Delhi District Court
State vs . 1. Gurdeep Singh, on 29 August, 2018
1
IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. 1. Gurdeep Singh,
S/o Sh. Raghubir Singh,
R/o TA31, Shakar Bazaar Road,
Uttam Nagar, New Delhi.
2. Rehman Ali S/o Sh. Iftikar Ali,
R/o Asgar Road, Gher Shyamu Khan,
Imli Ke Niche, PS Ghumana Kotwali,
Farukhabad, Uttar Pradesh.
● CNR No. : DLSW010004202013.
● Registration No. of the Case : SC/440991/2016.
● SC Number : SC/141/2015.
● FIR Number : 15/2013.
● PS : Bindapur.
● Under Section : 302/34 IPC.
● Date of Institution : 10.04.2013.
● Case Committed to the Court of
Sessions for : 01.06.2013.
● Case Received by this Court by
way of Transfer on : 13.02.2015.
● Case Reserved for Judgment on : 10.08.2018.
● Judgment Announced on : 29.08.2018.
● Final Order : Conviction.
Page No. 1 of 44. State Vs. Gurdeep Singh & Another;
FIR No. 15/13 of PS Bindapur.
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JUDGMENT
FACTUAL BACKGROUND:
1. The following is a brief account of prosecution case and other relevant facts:
1.1 In this case, the FIR was registered on the complaint of Const. Sushil Kumar (PW3), who mentioned that on 10.01.2013, he was on patrolling duty alongwith Const. Rajender Kumar (PW5) and at about 11.20 pm, they received a wireless message that screams of a lady are coming from house no. A58, Nanhe Park, Uttam Nagar. Thereafter, they reached at the spot i.e. third floor of house no. A58 and found accused Gurdeep Singh coming out of door and he was frightened and his clothes were stained with blood. Thereafter, he was apprehended and when they entered into the house, they found that one lady (Falguni) was lying dead on the floor in the pool of blood and on inquiry, accused Gurdeep Singh informed that another culprit i.e. accused Rehman Ali is present inside the house. Thereafter, they went inside further and found that one child (Chetna) was lying dead in another room and in the third room, one person (Ashit Kumar), lying in injured condition, was breathing with efforts and then Page No. 2 of 44. State Vs. Gurdeep Singh & Another;
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3 second accused Rehman Ali, present near that injured person, was apprehended by Const. Rajender Kumar.
1.2 During investigation, the injured person was sent to the hospital by PCR van and the Crime Team inspected the spot and took photographs of the crime scene. Further, one bag having property documents, weapon of offence i.e. scissor and iron pieces, which were part of sewing machine, blood stained clothes, etc. were seized from the spot. The injured too succumbed to injuries.
2. After culmination of investigation, both the accused persons were chargesheeted and produced before the Court of Ld. Area MM. After complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
TRIAL PROCEEDINGS:
3. In light of the above stated facts and proceedings, vide order dated 05.07.2013, Ld. ASJ framed charges under Section 302/34 IPC against both the accused persons, to which they pleaded not guilty and claimed trial.
Page No. 3 of 44. State Vs. Gurdeep Singh & Another;
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4. For proving its case, prosecution has examined 33 witnesses.
4.1 PW3 Const. Sushil Kumar and PW5 Const. Rajender Kumar are the material witnesses, who had seen the accused persons in the vicinity of dead bodies at the place of incident. During his testimony, PW3 has mentioned about his statement Ex.PW3/A, on the basis of which the FIR was registered. Further, he is the witness to the following documents: arrest memo and personal search memo of accused Gurdeep Singh Ex.PW3/B and Ex.PW3/C respectively, seizure memo of two mobile phones Ex.PW3/D, seizure memo of two quarter liquor bottles Ex.PW3/E, seizure memo of blood samples Ex.PW3/F, seizure memo of jewellery of deceased lady Ex.PW3/G, seizure memo of property papers Ex.PW3/H, seizure memo of bag, blood stained shawl and wet blood stained clothes Ex.PW3/I, seizure memo of one mosquito net, one pair of shoes with black blood stained bra, one ladies purse and parts of sewing machine Ex.PW3/J, seizure memo of clothes of accused Gurdeep Singh Ex.PW3/K, disclosure statement of accused persons Gurdeep Singh and Rehman Ali Ex.PW3/L and Ex.PW3/M respectively. Further, PW5 became witness to the number of documents apart from seizure memos Ex.PW3/D to Page No. 4 of 44. State Vs. Gurdeep Singh & Another;
FIR No. 15/13 of PS Bindapur.
5 Ex.PW3/H i.e. arrest memo and personal search memo of accused Rehman Ali Ex.PW5/A and Ex.PW5/B respectively, seizure memo of blood taken from third room Ex.PW5/C, seizure memo of blood stained clothes of accused Rehman Ali Ex.PW5/D and seizure memo of clothes of the deceased taken after postmortem and viscera etc. Ex.PW5/E. 4.2 PW6 Dr. B.N. Mishra, Medical OfficercumMedical Legal Expert & Criminologist, Department of Forensic Medicine, DDU Hospital, had conducted postmortem of dead bodies of Chetna, Ashit Kumar and Falguni and gave his reports Ex.PW6/A to Ex.PW6/C respectively. Further, he mentioned that he had opined about the weapon of offence vide his subsequent opinion Ex.PW6/D. 4.3 PW7 HC Banwari Lal and PW17 ASI Khajan Singh were examined as they were the members of the Crime Team. PW7 mentioned that he took 25 photographs of the spot Ex.PW7/A1 to Ex.PW7/A25 and further produced their negatives Ex.PW7/B1 to Ex.PW7/B25. PW17 deposed that he had prepared the scene of crime report Ex.PW17/A. 4.4 PW9 Prakash Saxena, Assistant Nodal Officer of Aircel Ltd., was examined to prove the record Ex.PW9/A to Ex.PW9/D in Page No. 5 of 44. State Vs. Gurdeep Singh & Another;
FIR No. 15/13 of PS Bindapur.
