pouch of small jewellery purse lying in the backside of a almirah in a room. The purse was having words "Yadvender (Titu) Avantika Sector­2, Rohini, Delhi­85" and it was found containing one mobile phone make LG Reliance, one carved kangan of golden colour, one pair of chain. Accused told that these articles belonged to deceased Harjinder Kaur and the same were seized vide memo Exc. PW14/A. Accused took out one passbook and one yellow colour slip of Bank of Baroda, Shukal Bazar, Distt. Sultanpur, dated 02­08­2008 on which an amount of Rs. 12,000/­ was mentioned. The passbook and receipt were taken into possession vide memo Ex. PW14/B. IO prepared site plan of the place of recovery vide Ex. PW14/C. PW15 Dr. V. K. Jha, MO, BJRM Hospital stated in his examination in chief FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 29 of 69 that on 29­07­2008, he conducted postmortam examination on the dead body of Harjinder Kaur, aged 58 years. He proved the PM report vide Ex. PW15/A and his opinion Ex. PW15/F. PW17 Manoj Kumar stated in his examination in chief that he did not own any mobile phone nor he was ever owning any mobile phone number. He was illiterate and working as labour. PW17 stated that he did not know anything about the mobile phone no. 9984418602 nor this number or mobile phone ever belonged to him or remained in his name. He had not seen the accused present in the court.

22. PW18 SI Mahabir Singh stated in his examination in chief that on 28­07­2008, on receipt of information regarding DD no. 15PP Ex. PW4/A, he being Chowki In­charge, reached at A­4/1, Sector­4, Rohini, ground floor where ASI Om Prakash and Ct. Balwan were already present. The said house was having two gates and both were open. In the room on a chair, a lady namely was found sitting in dead condition facing east direction. On inquiry, her name was revealed as Harjinder Kaur d/o Gyan Singh, aged 58 years. Blood was coming out on the right side of her mouth and her tongue was entangled in teeth. A blood stained towel having strips of different colours was found on the sofa. The cover of the sofa was also had blood stains. The deceased was wearing a printed FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 30 of 69 maxie and chappals and one half burnt bidi and matchstick was also found lying at the spot. The iron almirah lying in the room was found opened and the articles were scattered here and there. One side gate of the almirah was twisted due to which both doors of the almirah could not be closed. Crime Team and Dog Squad were called at the spot. The locker of the almirah was found intact and small pouches and ladies purses were lying in the locker which were opened and checked and same were containing Rs. 1,16,919/­ and some gold and silver ornaments. Inspector Raj Kishore along with staff also reached there. No eyewitness was found. PW18 made his endorsement Ex. PW2/B and handed over the rukka to Ct. Balwan for registration of FIR. On 30­07­2008, PW18 obtained the CDR/ ownership of mobile no. 9984418602 and landline and mobile phone no. of deceased 9312589923 and 65344728. Perusal of CDRs revealed that on 27­07­2008 at about 10 pm, the deceased had a talk on her mobile phone no. 9312589923 with mobile phone no. 9984418602 around 10 pm and its location was in Rohini. During cross­examination, PW18 stated that the lock of almirah was opened by police party with the key available in the clothes in the room. PW18 obtained the call details of the said phone from his computer by using email ID of ACP Sultanpuri with his permission. FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 31 of 69 PW18 stated that request for CDRs was sent to the concerned Nodal Officer of mobile phone company and in response to request, they provided CDR through mail.

23. PW19 Manoj in his examination in chief identified the prepaid application form for mobile no. 9984418602 in his name and his photograph was there at point A on form Ex. PW19/A. He also identified the election photo ID in his name and bearing his photograph at point A vide Ex. PW19/B having his correct address on the backside vide Ex. PW19/C. PW19 stated that said mobile connection stands in his name. PW19 identified accused Laxmi as resident/ daughter in law of their village. PW19 further stated that he has no knowledge if his said mobile phone was recovered from the possession of Laxmi by the police. PW19 stated that at present he was using the mobile phone no. 9721713863 of Vodafone company purchased in 2008. PW19 stated that he never complained in PS or any other authority regarding misuse of his said mobile no. 9984418602 by accused Laxmi. During cross­examination, PW19 denied the suggestion that he got issued the mobile phone no. 9984418602 also or used it. It was observed by the court that from the denial of the above­said suggestion by the witness, it became necessary to seek clarification from the witness as to why on the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 32 of 69 documents his particulars were appearing as the person who got issued the said mobile phone no. 9984418602. PW19 was questioned as to why on CAF Ex. PW19/A, his name, father's name, his address were appearing and in support of the same how the photocopy of his voter ID Ex. PW19/B and Ex. PW19/C were attached with the said application form. PW19 replied that he did not know at all as to how his particulars and documents came against his said CAF for issuing of said mobile phone number. PW20 Ct. Rajesh Kumar stated in his examination in chief that on 19­09­2008, he took three sealed pullandas out of which two were sealed with the seal of SGM hospital and one was sealed with the seal of RK along with sample seal of hospital from the MHCM and deposited the same at FSL Rohini vide RC no. 119/21/08 and RC no. 120/21/08 Ex. PW9/E and PW9/F. He handed over the copies of RC and respective copies of FSL.

