Delhi District Court
State vs . Santosh Etc. on 2 September, 2014
-: 1 :-
IN THE COURT OF SH. RAKESH KUMARII,
ADDITIIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
Unique Id. No. 02401R0431152007
SC No. 24/3/14
FIR No. 34/07
U/S 302/394/397/411/34 IPC
PS Patel Nagar
State vs. Santosh etc.
JUDGEMENT
1. Sl. No. of the case : 24/3/14
2. Date of Committal to Sessions : 30.04.2007
3. Received by this court on transfer : 10.05.2007
4. Name of the complainant : Smt. Chandra Prabha
5. Date of commission of offence : 16.01.2007
6. Name and Parentage of accused : (1) Santosh S/o Kusheshwar
(2) Santosh S/o Jhemu
(3) Bhola S/o Jeevach Das
7. Offence complained of : 302/394/397/398/412/34 IPC
8. Offence charged : 302/394/397/411/34 IPC
9. Plea of guilt : Pleaded Not Guilty
10.Final order :
11. Date on which order reserved : 26.09.2014
12. Date on which order announced : 29.09.2014
FIR No.34/07 State vs. Santosh 1/71
-: 2 :-
BRIEF REASONS FOR DECISION :
CASE OF THE PROSECUTION :
1. Case of the prosecution as per the charge sheet is that on 16.01.2007, on receipt of DD No.12A, ASI Bijender Singh reached at Sir Ganga Ram Hospital, who informed that one Gurcharan Lal Oberoi aged about 62 years, R/o 6/10, West Patel Nagar, Delhi, was admitted in the hospital, who was declared 'brought dead' and who was having injury marks on his neck. After receiving the information, Insp. Surender Kumar Verma alongwith SHO and HC Ajit Singh reached at Sir Ganga Ram Hospital where ASI Bijender Singh met them who handed over the MLC No. 087 and DD No. 12A dated 16.01.2007. Insp. Surender Kumar inspected the MLC as well as the dead body of the deceased and after leaving ASI Bijender Singh and HC Sagar Chand in the hospital, he alongwith the other police staff reached at 6/10 Patel Nagar and met Smt. Chandra Prabha Oberoi, wife of the deceased who got recorded her statement Ex. PW 1/A. She stated in her complaint that she is a house wife and having four daughters and out of four daughters, three are married and the youngest one Gitika is unmarried who is living with her. She stated FIR No.34/07 State vs. Santosh 2/71 -: 3 :- that the day before the incident, Gitika had gone to the house of her elder sister Pallavi. She stated that her husband after taking the dinner at 07.00 PM, went to his bedroom and slept there and his bedroom was situated on the first floor of the house and she slept in her bedroom which was situated on the ground floor. She stated in the complaint that in her house, two servants one male and one female are working who are using the second floor portion.
2. She stated that in the morning, at about 07.45 am, she received a phone call at his land line number 25884819 from her daughter Pallavi and she asked her about the mobile of her father and on her asking, she told her servant Chotu to go upstairs and ask about the mobile from her husband. She called her husband fourfive times and Chotu came back and he told her that Bau Ji is not getting up. After that, she herself had gone to the first floor and she saw that her husband was lying there and quilt was on his mouth and when she removed the quilt, she saw one injury on his neck and blood was oozing out from the injury. She immediately made a phone call to her daughters and also called her "Devar" and "Jeth" who were residing near her house. She stated in the complaint that her son in law Raman and other relatives took her husband to the hospital and the doctors declared her husband brought dead and she prayed for necessary action.
FIR No.34/07 State vs. Santosh 3/71 -: 4 :-
3. Insp. Surender Kumar Verma made endorsement Ex. PW8/C and handed over the same to Ct. Ajit Singh and FIR Ex. PW8/D was registered and Ct. Ajit Singh came back with the copy of FIR and original rukka. The crime team, dog squad, finger print expert and photographer were called. Crime team inspected the site, photographer took the photographs and finger print expert check the finger prints and site plan was prepared.