6 respect of mobile phone no. 8802571891 issued in the name of accused Gurdeep Singh. PW10 Rajeev Sharda, Alternate Nodal Officer of Reliance Communications Ltd., was examined to prove the record Ex.PW10/A to Ex.PW10/C in respect of mobile phone no. 9015259405 issued in the name of Bharti W/o accused Gurdeep Singh. PW12 Chander Shekhar, Nodal Officer of Bharti Airtel Ltd., was examined to prove the record Ex.PW12/A to Ex.PW12/D in respect of mobile phone no. 9810878084 issued in the name of Bharti W/o accused Gurdeep Singh. PW31 Pradeep Singh, Nodal Officer of Vodafone Mobile Service Ltd., was examined to prove the record Ex.PW31/A to Ex.PW31/D in respect of mobile phone no. 8860886950 issued in the name of Manish Verma. PW31 further proved the record Ex.PW31/E (colly) in respect of alternate mobile phone no. 9811476160 and original mobile no. 9582388844 issued in the name of Rahul Arora. PW31 also proved the record Ex.PW31/F1 to Ex.PW31/H in respect of mobile phone no. 9654972119 issued in the name of Tillu and subsequently issued to Gurpreet Kalsi. PW31 also proved the record Ex.PW31/I to Ex.PW31/K in respect of mobile phone no. 9873885803 issued in the name of Sunil Kumar. 4.5 PW14 Bharti @ Rakhi, wife of accused Gurdeep Singh, Page No. 6 of 44. State Vs. Gurdeep Singh & Another;
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7 deposed that she had sold the plot situated at Bawana (documents of which were seized from the spot) to one Ashit Kumar (since deceased).
4.6 PW15, Sanjay Bhalla, testified that he had given his property i.e. third floor of property no. A58, Nanhe Park, Uttam Park, on rent to accused Gurdeep Singh and in the intervening night of 10/11.01.2013, the said floor was in possession of the said tenant, but he cannot identify him.
4.7 Rahul Arora, first informant, was examined as PW22, who mentioned that when he heard screams of a lady, he called the police. Further, he mentioned that a small tailoring unit was there on the upper floor, but he does not know who was residing on the said floor.
4.8 First IO SI Raj Kumar was examined as PW25 and during his testimony, he referred to his endorsement on rukka Ex.PW25/A and other documents exhibited during the testimony of PW3 and PW5.
4.9 PW32, second IO Inspector Subhash Chand, apart from referring the arrest memos, seizure memos and documents referred in the testimony of other investigation witnesses, mentioned about the site plan Ex.PW32/A1, request letters for Page No. 7 of 44. State Vs. Gurdeep Singh & Another;
FIR No. 15/13 of PS Bindapur.
8 providing CDR of mobile phone numbers of concerned persons Ex.PW32/K1 to Ex.PW32/K6, specimen signature of Bharti @ Rakhi taken on two sheets i.e. S1 and S2 Ex.PW32/L, FSL report of handwriting expert Ex.PW32/N etc. 4.10 Rest of the witnesses were formal or related to the investigation of the case.
5. Further, both the accused persons admitted certain documents u/s 294 CrPC i.e. FSL report dated 08.04.2013 Ex.PW32/O1, FSL report dated 15.10.2014 Ex.PW32/ND, FSL report dated 30.06.2014 Ex.PW32/O3 and FSL report dated 10.06.2013 Ex.PW32/O2.
6. Statement of the accused persons was recorded u/s 313 CrPC. When the accused persons were briefed on all the incriminating evidence and documents, they denied the allegations. Accused Gurdeep Singh admitted that his wife sold the plot at Bawana to deceased Ashit Kumar, but he mentioned that he was not having friendly relations with him. He further explained that on the date of incident, he went to the house of his friend Anil Kumar for having drinks and meals and at about 9.00 Page No. 8 of 44. State Vs. Gurdeep Singh & Another;
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9 10.00 pm, when he was passing through the street, where the place of incident is situated, few police officials asked him to come upstairs and help them in removing the injured persons to the ground floor, but he was stopped there for interrogation and further he was taken to the police station. Further, accused Rehman Ali mentioned that he used to work at the chicken shop of accused Gurdeep Singh at Matiala Road, but since the said shop was closed for few days, he went at the house of accused Gurdeep Singh to meet him in late evening, but he was not found there. He further explained that on next day, he again went to house of accused Gurdeep Singh, but he was not found available and when he was coming back, police apprehended him and took to police station, where accused Gurdeep Singh was already in police custody.
7. Accused Gurdeep Singh opted to lead evidence in his defence and examined one witness. DW1, Dharmender Bajaj, deposed that on 10.01.2013, at about 8.30 pm, he accompanied accused Gurdeep Singh to the house of their friend Anil Kumar at Nanhe Park, Uttam Nagar, for dinner party and after having drinks and dinner, all of them came out of the house in the street Page No. 9 of 44. State Vs. Gurdeep Singh & Another;
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10 at about 11.30 pm. Further, he mentioned that they heard screams coming from house no. A58 and people were going in and coming out from the said house and then accused Gurdeep Singh went upstairs to see as to what is happening and in the meantime, police officials also followed him. He further deposed that after waiting for some time, when accused Gurdeep Singh did not return, they went upstairs at third floor, where dead bodies were lying and accused Gurdeep Singh was also found standing there and told that the police officials are not allowing him to leave. Further, he stated that when they asked the police officials in this regard, they told them to leave the house, otherwise, they would also be got involved in the murder case.
APPRECIATION OF EVIDENCE:
8. I have heard the State through Sh. Girish Kr. Manhas, ld. Additional PP; accused Gurdeep Singh through ld. counsel Sh. R.N. Sharma; and accused persons Rehman Ali through ld. counsel Sh. V.S. Chauhan from DLSA. Case record is also gone through.