24. PW21 WHC Shailender stated in her examination in chief that on 01­08­2008, he along with IO Inspector Raj Kishore, HC Jitender, HC Ramesh, HC Baljeet went to Lucknow in a private vehicle and reached there on the night of 02­08­2008. On 03­08­2008 at about 10 am, they started from Lucknow for PS Shukal Bazar and reached there at about 2 pm. The local police FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 33 of 69 was informed and they went to the shop of husband of accused namely Dr. Subhash Banerjee who took all of them to a beauty parlour in the market and pointed out towards a lady sitting inside the parlour as his wife Laxmi. IO interrogated accused Laxmi and initially accused was refusing for her involvement in the present case but on detailed interrogation, accused confessed her guilt of committing murder of Harjinder Kaur. Accused Laxmi was arrested vide arrest memo Ex. PW11/A and her personal search was conducted vide memo Ex. PW11/B. Some wearing gold articles including silver anklet, bichua, silver ring, gold nose pin, one artificial mangalsutra were recovered from her personal search. The accused made her disclosure statement Ex. PW11/C. PW21 further stated that accused got recovered one mobile phone make Nokia 1110 of white, blue and silver colour and told that by this mobile phone she had talked with the deceased on the night of 27­07­2008. the mobile phone Ex. P11 was taken into possession vide memo Ex. PW11/D. PW21 also identified one pair of double cross ring Ex. P12; one pair of kundal Ex. P13 and one pair of tops Ex. P14 which were got recovered by accused from her beauty parlour at Shukal Bazar. During cross­examination, PW21 stated that she cannot tell the number and colour of the said vehicle however it was a Scorpio FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 34 of 69 car. PW21 stated that they stayed in Lucknow for overnight. They reached directly at PS Shukal Bazar. They left Shukal Bazar in the evening of 03­08­2008 with entire staff and the accused.

25. PW22 Ms. Rekha, Ld. ACJ stated that on 12­09­2008, she conducted TIP of case property vide Ex. PW22/A. PW23 WHC Sita Devi stated in his examination in chief that on 14­08­2008, she along with IO Inspector Raj Kishore, HC Jitender, HC Ramesh, Ct. Sunil and accused Laxmi @ Vijay Kumari went outstation for investigation at village Dhanesha Pathak, PS Shukal Bazar, Sultanpuri, UP and they reached at PS Shukal Bazar on 15­08­2008 at about 7/ 8 am. After taking one constable from there, they all reached village Dhanesha along with accused where accused pointed out towards her house and got recovered one almond colour purse from the pocket of one jacket lying in the almirah in a room. One LG Reliance mobile phone of silver and gray colour and one golden colour kangan having some engraving, one pair of golden ear chain were recovered from the purse. The accused told that the same belonged to deceased. The recovered articles were kept in a pullanda and sealed with the seal of RK and seized vide seizure memo Ex. PW14/A. The accused got recovered one passbook and one yellow colour slip of Bank of Baroda showing an amount of Rs. FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 35 of 69 12,000/­ deposited in her account on 02­08­2008. The slip and passbook were taken into possession vide memo Ex. PW14/B. The public persons were asked to join the investigation but they refused. However, the husband of the accused was present at the time of recovery of seized articles. During cross­examination, PW23 stated that they went in a private vehicle. It was about ten seater vehicle. He did not remember colour of the same. PW23 stated that on the way to Shukal Bazar, they took halt in between for dinner as well as for attending nature's call but he did not know the places where they stopped. They reached at the house of accuse at about 9 or 10 am. PW23 could not tell the number of public persons gathered there as she was having custody of accused. Jacket from which purse was produced was not seized. PW23 could not tell the exact time of their stay at the house of accused. PW23 did not recollect if they had gone to some other place also at the instance of accused or not. However, they visited the concerned PS thereafter but she did not remember the exact time of their reaching there. PW23 stated that they all started for Delhi on 15­08­2008 in the afternoon and reached Delhi on 16­08­2008 in the morning at about 6/ 7 am approximately.

26. PW24 ASI Ramesh Chand stated in his examination in chief that on 29­07­2008, he along with Inspector Raj Kishore went FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 36 of 69 to SGM hospital for getting the postmortem conducted on the body of Harjinder Kaur. After postmortem, doctor V. K. Jha handed over the viscera and other pullandas containing the clothes and chappals of deceased with sample seal which was taken into possession by the IO vide memo Ex. PW24/A. On 11­08­2008, PW24 along with IO went to Rohini court and IO moved an application for further interrogation of accused and thereafter they went to Tihar Jail no. 6 where supplementary disclosure statement of accused was recorded by the IO vide Ex. PW24/B. On 14­08­2008, accused was further interrogated with the permission of court and her second supplementary statement was recorded vide Ex. PW24/C. PW25 Sh. Kaushal Ghoshal, Nodal Officer, Vodafone brought the summoned record regarding mobile phone no. 9984418602 for the period 01­07­2008 to 30­07­2008 and data was pertaining to UP East circle and he exhibited the CDR vide Ex. PW25/A & Ex. PW25/B and requisite certificate u/s 65B vide Ex. PW25/C. In cross­ examination, PW25 stated that before issuing any mobile connection, proof of residence and proof of identity are required while filling up the application form. PW25 could not say if the said mobile phone no. was in the name of Smt. Laxmi or even otherwise, he did not bring any record showing the name of the person in FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 37 of 69 whose name the connection was activated. PW26 Sh. Israr Babu, alternative Nodal Officer, Vodafone Mobile Services Ltd. brought the CDR of mobile no. 9984418602 for the period 20­07­2008 to 30­07­2008 regarding Delhi roaming. The proved the call details of Delhi area vide Ex. PW26/A and requisite certificate u/s 65B vide Ex. PW26/B. PW27 Ct. Manish in his examination in chief stated that on 28­07­2008, he along with Crime Team reached H. No. A­4/1, Sector­4, Rohini, ground floor where a dead body was found in sitting position on a chair and the goods were scattered. He took the photographs of the spot and proved the negatives vide Ex. PW27/A1 to PW27/A10. During cross­examination, PW27 did not remember as to statement of any public witness was recorded in his presence or not.