9. Ld. Additional PP summed up that PW3 and PW5 have Page No. 10 of 44. State Vs. Gurdeep Singh & Another;
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11 proved the facts that the accused persons were found in suspicious and frightened condition at the spot, where two dead bodies and one injured person were lying, and further that their clothes were also stained with blood. It is further submitted that the witnesses have proved that place of incident was taken on rent by accused Gurdeep Singh and the seizure of the original property documents, whereby a property at Bawana was sold by wife of accused Gurdeep Singh to deceased Ashit Kumar, from the spot corroborates the prosecution case that accused Gurdeep Singh and his associate i.e. accused Rehman Ali had called the deceased persons to the spot alongwith the documents with the motive that after murdering them, their dead bodies would be disposed of and the property documents would enable them to sell the property in market again.
10. On the other hand, ld. defence counsel had argued that there is no concrete evidence on record to show the involvement of the accused persons in the incident and there are number of loopholes in the prosecution case. Ld. counsel for accused Gurdeep Singh contended that convincing evidence has not been brought on record to show that PW3 and PW5 have gone to the spot while Page No. 11 of 44. State Vs. Gurdeep Singh & Another;
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12 on duty and furthermore, there are reasonable doubt in the prosecution case as to whether no other person had gone to the spot prior to arrival of the accused persons there. It was further argued that though the fact of tenancy of accused Gurdeep Singh in respect of place of incident is not proved, but otherwise also, the prosecution case does not inspire confidence as no person would commit murder of three persons in his own property after proper planning. It was further pointed out that the forensic evidence in respect of blood stains on the clothes of accused Gurdeep Singh is not material as blood group of the said accused was not checked. On behalf of accused Rehman Ali, ld. defence counsel had argued that the prosecution has not been able to justify the presence of accused Rehman Ali at the spot as he had no connection with the property and furthermore, any relation between both the accused persons has also not been proved on record. It was further argued that the prosecution has not been able to establish the motive of accused Rehman Ali to indulge in the said incident as there is no evidence on record to suggest that he was financially burdened and for arranging the funds, he helped coaccused Gurdeep Singh in murdering the deceased persons.
Page No. 12 of 44. State Vs. Gurdeep Singh & Another;
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11. In this case, there are following important points of determination:
(A) Whether only accused persons Gurdeep Singh and Rehman Ali were present alongwith dead bodies of Chetna and Falguni and injured person Ashit Kumar at the place of incident;
(B) Whether role of any other person in commission of murder can not be ruled out; and (C) Whether the accused persons had murdered the said three persons.
12. Admittedly, there is no direct evidence on record to show the involvement of the accused persons in the incident. Since the prosecution case is based on the circumstantial evidence, it would be beneficial to look at the law dealing with circumstantial evidence, before appreciating the evidence. In the decision of "Sharad Biridhichand Sarda Vs. State of Maharashtra", AIR 1984 SC 1622 (1), Supreme Court of India laid down about the conditions required to be fulfilled to establish a case on the basis of circumstantial evidence in following words:
Page No. 13 of 44. State Vs. Gurdeep Singh & Another;
FIR No. 15/13 of PS Bindapur.
14 "152. A close analysis of this decision ("Hanumant Vs. State of Madhya Pradesh", AIR 1952 SC 343) would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. ... ... ...
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
Now, it is to be examined as to what is the quality and quantity of circumstantial evidence, the prosecution has been able to bring on record to prove the culpability of the accused persons.
13. The prosecution has examined two material witnesses Page No. 14 of 44. State Vs. Gurdeep Singh & Another;
FIR No. 15/13 of PS Bindapur.
15 i.e. PW3 Const. Sushil Kumar and PW5 Const. Rajender Kumar to prove the presence of the accused persons Gurdeep Singh and Rehman Ali at the place of incident. Both have testified that on 10.01.2013, at about 11.20 pm, they were on patrolling duty on the government motorcycle and then they received a wireless message to the effect that a mobile call has been received that screams of a female have been heard while coming out from property no. A58, Nanhe Park, Uttam Nagar. Further, PW3 stated that the wireless message also provided the mobile number of the informant and thereafter, he called the informant, who disclosed his name as Rahul Arora (PW22) and confirmed about the information and gave the details of the location of the place of incident. It is further testified by both the witnesses that both of them reached at the spot i.e. third floor of the said property and when PW3 was about the enter the house, accused Gurdeep Singh was seen coming out of a room and he was frightened and having blood stained clothes. It is further mentioned that when PW3 caught hold of accused Gurdeep Singh and they entered inside the house, a lady was found lying dead in pool of blood in the first room. Further, they deposed that then accused Gurdeep Singh disclosed that one more person is present inside the other room Page No. 15 of 44. State Vs. Gurdeep Singh & Another;
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16 and when all of them went inside, dead body of a girl child was found in the second room and blood was found scattered in the adjoining kitchen. Both the witnesses further deposed that in the last room of the said floor, a person having injuries on his head, who was breathing almost his last, and accused Rehman Ali having blood stained clothes were present. It is further mentioned that then PW5 overpowered accused Rehman Ali and PW3 informed the SHO and in the meantime, PCR came and took the injured person to the hospital.
14. The testimony of aforesaid witnesses was challenged by defence side on several counts. Ld. counsel for accused Gurdeep Singh has put several questions to the witnesses pertaining to their duty roster on the day of incident, the issuance of wireless set and the entries in the log book pertaining to use of the government vehicle (motorcycle). Even though the prosecution side has not been able to bring on record the duty roster, the log book entries and the order for issuance of wireless set, but it is noteworthy that the defence side has not rebutted the fact that both the aforesaid police officials were on duty when they reached at the spot and not even a suggestion was given to these witnesses Page No. 16 of 44. State Vs. Gurdeep Singh & Another;
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17 in this regard to doubt that fact. It is noteworthy that in the complaint Ex.PW3/A, which resulted into FIR, it was clearly mentioned that the complainant left for patrolling duty after making DD entry no. 65B. The defence side has not challenged the said fact by giving a suggestion that no such DD was registered. Further, ld. Additional PP rightly pointed out that even a suggestion was given to IO (PW32) that both the said police officials were using the government motorcycle during their duty in beat area at the relevant time. Further, independent witness PW22 has also disclosed that two police official had come at the spot immediately after he sent information to police and these facts have been specifically suggested to this witness by defence side. In view of above, it stands established on record that PW3 and PW5 were on patrolling duty and they had gone at the place of incident at the relevant time.
15. Though accused Gurdeep Singh did not dispute the fact during cross examination of PW3 and PW5 that he was present inside the property when the said police officials arrived there, but during his statement u/s 313 CrPC, he took contradictory stand by saying that few police officials had asked him to come Page No. 17 of 44. State Vs. Gurdeep Singh & Another;
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18 upstairs and help them in removing the injured persons to the ground floor. Further, DW1, produced by accused Gurdeep Singh, deposed that it was accused Gurdeep Singh, who first went upstairs at the place of incident and the police officials had gone there after him. Therefore, in view of the testimony of the said prosecution witnesses and the defence witness, there remains no doubt that accused Gurdeep Singh was present inside the property, where incident took place, when PW3 and PW5 arrived there.
16. As far as presence of accused Rehman Ali at the spot is concerned, nothing could be extracted during cross examination of PW3 and PW5 to prove doubt on their version that accused Rehman Ali was also present in the last room of third floor flat, when they having coaccused Gurdeep Singh in their custody reached there. Ld. defence counsel had tried to challenge their testimony on the ground that accused Rehman Ali had no connection with the said property and in fact he was arrested on 11.01.2013 i.e. one day after the incident. This challenge is found to be baseless as not even a suggestion was given to PW3 and PW5 on behalf of accused Rehman Ali that he was not present at Page No. 18 of 44. State Vs. Gurdeep Singh & Another;
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19 the spot when the police arrived there or that he was apprehended next day. Furthermore, ld. defence counsel had also stressed on the testimony of PW15 Sanjay Bhalla, landlord/owner of place of incident, who stated that he had observed that the police officials had arrested accused Gurdeep Singh. Though it is evident that the said witness had not named accused Rehman Ali, however, it is pertinent to mention here that as per the prosecution case, the place of incident was given on rent to accused Gurdeep Singh by PW15 and moreover, it is no one's case that PW15 was also knowing accused Rehman Ali at that time. Furthermore, it can be seen that PW15 is not the witness of arrest of the accused persons and at the same time, he has not completely supported the prosecution case. Therefore, the omission made by this witness in naming accused Rehman Ali is not significant.
17. Moreover, ld. Additional PP has rightly pointed out that as per the prosecution case, the Crime Team (PW7 Const. Parvesh Kumar and PW17 ASI Khajan Singh) had reached at the spot at about 12.30 am on 11.01.2013 and thereafter, PW7 had taken 25 photographs of the spot and some of these clearly show the Page No. 19 of 44. State Vs. Gurdeep Singh & Another;
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20 presence of the accused persons in police custody (of PW3 and PW5) at the spot. The said photographs Ex.PW7/A1 to Ex.PW7/A25 alongwith their negatives Ex.PW7/B1 to Ex.PW7/B25 have been proved on record by PW7. It is evident that photographs Ex.PW7/A8, Ex.PW7/A9 and Ex.PW7/A20 clearly reflect the presence of both the accused persons in the custody of the police officials in the second room, where the dead body of the child was lying. Further, it is noteworthy that in the scene of crime report Ex.PW17/A, the Mobile Crime Team Incharge, PW17 ASI Khajan Singh, has clearly mentioned about the custody of suspected persons i.e. accused persons Gurdeep Singh and Rehman Ali and the defence side has not made any attempt to dispute it. This being the case, there remains no doubt that accused Rehman Ali was also present alongwith coaccused Gurdeep Singh at the place of incident when the police officials reached there and they were apprehended at the spot.
18. Further, it is noteworthy that the happening of the incident at the said property is not disputed by the defence side. The fact of murder of Ashit Kumar, Falguni and Chetna remains undisputed. Otherwise also, PW1, PW3, PW5, PW7, PW15, Page No. 20 of 44. State Vs. Gurdeep Singh & Another;
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21 PW17, PW24 (PCR official), PW30 and PW32, who had visited the spot, have proved the fact that the incident had taken place at A 58, Nanhe Park, Uttam Nagar, and the dead bodies/injured were lying there. Further unchallenged testimony of PW22 that screams of a lady were coming from said property, also lends credence to prosecution version. Further, postmortem reports Ex.PW6/A to Ex.PW6/C also confirm that Chetna, Ashit Kumar and Falguni were murdered.
19. Now, since it has been established that the accused persons were present at the place of incident, where injured Ashit Kumar and the dead body of Chetna and Falguni were lying, following two situations can exist:
(i) that the accused persons had murdered the said three persons; or
(ii) that the murder had taken place prior to arrival of the accused persons.
20. The defence side has argued in favour of condition number (ii). Ld. defence counsel submitted that accused Gurdeep Singh had gone upstairs at the place of incident after hearing Page No. 21 of 44. State Vs. Gurdeep Singh & Another;
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22 screams coming out of that place and there he found dead bodies lying and immediately thereafter, the police arrived at the spot. Further, it is mentioned that the police officials did not allow accused Gurdeep Singh to leave the place and he was falsely implicated to solve the blind murder case. On behalf of accused Rehman Ali, it was contended that he was arrested one day after the incident and thereafter, falsely implicated in this case. It was further argued on behalf of the accused persons that it has come in the testimony of independent witness PW22 Rahul Arora that prior to arriving of police officials, he had constantly heard the noise of several people coming up and getting down the stairs leading to the place of incident and, therefore, the involvement of other unknown persons in the incident was quite probable.