27. PW28 Inspector Raj Kishore Singh stated in his examination in chief that on 28­07­2008, on receipt of call, he along with staff reached at A­4/1, Sector­4, Rohini, Delhi where ASI Om Prakash, SI Mahavir Singh and Ct. Balwan met him. Crime Team and Dog Squad also reached there. SI Mahavir prepared a tehrir on the basis of DD no. 15, PP Vijay Vihar and got the FIR registered through Ct. Balwan. PW28 inspected the spot. The steel almirah was opened with the help of key which was found in the room by SI FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 38 of 69 Mahavir. PW28 prepared site plan Ex. PW28/A. One half burnt bidi and half burnt matchstick lying at the spot were kept by PW28 in a plastic container and seized vide seizure memo already Ex. PW7/D after preparing a pullanda and sealing the same with the seal of RK. One "Tava" lying on the bed at the spot was kept by PW28 in a polythene and was seized vide seizure memo already Ex. PW7/B after preparing a pullanda with the seal of RK. One steel spoon which was in three pieces and lying there at the spot near an iron almirah was kept by PW28 in a plastic container and was seized vide seizure memo already Ex. PW7/C. One blood stained hand towel and one sofa cover having blood stains lying there on the Sofa at the spot were kept by PW28 in polythene and seized vide seizure memo already Ex. PW7/F after preparing a pullanda and sealing the same with the seal of RK. Two adult magazines and one adult story book and 12 unused Condoms lying there at the spot were kept by PW28 in a white polythene and seized vide seizure memo Ex. PW7/E after preparing a pullanda and sealing the same with the seal of RK. Fourteen jewellery articles which were there in the locker of the Almirah at the spot were kept by PW28 in a polythene and were seized vide seizure memo already Ex. PW7/A. Rs. 1,16,919/­ which were found in four ladies purses lying there in the locker of the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 39 of 69 Almirah at the spot, were kept by PW28 in a polythene and were seized vide seizure memo already Ex. PW7/G after preparing a pullanda and sealing the same with the seal of RK. On conducting search of the said room, Rs. 7,500/­ were also found in different clothes lying in the room at the spot. Same were kept by PW28 in a polythene and were seized vide seizure memo already Ex. PW7/H. PW28 recorded statements of Baljeet Singh and Sonu Mehar already Ex.PW7/K and Ex.PW15/E regarding identification of dead body and thereafter, he got the dead body of the deceased Harjinder Kaur shifted to Mortuary, SGM Hospital through Ct. Balwan. PW28 recorded statements of other PWs. Thereafter, PW28 along with staff and case property came back to PS and case property was deposited in malkhana. PW28 directed SI Mahavir to obtain the call detail record and ownership details of the Cellphone and land line phone of the deceased.

28. PW28 further stated that on 29.07.2008, he reached at the Mortuary and completed inquest proceedings vide request for postmortem Ex. PW15/C, brief facts Ex. PW15/D; Form No. 25.35 (1) (B) Ex. PW7/J and thereafter, he got the postmortem of the body of Harjinder Kaur conducted. After the postmortem, dead body was handed over to Sh. Baljeet Singh relative of deceased vide dead FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 40 of 69 body handing over memo already Ex.PW7/L. After postmortem, doctor handed over him one Viscera box, one pullanda containing clothes and chappal of deceased, both sealed with the seal of SGMH MORTUARY MANGOLPURI DELHI along with one sample seal. Same were seized by PW28 vide seizure memo Ex. PW24/A. On the same day, PW28 along with SI Manohar Lal and HC Ramesh Chand reached at the spot where at his instance, SI Manohar Lal took measurements and prepared rough notes and SI Manohar Lal handed over scaled site plan to him. On 30.07.2008, PW28 analysed the CDR of the cellphone of deceased bearing No. 9312589923 and found that the last call to this number was made from mobile No. 9984418602. PW28 also obtained the CDR of 9984418602 and came to know that this number was of UP and there were conversations between this number and another number 9899183465 belonging to one Sunil Kumar of Sultan Puri. On 30.07.2008 itself, said Sunil Kumar was interrogated and his statement was recorded who disclosed that the mobile number 9984418602 belongs to Smt. Laxmi r/o Shukal Bazar, Sultan Pur ( UP). PW28 recorded statement of Mahender Singh in whose name the mobile number 9312589923 was and he disclosed that deceased was his sister­in­law (Saali) and was using the said FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 41 of 69 cellphone which was purchased on his ID.