21. Thus, now this Court is required to examine the evidence and the material produced in this case to ascertain whether there was probability of involvement of unknown persons in the incident of murder of the said three persons or in other words, whether the murder had already taken place prior to arrival of the accused persons. First of all, it is noteworthy that no other person apart from the accused persons was present at the spot Page No. 22 of 44. State Vs. Gurdeep Singh & Another;
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23 when the police officials (PW3 and PW5) first reached there. It is pertinent to mention here that both these witnesses have categorically deposed that only the accused persons were present inside the place of incident and no suggestion was given to them by the defence side that any other person was also present there. Secondly, even accused Gurdeep Singh has not mentioned in his statement u/s 313 CrPC about the presence of any other person inside the flat when he went there.
22. Thirdly, as far as testimony of PW22 is concerned, though it gives an indication that few persons have gone up and come down prior to arrival of police and the noise made in the process was heard by PW22, however, it is to be noticed that this part of his statement is an improvement over the statement made to the police and otherwise also, that in itself is not sufficient to draw an inference that those persons had gone inside the top floor flat, where the incident took place. In view of this Court, it was quite natural for the local residents to inquire by going near or outside the said flat as to what was happening on the top floor, from where the screams of a lady were coming out. However, normally, when screams are quite loud, as these were in this case, Page No. 23 of 44. State Vs. Gurdeep Singh & Another;
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24 either someone may enter the flat to see what is happening or he may remain outside for the sake of not disturbing the privacy of the residents. It is pertinent to mention here that PW22 heard the noise of people going upstairs and coming down and he had not said that he heard anyone shouting that someone is attacking or killing the deceased persons. Had any person witnessed the dead bodies or injured persons at the place of incident, naturally he would have shouted for help or for informing the other residents about the incident. Further, PW22 had only heard the noise of moving people and he had not seen anyone and at the same time, IO (PW32) has also deposed that PW22 did not tell him that he had seen any person going up or coming down. Even PW22 had mentioned that after hearing the screams for some time, he came out of his house (at second floor) and went upstairs to know from where the noise is coming and when he became sure that it was coming from the top floor, he came back to his room and did not think it appropriate to enter the place of incident. Thus, it cannot be inferred from the statement of PW22 that any other public person had entered the place of incident and had seen the victims or dead bodies and it seems that few local residents like PW22 might have gone upstairs out of curiosity to know the Page No. 24 of 44. State Vs. Gurdeep Singh & Another;
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25 matter after hearing the screams.
23. Further, ld. Additional PP argued that the presence of the accused persons at the place of incident was not a coincidence as it was under tenancy of accused Gurdeep Singh and accused Rehman Ali was there to assist him being his employee. To prove the tenancy of accused Gurdeep Singh, the prosecution has examined PW15 Sanjay Bhalla and PW22 Rahul Arora. PW15 has deposed that he had given third floor of his property no. A58 to one Gurdeep Singh on rent and when he had reached the said place of incident at about 1.00 am, after receiving a call from the SHO, he had observed that the police had arrested Gurdeep Singh. Further, he has mentioned that he cannot identify accused Gurdeep Singh as the property was rented out through his neighbour Hanuman Singh, who had died. Further, PW22 mentioned that on the upper floor of his house, a small tailoring unit was there, but he is not aware who was residing there. During cross examination, PW22 had mentioned that he had heard the name of one Gurdeep Singh to be the occupant of the said floor at the time when he came there as tenant. Though both these witnesses failed to identify accused Gurdeep Singh as Page No. 25 of 44. State Vs. Gurdeep Singh & Another;
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26 tenant of the third floor i.e. the place of incident, but it stands proved on record that the person with the name of Gurdeep Singh was the tenant of the place of incident and it is important to note that no suggestion was given by defence side that accused Gurdeep Singh was not the tenant in that property. It is worth mentioning here that neither PW22 nor PW15 specifically stated that accused Gurdeep Singh was not the tenant of third floor. In view of this Court, it cannot be a mere coincidence that accused Gurdeep Singh was sharing the same name with the tenant. Furthermore, it appears that PW15 concealed few material facts and partly resiled from his statement given to the police by not identifying accused Gurdeep Singh as his tenant because his explanation that he used to give his property on rent through his deceased neighbour Hanuman Singh is not found convincing and this was even confirmed by his another tenant i.e. PW22, who denied the suggestion of defence side that his landlord (PW15) was not inducting tenants himself and that same was being done by some other person on his behalf. Furthermore, PW15 has also mentioned that his tenant Gurdeep Singh was arrested by the police when he reached at the place of incident and since it has been established on record that accused Gurdeep Singh and not Page No. 26 of 44. State Vs. Gurdeep Singh & Another;
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27 some other person with the same name was taken in police custody from the spot immediately after the incident, there remains no doubt regarding tenancy of accused Gurdeep Singh.
24. Further, it has not been challenged by the defence side that accused Gurdeep Singh was not doing the work of tailor at the relevant time as no such suggestion was given to any of the material prosecution witnesses (PW19, PW22 and PW32) and this omission supports the prosecution case. It is noteworthy that a sewing machine was seized from the spot vide seizure memo Ex.PW5/C and this fact remain unrebutted. On this aspect, it is also found that the defence side had tried to mislead the Court about the profession of accused Gurdeep Singh as accused Rehman Ali mentioned in his statement u/s 313 CrPC that accused Gurdeep Singh was running a chicken shop, whereas, DW1 disclosed that he was doing whitewashing work. Furthermore, the defence side has not been able to bring any material on record to show that some other person with the name of Gurdeep Singh was the tenant of PW15. Thus, it is held that the prosecution has been able to establish the fact that accused Gurdeep Singh was in occupation of place of incident as a tenant Page No. 27 of 44. State Vs. Gurdeep Singh & Another;
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28 of PW15.