29. PW28 further stated that in the statements of Monika and Gurdeep recorded by PW28 on 28.07.2008, the name of Laxmi had figured and the last call was also made from her number to the number of deceased, as such, in the intervening night of 01/02.08.2008, PW28 along with HC Ramesh Chand, HC Baljeet, HC Jitender, W/HC Shailender and Ct. Sunil Kumar departed from PS Rohini and reached Lucknow in the intervening night of 02/03­08­2008 and halted at Lucknow and from Lucknow they reached PS Shukal Bazar, Sultan Pur on 03.08.2008 at about 01.30

- 02.00 pm. From PS Shukal Bazar, PW28 joined Ct. Umesh Pandey in the investigation of the case and thereafter, they all reached at the Clinic of Subhash Bannerjee, husband of Laxmi @ Vijaya Kumari situated at Shukal Bazar. PW28 made inquiry from Sh. Subhash Bannerjee regarding accused Laxmi and he led the police party to a nearby small beauty parlour in the name of Laxmi Beauty Parlour and there he pointed out towards accused Laxmi as his wife. Accused Laxmi on sustained interrogation with the help of W/HC Shailender, disclosed regarding her involvement in the present case. PW28 recorded her disclosure statement already Ex.PW11/C. Thereafter, she was arrested and her personal search FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 42 of 69 was conducted by W/HC Shailender vide memos respectively Ex.PW11/A & ExPW11/B. Pursuant to her disclosure statement, accused Laxmi took out one polythene from a small iron box which was found kept in an almirah built up in the wall of the said beauty parlour. The said polythene was containing one double cross ring, one pair of tops and one pair of ear rings. The said jewellery articles were seized after keeping the same in the said polythene and preparing a pullanda and sealing the same with the seal of RC vide seizure memo Ex. PW11/E. One mobile phone make Nokia 1110 of white blue and silver colour having IMEI no. 359389001728710 having a SIM of Number 9984418602 lying on a table in the said beauty parlour was produced by accused Laxmi saying that on 27.07.2008, she had made call to deceased Harjinder Kaur with the same mobile. The said mobile phone was seized vide seizure memo already Ex. PW11/D and it was not sealed for the purpose of investigation. PW28 recorded statements of PWs and thereafter, I along with police staff of Delhi and accused Laxmi in custody left Sultan Pur (UP) reached Delhi at about 09.00 am on 04.08.2008. Thereafter, accused led the police party to the spot and pointed out the spot vide pointing out memo already Ex. PW1/A. One witness namely Monika was also present there and she identified accused FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 43 of 69 Laxmi stating that she was the same lady who used to visit the house of deceased Harjinder Kaur and was also sitting with Harjinder Kaur in her house in the night of 27.07.2008. PW28 recorded statement of Smt. Monika. Thereafter, accused was produced before the Court and PW28 obtained her 3 days police custody remand. PW28 made efforts for the arrest of other accused namely Pappu and Krishan who were earlier named by accused Laxmi in her disclosure statement but in vain.

30. PW28 further stated that on 07.08.2008, accused Laxmi was remanded to J/C. On 10.08.2008, the said Krishan whose name figured in the disclosure statement of Laxmi met them but on interrogation, his involvement was not found in this case. Thereafter, with the permission of the Court, PW28 again interrogated accused Laxmi in the Jail and recorded her supplementary statement on 11.08.2008 Ex. PW24/B. On the basis of her supplementary disclosure statement, PW28 obtained her 2 days police custody remand on 14.08.2008 and approached one Ratan Aggarwal who was named by accused Laxmi in her disclosure statement dt. 11.08.2008 but his involvement was also not found in this case. Thereafter, they came back to PS and again interrogated accused Laxmi and recorded her second supplementary disclosure FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 44 of 69 statement Ex. PW24/C. In the said disclosure statement, she disclosed that, her brother Gyan Prakash @ Guddu was involved in present case along with her and in order to save Gyan Prakash @ Guddu, she had named other persons. On 14.08.2008 itself, PW28 along with HC Ramesh, HC Baljeet, HC Jitender, Ct. Sunil, lady Head Ct. Seeta Devi and accused Laxmi in custody left Delhi and reached Shukal Bazar, Distt. Sultan Pur (UP) in the morning of 15.08.2008. PW28 joined Ct. Umesh Pandey and one another constable of the local police in the investigation of the present case and thereafter, accused led them to her house situated at Dhanesha Pathak, Shukal Bazar. Husband of accused Laxmi namely Sh. Subhash Bannerjee was found present in the said house. In one room of the said house, one iron almirah was found kept and behind the said almirah, one old jacket was hanging on one nail and the accused took out one small purse of almond colour from the pocket of said jacked and produced the same before him and it was found containing one cellphone of LG Reliance, one "Kangan" of golden colour, one pair of chain for the purpose of attaching with the ear rings (Jhumki). Accused stated that these all the articles belonged to deceased Harjinder Kaur. The said articles were kept by PW28 in the same purse and thereafter the same was seized vide seizure FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 45 of 69 memo Ex. PW14/A. Thereafter, accused produced one passbook of Bank of Baroda in her name and one deposit slip of Rs. 12000/­ from beneath the mattress lying in the same room of the said house and disclosed that from the robbed amount, she had deposited Rs. 12000/­ in her said bank account. The said passbook Ex. P7 and deposit slip Ex. P6 were seized vide seizure memo Ex. PW14/B. PW28 prepared site plan of the place of recovery Ex. PW14/C. Thereafter, accused led the police party to her parental house situated at Hasanpur, Miruri in the area of PS Shukal Bazar where PW28 made search for accused Gyan Prakadh @ Guddu but in vain. Then PW28 along with staff and accused in custody reached Rehmat Garh, Mavaiyaha where he recorded the statement of one Manoj Kumar as he claimed to be the subscriber of phone number 9984418602 which was being used by accused and the said fact was also confirmed by accused Laxmi. PW28 recorded the statements of other witnesses. Thereafter, Ct Umesh Kumar Pandey of local police was discharged and PW28 along with staff and accused Laxmi left Distt. Sultan Pur and reached Delhi in the morning of 16.08.2008.

31. PW28 also stated that on 12.09.2008, he got the judicial TIP of the case property conducted through PW Monika. On FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 46 of 69 19.09.2008, PW28 got the exhibits of the present case deposited at FSL Rohini through Ct. Rajesh and recorded statements of Ct. Rajesh and MHC(M) PS Rohini. Thereafter, PW28 requested Manager, Bank of Baroda, Shukal Bazar Branch to freeze the account of the accused by way of a letter and got the same freezed. PW28 obtained NBWs against accused Gyan Prakash @ Guddu and made search for him but in vain. Thereafter, PW28 prepared charge­sheet against accused Laxmi and the same was filed in the Court. PW28 obtained the processes u/s 82 CrPC and 83 CrPC against accused Gyan Prakash @ Guddu and thereafter, he was declared proclaimed offender and he filed supplementary charge­ sheet against him as PO. PW28 collected FSL results and also obtained the final opinion regarding the cause of death on the PM report of deceased Harjinder Kaur and the same were filed in the Court. The mobile number 9312589923 of make LG Reliance was being used by the deceased which was recovered from the possession of accused Laxmi and was duly identified in judicial TIP by Monika. The mobile No. 9984418602 was being used by accused Laxmi in an instrument make Nokia 1110 which was recovered from her possession at the time of her arrest from the Beauty Parlour. As per the CDR of phone No. 9984418602 already Ex.PW26/A, on the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 47 of 69 day of incident i.e. 27.07.2008, two calls were made from this number on the number of deceased i.e. 9312589923 at 21:52:14 and 21:58:46 hours as reflected on page No. 5 of Ex.PW26/A at points B and C and the incident took place in the intervening night of 27/28­07­2008. As per the CDR and Cell ID, the location of the accused at that time was in the Rohini area. PW28 also identified hand towel Ex.P1; sofa cover Ex. P2; nighty / gown Ex. P3; slippers Ex.P4; biri Ex. P5; matchstick Ex. P6; pieces of spoon Ex. P7; Tava Ex. P8; magazines Ex. P9 (colly); condoms Ex.P10 (colly); mobile phone make Nokia 1110 Ex. P11; double cross ring Ex. P12; pair of kundal i.e. ear rings Ex. P13; pair of tops Ex. P14; purse Ex. P8; kangan Ex. P9; ear ring's chains Ex. P10 and mobile phone make LG Reliance Ex. P11

32. In his cross­examination, PW28 stated that a departure entry vide DD no. 10A dated 28­07­2008 was made when he left for the spot. However, the DD entry was not on record. The site plan Ex. PW28/A was prepared by PW28. PW28 admitted that there was no signature of either Smt. Monika or any person found present at the spot. PW28 stated that since there was no staircase inside the room where the deceased Smt. Harjinder Kaur was found that is why the same was not shown by him in the site plan. PW28 had not FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 48 of 69 prepared the memo of place from where the key of the locker was found by SI Mahabir who was present at the spot before his reaching there. PW28 admitted that he had not shown all the details of the articles found at the spot in the site plan prepared by him. PW28 stated that Monika told him the name of the accused but she did not tell him the description of the accused. PW28 admitted that public witness Baljeet was not residing at the place of occurrence at the time of incident and he was residing somewhere else in Delhi. PW28 stated that he had taken into possession 12 unused condoms found at the spot along with adult magazines and one adult story book. PW28 stated that inadvertently Manoj s/o Shiv Saran Tiari subscriber of mobile phone no. 9984418602 was cited by him as a witness during the course of investigation, however, during the trial it revealed from the said Manoj that in fact real subscriber was Manoj s/o Girja Shankar of the same village. PW28 further stated that he had not specifically obtained the documentary proof of ownership of the mobile phone used by witness Sunil. PW28 admitted that he did not bring on record the documents showing the ownership of mobile phone no. 9899183465 of PW Sunil Kumar. PW28 stated that he had not examined the other persons from whose telephones the calls were made and received on and from the landline no. of FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 49 of 69 deceased. PW28 admitted that there was no proof on the judicial file of reimbursement of expenses incurred during visit to Sultanpur. PW28 stated that there was no DD on record of arrival in the PS Shukal Bazar, however, it was made at the time of their visit to Shukal Bazar. PW28 admitted that Ct. Umesh Kumar Pandey was not cited as a witness in any of the document prepared by him on 03­08­2008. PW28 further stated that arrest memo and personal search memo also did not bear the signature of Ct. Umesh Kumar Pandey deputed in PS Shukal Bazar. PW28 admitted that even no public witness of PS Shukal Bazar was cited as a witness in the documents prepared on 03­08­2008. He volunteered that he had asked several persons of the neighbourhood of accused to join the investigation but all went without disclosing their names and addresses by showing their urgency. PW28 stated that on their refusal, he had not issued any notice to them as they did not disclose their names and addresses.