25. Further, the prosecution has been able to bring on record sufficient evidence to show that accused Gurdeep Singh and deceased Ashit Kumar were well known to each other. Wife of accused Gurdeep Singh namely Bharti @ Rakhi (PW14) has deposed that her husband had purchased a flat at Bawana in her name and the same was sold by her to Ashit Kumar in May 2012. Further, PW19 Sanath deposed that he was well acquainted with deceased Ashit Kumar as both of them belonged to West Bengal and he was his friend for about 45 years prior to his death. He further mentioned that during his acquaintance with the deceased, he came to know that Ashit Kumar was friendly with accused Gurdeep Singh, who was working as Tailor in Karol Bagh and even the Ashit Kumar was working in the same street. Further, PW26 Shrawani Maajhi, sister of deceased Falguni, testified that her sister had told her one day that she had purchased a flat in Delhi. She further deposed that accused Gurdeep Sigh used to come to the house of her sister and one day she had seen her deceased brotherinlaw Ashit Kumar giving payment to accused Gurdeep Singh. She also mentioned that Page No. 28 of 44. State Vs. Gurdeep Singh & Another;
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29 Ashit Kumar treated accused Gurdeep Singh as his friend. In view of testimony of these witnesses, it can be held that accused Gurdeep Singh was well known to deceased Ashit Kumar and this fact contradicts the stand of accused Gurdeep Singh taken in his statement u/s 313 CrPC that he was not having any friendly relation with deceased Ashit Kumar. Thus, murder of Ashit Kumar and his family members in the tenanted premises of accused Gurdeep Singh is another incriminating circumstance pointing towards involvement of the accused persons.
26. Though ld. defence counsel argued that there is no relation between both the accused persons, but accused Rehman Ali has not disputed his acquaintance with accused Gurdeep Singh and he himself has admitted in his statement u/s 313 CrPC that he was an employee of accused Gurdeep Singh. Further, even a suggestion was given to PW3 by defence side that accused Rehman Ali was an employee of accused Gurdeep Singh. Moreover, it is found that the accused persons used to communicate with each other through mobile phone on regular basis at the relevant time. The personal search memo Ex.PW5/B shows that the mobile phone no. 9654972119 was found with Page No. 29 of 44. State Vs. Gurdeep Singh & Another;
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30 accused Rehman Ali and personal search memo Ex.PW3/C shows that the mobile phone no. 9810878084 was found with accused Gurdeep Singh at the time of their arrest. The call detail records of said mobile phones Ex.PW31/G and Ex.PW12/B respectively, make it clear that calls used to be exchanged between both the accused persons or their families frequently and even there was communication between them on the day of incident and preceding days.
27. Another relevant fact proved by the prosecution side is the subsequent conduct of the accused persons. Both PW3 and PW5 have mentioned that when they entered the place of incident, they found accused Gurdeep Singh in frightened condition and the defence side has not disputed this fact. In view of this Court, had accused Gurdeep Singh gone to the spot only to inquire as to what was happening there or to help the victims, he had no reasons to get scared. His condition of being frightened goes on to suggest that he realized that his culpability would be exposed and he would be arrested for his actions. Thus, his subsequent conduct is relevant u/s 8 of The Indian Evidence Act to establish the charge.
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31
28. Further, it can be noticed that both PW3 and PW5 have specifically deposed that when accused Gurdeep Singh was apprehended in suspicious condition at the place of incident, he disclosed that his associate (accused Rehman Ali) is also available in another room of the flat and thereafter, he took both the police officials to the last room, where accused Rehman Ali was present. Further, PW3 had also deposed that the door of the third room was closed and further PW5 deposed that accused Rehman Ali was found sitting besides seriously injured Ashit Kumar in that room. All these facts remain unrebutted on record and collectively they indicate that both the accused persons were present there with some ulterior motive. Had they gone at the place of incident only to check the incident, accused Gurdeep Singh would not have the knowledge of the presence of accused Rehman Ali in the last room of the flat and accused Rehman Ali would not have opted to stay in a closed room, where an injured person was lying in pool of blood. Thus, the presence of both the accused persons in aforesaid suspicious condition further strengthen the prosecution case that they were not the by passers, but had gone there intentionally with evil design.
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32
29. Further, both PW3 and PW5 have categorically deposed that when they reached at the spot, they found that both the accused persons were wearing blood stained clothes. The clothes of accused persons Gurdeep Singh and Rehman Ali were seized vide memos Ex.PW3/K and Ex. PW5/D respectively and the fact about blood stained clothes has been specifically mentioned in these memos. Further, IO (PW32) also proved the said seizure memos and explained that another set of clothes were arranged for the accused persons and the clothes worn by them at the time of their apprehension were seized. Furthermore, it can be clearly seen in the photographs Ex.PW7/A8, Ex.PW7/A9 and Ex.PW7/A20 that accused Gurdeep Singh was wearing blood stained sweater and dark coloured pants of both the accused persons appear to be wet at the spot when they were photographed by PW7. These clothes were sent to FSL and vide FSL report Ex.PW32/O3, it was confirmed that the sweater and pants of accused Gurdeep Singh were having stains of the same blood group as of one of the deceased persons and pants of accused Rehman Ali was also having human blood stains. On this aspect, ld. defence counsel emphasized that since the blood of the accused persons was not Page No. 32 of 44. State Vs. Gurdeep Singh & Another;
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33 checked, therefore, it cannot be ruled out that the said stains might be of the blood of the accused persons only. In view of this Court, even though the said FSL report is not sufficient to hold conclusively that the stains on the clothes of the accused persons were of the blood of the deceased only, but since it is not the defence of the accused persons that they were also injured in the incident or that they were having any bleeding injury suffered prior to the incident, there remains no ground to doubt that the said blood stains were pertaining to the deceased persons only.