33. PW28 in his cross­examination further stated that despite the investigation carried out by him on 03­08­2008 in the presence of husband of accused, his signature did not appear on any of the documents except arrest memo. PW28 stated that vehicle was driven by their staff and no private driver was engaged to visit FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 50 of 69 Shukal Bazar. PW28 admitted that there was no proof of record to show whether the mobile no. 9984418602 was being operated or got off till 03­08­2008. PW28 further stated that first they went to PS Shukal Bazar from where Ct. Umesh Kumar Pandey accompanied them to the house of accused. PW28 admitted that DD regarding the departure of Ct. Umesh Kumar Pandey in PS Shukal Bazar was not on record, however, Ct. Umesh Kumar Pandey joined and signed the documents prepared on that day. PW28 admitted that no memo of giving the search of him and any team was prepared before entering into the house for the alleged recovery in pursuance of supplementary disclosure statement. PW28 further admitted that no expert opinion from the cellphone company was on record to show that SIM card was of cellphone no. 9984418602. Ct. Umesh Kumar Pandey also accompanied them during the course of investigation conducted at Rahmatgarh, Hassanpur, Meruri. PW28 admitted that no local person from Rehmatgarh, Hassanpur, Meruri was cited as witness. PW28 further stated that he had not taken into possession the jacket from which the alleged recovery was shown to be recovered at the instance of accused. PW28 stated that no Gram Pradhan or any respectable from the locality of PS Shukal Bazar was cited as witness in the documents alleged to have been FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 51 of 69 prepared by him at PS Shukal Bazar. PW28 stated that no information regarding the articles which were seized at the instance of accused at Shukal Bazar was given to PS Shukal Bazar as the same was not required under any provision of law. PW28 did not obtain the signature of local police officials of PS Shukal Bazar on the pullandas who joined investigation with him.

34. PW29 Dr. Dhruv Sharma, Asstt. Director, FSL Rohini stated in his examination in chief that he examined the blood sample in this case and proved his biological report as Ex. PW29/A ­nd serological report as Ex. PW29/B. PW30 Sh. V. Shankar Narayanan, Sr. Scientific Officer, FSL Rohini in his examination in chief stated that he examined two sealed parcels in this case and he proved his biological report as Ex. PW30/A and serological report as Ex. PW30/B. PW31 Amar Pal Singh, Asstt. Director, FSL Rohini stated in his examination in chief that he examined the exhibits in this case and he proved his detailed report vide Ex. PW31/A. PW32 Inspector Sanjay Gade in his examination in chief stated that on 28­07­2008, he was posted as In­charge Mobile Crime Team. On receipt of PCR call, he along with other members of team, reached at A­4/1, Sector­4, Rohini. PW32 inspected the spot and prepared his detailed report vide Ex. PW32/A and handed over to Inspector FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 52 of 69 Raj Kishore. He further stated that finger print proficient Ct. Chote Khan tried to lift the chance prints but no chance print could be lifted.

35. It is well settled proposition of law that where the case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence which has been well settled by the Hon'ble Supreme Court. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Hanumant Govind Nargundkar and another Vs. State of Madhya Pradesh, 1953 Crl.L.J. 129 (SC), it was held that in dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. In cases, where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 53 of 69 and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In Bhagat Ram Vs. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

36. Similarly, in the case of S. Chenga Reddy & Ors. Vs. State of A.P. (1996 (10) SCC 193), it has been observed as under:

"21.In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilty is drawn should be fully proved and as such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In Padala Veera Reddy Vs. State of A.P. (AIR 1990 SC

79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

37. In Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622), while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The doctrine of circumstantial evidence was again discussed and summarised in Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 55 of 69 2008 (1) JCC 597, it was held that it is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstance from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

38. In the present case, it is evident from the testimonies of PWs discussed above that PW16 has been stated to be the last seen witness who saw that accused Laxmi @ Vijay Kumari with one person wearing pants and shirt came outside the house of his mausi (since deceased) from ground floor at 1:45 am/ 2:00 am and in the morning of 28­07­2008, he heard the news of death of his mausi. PW16 in his cross­examination, could not tell the colours of salwar and shirt which the accused was wearing at that time. Even, PW16 also could not tell the colour of clothes of the person accompanied by the accused Laxmi @ Vijay Kumari. PW16 also could not tell the specific date when he had seen the accused Laxmi @ Vijay Kumari on previous occasions. It is strange that PW1 used to meet FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 56 of 69 deceased daily but she did not know as to what was the business of the deceased. PW1 herself admitted that it was easier to go to the first and second floor directly instead of going through the ground floor premises which was occupied by the deceased Harjinder Kaur. PW1 further admitted that any person who was aware about the key kept on the window by the side of main gate could use the same for entering into the house. PW1 also admitted that whenever her Jeth used to come to the house at night, it was not necessary for him to wake them up as he could go upstairs to second floor and even come to the kitchen on the first floor without disturbing or waking them up. Even in the daytime, no lock was put on the main gate of the house. PW1 also admitted that some persons usually visited the deceased everyday but she did not know any of those persons personally. PW1 even could not tell the number of persons who usually came to meet the deceased daily. PW1 never met with the accused which reflects from her reply during her cross­examination that "main Laxmi se kyun milungi". PW1 only stated to the police that on 27­07­2008 at about 1:30/ 1:45 pm, she found Harjinder Kaur sitting on a chair in a room. PW1 herself admitted that her statement was recorded by the police on 28­07­2008 but it was not read over to her by the police. It is also the fact that the house where the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 57 of 69 deceased was found dead was in the joint name of the deceased as well as her mother in law and even some case of family settlement was also pending in the court between the deceased and her mother in law. Further, no Will was left by the deceased and after death of Harjinder Kaur, the portion occupied by her in the said house has come in their occupation. Though PW1 stated that she used the mobile phone of deceased sometimes for talking to her husband at the shop but she did not tell the number of mobile phone of her mausi (since deceased) and PW1 also did not tell whether in the year 2008 at the relevant time, she was having her mobile phone or not. PW7 stated that deceased was his mausi (aunt) and he used to visit her occasionally. PW7 however, did not tell when he last met Harjinder Kaur prior to her death. The husband of his deceased aunt was divorced from her for more than 20/25 years. PW7 admitted that the deed of ownership of all the three floors of the house where Harjinder Kaur was found dead was one only. It has emerged from the above­discussed testimonies of PW16, PW1 and PW7 that they have not categorically stated that it was the accused Laxmi @ Vijay Kumari involved in the murder of Harjinder Kaur. The finding of guilt cannot be based on mere suspicion or a presumption and even suspicion however strong cannot take place FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 58 of 69 of proof. Therefore, PW16, PW1 and PW7 have not supported the case of the prosecution.

39. The Ld. defence counsel for the accused also argued that prosecution has failed to prove motive for the murder. Perusal of the testimonies of PWs reveals that PW7 admitted in his cross­ examination that locker of the almirah inside the house was opened by police officials after he and his mother's reaching there, the amount was recovered from the almirah. PW18 stated that locker of the almirah was found intact and small pouches and ladies purses were lying in the lock up which was opened and checked and the same were containing Rs. 1,16,919/­ and some gold & silver ornaments. Meaning thereby, the prosecution has not proved robbery of currency notes, gold and silver ornaments by the accused.

40. Let us further examine whether arrest of the accused Laxmi @ Vijay Kumari and recovery & seizure of the articles have been proved by the prosecution. PW11 stated that on 03­08­2008 at about 10 am, they went to Shukal Bazar and contacted local police. One Monika present at the house identified accused and told that on the intervening night of 27/28­07­2008, the accused was present with the deceased. PW21 stated that she along with IO Inspector FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 59 of 69 Raj Kishore, HC Jatinder, HC Ramesh and HC Baljeet went to Lucknow by private vehicle and reached there on the night of 02­08­2008. On 03­08­2008, at about 10 am, they started from Lucknow for PS Shukal Bazar and reached there at about 2 pm. The local police was informed and they went to the shop of the husband of the accused namely Dr. Shubhach Banerjee who took all of them to a beauty parlour in the market and pointed out towards a lady sitting inside the parlour as his wife Laxmi. However, PW21 in her cross­examination could not tell the number and colour of the vehicle in which they went to Lucknow but PW21 stated that it was Scorpio car. PW21 admitted that they stayed in Lucknow for overnight. PW21 stated that they reached directly at PS Shukal Bazar. PW28 stated that he had cited Ct. Umesh Kumar Pandey from local PS Shukal Bazar and even Ct. Umesh Kumar Pandey also accompanied them during the course of investigation conducted at Rehmatgarh, Hassanpur, Meruri but he admitted that Ct. Umesh Kumar Pandey was not named as a witness in any of the document prepared by him on 03­08­2008 and even arrest memo and personal search memo also does not bear signatures of Ct. Umesh Kumar Pandey. PW28 stated that he prepared site plan Ex. PW28/A and admitted that since there was no staircase inside the room where the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 60 of 69 deceased Harjinder Kaur was found that is why the same had not been shown by him in the site plan. PW28 further admitted that he had not shown all the details of the articles found at the spot in the site plan prepared by him. PW28 further admitted that Monika had told him the name of the accused but she did not tell him the description of the accused. PW28 also admitted that inadvertently Manoj s/o Shiv Saran Tiari subscriber of mobile phone no. 9984418602 was cited by him as a witness during the course of investigation. Even, PW28 did not obtain documentary proof of ownership of mobile phone used by witness Sunil. PW28 admitted that the vehicle was driven by their staff and no private driver was engaged to visit Shukal Bazar. PW28 also admitted that there is no proof on record to show whether the mobile phone no. 9984418602 was being operated or got off till 03­08­2008. PW28 admitted that no memo of giving search of him and his team was prepared before entering into the house for alleged recovery in pursuance of supplementary disclosure statement. PW28 further admitted that the jacket from which the alleged recovery had been made at the instance of accused was not taken into possession. PW28 admitted that no information regarding the articles which were seized at the instance of accused at Shukal Bazar was given to PS Shukal Bazar. FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 61 of 69 Even, he did not obtain signature of local police officials of PS Shukal Bazar to join investigation with him.