30. The role of outsiders in the murder of said three persons can also be ruled out on the ground that the weapon of offence i.e. scissor, iron pieces of paddle and wheel of sewing machine, and jewellery i.e. ring, nose pin and earrings (tops) of deceased lady i.e. Falguni were seized from the spot vide seizure memos Ex.PW3/J and Ex.PW3/G respectively. Vide subsequent opinion Ex.PW6/D, it was confirmed that the injuries sustained on the bodies of the deceased could have been inflicted by weapons i.e. scissor and broken pieces of cast iron, which were part of sewing machine. In view of this Court, if any outsider would have been involved in this case, he would have brought the weapon of offence Page No. 33 of 44. State Vs. Gurdeep Singh & Another;
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34 with himself and further he could have easily taken away the said weapon and the jewellery of the deceased with him. In the given facts and circumstances of the case, it is certain that murders were not committed for the purpose of robbery and the culprit(s) was well known to the deceased persons.
31. In light of proved facts that the accused persons were present with two dead bodies and one injured in the premises under tenancy of one of them and both had been working with each other, the onus would lie on the accused persons u/s 106 of The Indian Evidence Act to establish the facts which are specially within their knowledge regarding the incident involving murder of three persons. Since the incident had happened within four walls of a house, which was under occupation of accused Gurdeep Singh and the time of incident and the manner of causing serious and multiple injuries are not in dispute, it was for the accused persons to explain as to how the said incident had happened. Since the accused persons failed to furnish any plausible explanation justifying their presence with the dead bodies/injured, an inference can be safely drawn that the victims' death is caused by both of them.
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35
32. Further, the defence put forth by accused Gurdeep Singh that he happened to be present at the spot by chance as he went there after hearing cries of a woman, is not found convincing. It is evident that accused Gurdeep Singh had taken different stands during trial. During cross examination of PW3, it was suggested that he had arrived at the spot few seconds before the police and he was in the process of giving first aid to the victims, whereas, he explained in his statement u/s 313 CrPC that police had arrived at the spot first and he was requested by them to come upstairs and help them in removing the injured persons to the ground floor. Third story was presented by DW1 Dharmender Bajaj by saying that he alongwith his friends Anil Kumar and accused Gurdeep Singh were passing through the spot and when they heard cries of a woman, accused Gurdeep Singh went upstairs and after sometime, police too went there and they wrongfully confined accused Gurdeep Singh at the spot. It is noteworthy that neither during cross examination of any of the prosecution witnesses nor during statement u/s 313 CrPC, it was disclosed by accused Gurdeep Singh that he was passing through the spot alongwith his friends Anil Kumar and DW1. It is evident that Page No. 35 of 44. State Vs. Gurdeep Singh & Another;
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36 name of DW1 was not disclosed at any stage of the trial prior to recording of his testimony.
33. Furthermore, it is difficult to believe the version of DW1 that only accused Gurdeep Singh opted to go upstairs to see as to what was happening at the place of incident and no reasonable explanation has come forward as to why DW1 and his friend Anil Kumar decided to stay on the ground floor. Further, this witness failed to furnish any reason as to why accused Gurdeep Singh was apprehended by the police officials though he had claimed that number of other persons were going inside and coming out of the place of incident simultaneously. In view of this, the testimony of DW1 is not found reliable.
34. Furthermore, it is difficult to accept the defence of accused Gurdeep Singh that after entering the place of incident, he decided to give first aid to the victims. In view of this Court, whenever a person would see 23 dead bodies in pool of blood, that too at some unknown person's residential place, his first reaction would be to shout for help or to inform the local residents. However, accused Gurdeep Singh has not even said that he Page No. 36 of 44. State Vs. Gurdeep Singh & Another;
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37 shouted for help from others. Furthermore, he has not explained as to why he decided to stay at the place of incident though number of other persons allegedly came out from there and his friends were also waiting for him down stairs. Further, ld. Additional PP rightly submitted that even the aforesaid defence was not put by accused Gurdeep Singh to his wife Bharti (PW14) and this omission suggests that the defence has been created subsequently to create doubt on the prosecution story.
35. Further, even defence of accused Rehman Ali is not found consistent. It is evident that during cross examination of IO (PW32), it was suggested that accused Rehman Ali went to the house of accused Gurdeep Singh on 11.01.2013 in the morning, and from there both of them were apprehended, but in his statement u/s 313 CrPC, accused Rehman Ali mentioned that accused Gurdeep Singh was not found available at his house in the morning of 11.01.2013 and when he was coming back, he was apprehended by the police and they took him to the police station, where accused Gurdeep Singh was already in their custody.
36. In view of above, it is clear that the defence of both the Page No. 37 of 44. State Vs. Gurdeep Singh & Another;
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38 accused persons is inconsistent, incomplete, improbable and perfunctory.
37. Though motive of the accused persons behind commission of alleged offence is not required to be established generally, however, it assumes importance when case rests on circumstantial evidence. In this case, prosecution has claimed that the accused persons killed Ashit Kumar and his family members as they wanted to take their original property documents, so that same may be used for disposing of the property again in market to arrange money for their needs. Though it is always difficult to prove the motive of the accused persons on the basis of direct evidence, but the prosecution has established few facts which are sufficient to convince this Court about the prosecution version related to motive of the accused persons. First of all, it is not disputed that the deceased persons were not residing at the place of incident and moreover, specific evidence has come in the form of testimony of PW26 that they were residing at Karol Bagh. Further, PW19 has also deposed that deceased Ashit Kumar was working at Karol Bagh. Secondly, it is to be noticed that the entire family had come to the Page No. 38 of 44. State Vs. Gurdeep Singh & Another;
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39 place of incident and it suggests that they were called at the place of incident for specific purpose. Thirdly, black bag (backpack) having entire set of original documents of the flat at Bawana, was seized from the spot vide seizure memo Ex.PW3/H and it is admitted that the said flat was sold by wife of accused Gurdeep Singh to deceased Ashit Kumar few months prior to the incident. Thus, these facts give strength to the prosecution allegation that deceased Ashit Kumar was asked to bring all the original documents to the place of incident on the pretext of arranging a meeting with prospective buyer. It is admitted fact that deceased Ashit Kumar had purchased the property from wife of accused Gurdeep Singh and she had purchased it from third person and all the original documents were handed over by her to deceased Ashit Kumar. This being the case, this Court finds force in the arguments of ld. Additional PP that after laying hands on the entire chain of original documents of the property, it would have been very easy for accused Gurdeep Singh to dispose of the property by destroying the last chain of documents executed by his wife in favour of deceased Ashit Kumar. In view of this, it emerges that accused Gurdeep Singh called the deceased persons at the place of incident alongwith original property documents Page No. 39 of 44. State Vs. Gurdeep Singh & Another;
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40 with an intention that he alongwith coaccused Rehman Ali would execute their plan of murdering the deceased persons in order to get the original property documents.