41. In State Vs. Naresh & Anr., 2012 [2] JCC 830, it was held by the Hon'ble High Court of Delhi that no independent public witness was joined at the time of alleged recoveries. It was further held that as per FSL report, no blood group was conducted on the knife. Mere recovery of knife and cricket bat was not enough to interfere that these weapons were used for committing the crime. In Wakkar and another Vs. State of Uttar Pradesh (2011) 2 Supreme Court Cases 306, it was held by the Hon'ble Supreme Court that recovery of incriminating articles at the instance of accused by itself cannot form basis of conviction. Recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well as chain of events suggesting involvement of the accused. It was further held that duty of the court is that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and circumstance so proved must form a chain of events from which the only irresistible conclusion about guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In Ajay @ Chotu Vs. The State, 2012 [2] JCC 1261, it was held by the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 62 of 69 Hon'ble High Court of Delhi that three conflicting versions undermine the prosecution's versions about arrest of the accused. Principle laid down by the Hon'ble Apex Court has been followed that the circumstances surrounding arrest of the accused and doubts emerging from the prosecution's case can be a ground for acquittal. In Mustkeem @ Sirajuddin Vs. State of Rajasthan, AIR 2011 SC 2769, it was held by the Hon'ble Supreme Court that evidence of recovery of weapons of offence at the instance of accused is unreliable as recovery memo was signed by Pancha witnesses at PS. Overwriting on recovery memo was also not explained. Therefore, circumstantial evidence was held not sufficient to convict the accused. It was further held that disclosure alone does not connect accused with crime. Close link between material object discovered and its use in commission of offence has to be proved.

42. In the present case, there is no public or independent witness to the recovery made at the house of deceased except signature of Baljit Singh who is relative of the deceased. There is also no public or independent witness of the other recoveries made at the instance of accused and even to the disclosure statement, arrest and personal search of the accused. The police officials are only interested in the success of their story and therefore the FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 63 of 69 testimonies of police officials cannot be believed without corroboration. In my considered opinion, statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and high­handed action against police officers. This is to lend credibility to the procedure relating to search and seizure. In Staila Sayyed Vs. State 2008 (4) JCC 2840, it was held that there was non­joining of public witness at the time of arrest of accused and recoveries. All the witnesses to the recoveries were police officials. Such recoveries do not inspire confidence. It seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt for the prosecution case. In Nanak Chand Vs. State, 1991 Rajdhani Law Reporter 62, it was held by Hon'ble High Court that if recovery is in the absence of witnesses, who could be available then it casts doubt on prosecution. In Dinesh Kumar Vs. State, 1998 [1] JCC [Delhi] 173, it was held by Hon'ble High Court that disclosure statement and recovery of knife not made in presence of independent witnesses. Only police constables are the witnesses. No explanation coming forth for not FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 64 of 69 joining independent witnesses.

43. PW28 Inspector Raj Kishore Singh stated in his cross­ examination that a departure entry vide DD no. 10A dated 28­07­2008 was made when he left for the spot. However, no such DD has been filed on record. PW28 also admitted that there is no DD on record of arrival in the PS Shukal Bazar but he stated that it was made at the time of their visit to Shukal Bazar. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 that "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."

44. PW23 could not tell during her cross­examination as to how many public persons gathered when the accused got recovered the articles. PW28 in his cross­examination also admitted that during the course of investigation conducted at Rehmatgarh, Hassanpur and Meruri, no local person was called as a witness. PW28 also FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 65 of 69 admitted that there is no signature of either Monika or any person found present at the spot. PW28 further admitted that no public witness of PS Shukal Bazar had been cited as a witness in the documents prepared on 03­08­2008. However, PW28 volunteered that he had asked several persons of the neighbourhood of accused to join the investigation but all went without disclosing their names and addresses by showing their urgency. PW28 admitted that on their refusal, he had not issued any notice to them as they did not disclose their names and addresses. PW28 also admitted that no Gram Pradhan or any respectable from the locality of PS Shukal Bazar had been cited as a witness in the documents alleged to have been prepared by him at PS Shukal Bazar. In this context, I would place a reliance upon the judgement reported in the case of State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held that the failure of the prosecution to examine independent witnesses though available is fatal for their case. In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that where the IO has failed to even note down the names and addresses of the persons, who have refused to join FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 66 of 69 as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful.

45. Further, in the circumstances of the present case, the accused Laxmi not giving any explanation in her examination u/s 313 Cr.P.C. could not be taken to be a circumstance pointing towards irresistible conclusion that she is involved in the commission of the crime. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. The Prosecution has failed to prove any of the circumstances relied upon by them. The case of the prosecution is only based on suspicion and it is a settled law that suspicion however strong, cannot take place of proof. In Ashish Batham Vs. State of M.P. 2002 (3) JCC 1883, it was held that realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, or probable it may be is no effective FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 67 of 69 substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true "and must be true" and this basic and golden rule only helps to maintain the vital distinction between conjectures and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. In State of U.P. Vs. Ashok Kumar Srivastava, 1992 (2) SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt. In Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court held that in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 68 of 69 distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to go to accused. In Vikramjit Singh @ Vicky Vs. State of Punjab, 2007 (1) CC Cases (SC) 35, it was held by the Hon'ble Supreme Court that where two views of a story appeared to be probable, the one that was contended by the accused should be accepted.

46. Thus, in view of my aforesaid discussion, I am of the considered opinion that Prosecution has not been able to prove its case against the accused Laxmi @ Vijay Kumari beyond reasonable doubt. Accordingly, the accused Laxmi @ Vijay Kumari is acquitted. The bail bonds of accused are extended for a period of six months u/s 437A Cr.P.C. File be consigned to record room with liberty to prosecution to revive the case file as and when accused Gyan Prakash @ Guddu who is PO, is arrested and produced before the court.

(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW­03:ROHINI:DELHI.

ANNOUNCED IN THE OPEN COURT on 20­12­2013 FIR No. 458/08; State Vs. Laxmi @ Vijay Kumari & Anr. Page 69 of 69