38. Considering the case in entirety, this Court is of the opinion that prosecution has been able to bring on record sufficient circumstances, which have been fully established and the chain of evidence formed by these circumstances is complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused persons. To sum up, the various facts forming links in the chain of circumstantial evidence in this case are listed as under:
(a) There was a fairly strong motive for the accused persons to commit murder of Ashit Kumar, Falguni and Chetna;
(b) Accused Gurdeep Singh was tenant in respect of place of incident;
(c) Accused Rehman Ali was well known to accused Gurdeep Singh;
(d) Only the accused persons were found alongwith the dead bodies of Falguni and Chetna and injured Ashit Kumar Page No. 40 of 44. State Vs. Gurdeep Singh & Another;
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41 at the place of incident;
(e) Role of outsiders in commission of murder of said persons is ruled out; and
(f) The clothes of the accused persons stained with the blood of the deceased persons were recovered at the spot.
39. These circumstances taken together advance the case against the accused persons very much beyond suspicion and reasonably and definitely point to the accused persons as the persons who committed the murder. It is found that evidence of the prosecution witnesses is clinching and of sterling quality. In such a situation, the wrong answers given by the accused persons qua their presence at the place of incident in their statement u/s 313 CrPC, would provide another link for forming chain of incriminating circumstances. (Refer: "Harivadan Babubhai Patel Vs. State of Gujarat", Crl. Appeal No. 1044 of 2010 decided on 01.07.2013.) Further, the following observations of the Supreme Court given in the decision of the case titled as "Deonandan Mishra Vs. The State of Bihar", AIR 1955 SC 801, on the issue related to effect of absence of or false explanation of accused are worth quoting:
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42 "It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved would afford a reasonable basis, for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain."
40. Further, though ld. defence counsel rightly pointed out that there have been certain defects in the investigation, but in view of this Court the overwhelming circumstantial evidence established on record by the prosecution side would negate the effect of said defects. In the opinion of the Court, no doubt, collection of additional material to show the fact that PW3 and PW5 were on duty; extra efforts on the part of the IO to collect evidence to prove the tenancy of accused Gurdeep Singh;
collection of chance prints from the crime scene; and joining of public persons in the investigation proceedings conducted at the spot; would have provided additional strength to the prosecution case, but, even in absence of the said evidence, the prosecution has been able to prove the complete chain of facts/incriminating Page No. 42 of 44. State Vs. Gurdeep Singh & Another;
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43 circumstances showing involvement of both the accused persons in the alleged offence and at the same time, the defence side has not been able to point out any reasonable doubt enabling the accused persons to ask for benefit of doubt.
41. The defence side has cited following judgments of the higher Courts in support of their submissions: Trilochan Verma Vs. State, 2013 (4) JCC 2585; Sudama Pandey & Others Vs. State of Bihar, 2002 (1) JCC 46; Nathiya Vs. State Rep. By Inspector of Police, Bagayam Police Station, Vellore, 2017 (1) JCC 110; Mukesh Vs. State; 2017 (1) JCC 594; Dr. Jhamman Lal Vs. State (Delhi Administration), 2011 (4) JCC 2932; Nagraj Vs. State Rep. By Inspector of Police, T.N., 2015 (2) JCC 1121; Daulat Ram @ Daulti Vs. State of Haryana, 2015 (3) JCC 1587; Arshad Hussain Vs. State of Rajasthan, 2013 (4) JCC 2559; Kalloo Passi Vs. State, 2009 (2) JCC 1206; Kamal Vs. The State (NCT of Delhi), 2012 (3) JCC 1537; Jitender Mahawar @ Kalu @ Pawan Vs. State, 2014 (4) JCC 2583; Mohd. Shahid Vs. State, 2014 (2) JCC 1305; Sita Ram Vs. State (Delhi Administration), 1997 (JCC) 637; Mukesh Kumar @ Pilwa @ Chuha Vs. State, 2012 (2) JCC 920; Om Prakash @ Bablu Vs. The State (NCT of Delhi), 2012 (3) JCC 1708; Deny Page No. 43 of 44. State Vs. Gurdeep Singh & Another;
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44 Bora Vs. State of Assam, 2014 (4) JCC 2678; Suresh @ Bona Vs. State, 2013 (4) JCC 2876; and Ashok Narang Vs. State, 2012 (1) JCC 482. After going through all these judgments, it is found that, for the reasons recorded above, these are not applicable to the facts of this case.
CONCLUSION:
42. For the reasons recorded above, this Court is of the opinion that the prosecution has proved its case u/s 302/34 IPC against both accused persons i.e. Gurdeep Singh and Rehman Ali beyond reasonable doubt and thus, they stand convicted for the said offence.
Announced in the open Court Digitally signed
on 29th day of August 2018. VIVEK by VIVEK
KUMAR GULIA
(total 44 pages)
KUMAR Date:
GULIA 2018.08.29
16:57:28 +0530
(VIVEK KUMAR GULIA)
ASJ03 & Special Judge (Companies Act)
Dwarka Courts (SW), New Delhi.
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