4. IO started investigation and in the bedroom on the first floor, he found white color pillow smeared with blood, one dora bniyan smeared with blood, one white color printed ladies half pyjama smeared with blood belonging to the younger daughter of the deceased namely Gitika, one printed blue color bed sheet smeared with blood and one yellow and gray color linedaar metress smeared with blood. All these articles were taken in a polythene bag and all these articles were wrapped in a white color cloth converted into a pullanda which was sealed with the seal of "SKV" and seizure memo in this regard is Ex. PW 1/B. IO moved an application Ex. PW 23/A for preserving the dead body in the mortuary for the postmortem and started searching for accused. On 17.01.2007, ASI Pritam Raj from police post Madipur informed him through telephone that accused Santosh S/o Kusheshar Saini, Santosh @ Nandu S/o Jhemu Mandal and Bhola have been arrested in case FIR No. 47/07 FIR No.34/07 State vs. Santosh 4/71 -: 5 :- u/s 25/27/54/59 Arms Act and 41.1 Cr.PC and they have confessed their crime in FIR NO. 34/07 u/s 302 IPC, PS Patel Nagar and they shall be produced in Rohini Court on 17.01.2007. After receiving DD NO. 4B dated 17.01.2007, Inspector reached at Rohini Court. Insp. Surender Kumar also procured the copies of disclosure statements, seizure memos of articles recovered from the accused persons. After taking the permission from the court, all the accused were arrested and their disclosure statements were recorded. On 18.01.2007, all the accused were taken to PS Patel Nagar and the accused persons led them to the place of occurrence and the accused persons pointed out towards the sewing machine from where accused Santosh S/o Kusheshwar picked up a scissors by which he and his associates gave the blow of the scissors on the neck of the deceased. Accused Santosh S/o Kusheshwar led them to first floor and produced the said scissors from the Cooler. After completing the necessary formalities, the charge sheet was prepared and presented in the court for decision.
CHARGE:
5. After conclusion of investigation, charge sheet under section 302/394/397/411/34 IPC was filed. After compliance of section 207 Cr. P.C., case was committed to Sessions. During the course of trial, accused were charged for commission of offence punishable under FIR No.34/07 State vs. Santosh 5/71 -: 6 :- Section 302/394/397/411/34 IPC by my Ld. Predecessor on 31.01.2008, to which, accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE:
6. To prove its case, prosecution cited 24 witnesses and all 24 witnesses were got examined followed by recording the statements of accused under Section 313 Cr.P.C. vide which accused claimed to be innocent but did not opt to lead evidence in their defence. STATEMENT OF ACCUSED:
7. Statements of accused persons were recorded wherein they have denied the case of the prosecution and stated that they are innocent and have been falsely implicated in this case.
DEFENCE EVIDENCE:
8. No defence evidence was led by accused persons.
ARGUMENTS /RELIANCE:
9. The record has been carefully and thoroughly perused . Submissions of Ld. Addl. PP for state and Ld. Counsels for accused have been heard. The respective submissions of either side as well as authorities relied by Ld. Counsels for accused have been considered.
10. Ld. Counsels for accused have relied on the following judgments:
1. J. T 2014 (1) S. C 508 State of Gujarat Vs. Kishan Bhai etc. CRL FIR No.34/07 State vs. Santosh 6/71 -: 7 :- A. 1485/2008
2. 2014 (3) SCC 412 Vijay Kumar Vs. State of Rajasthan Crl. A. 441/2009.
3. 1989 SUPP (2) SCC 706, Padala Veera RE004 Vs. State of Andhra Pradesh and Ors Crl. A. 420/89
4. J. T. 2008 (3) SC 130 Shanta Bai & Ors Vs. State of Maharashtra, Crl. A. 372/2006
5. J. T. 2008(1) SC 191Mani Vs. State of Tamil Nadu Crl. A. 443/2006
6. 154 (2008) DLT 730 (DB) Delhi High Court Liyakat Hussain Vs. State Crl. A. 128/2003
7. 2012 (3) JCC 2189 High Court of Delhi, Ashok Kumar Vs. State Crl. Al. 14/2011.
8. 2010 (3) JCC 1713 High Court of Delhi, Ram Pal Vs. State, Crl.
A. 18/2010.
9. 2013 (4) JCC 2470 High Court of Delhi, Bikal Bhanot @ Vicky Vs. State, Crl. A 14392012.
10. 2012 (3) JCC 150 High Court of Delhi, Akhtar Khan @ Vicky Vs. State, Crl. A. 16/2012.
FIR No.34/07 State vs. Santosh 7/71 -: 8 :-
11. Delhi High Court, Arun & Ors. Vs. State, Crl. A 773/2011.
12. Delhi High Court, Bhupinder Kumar Vs. State, Crl. A. 375/2006
11. I have heard the arguments of Ld. Addl. P.P. for state and Sh. K. Singhal and Sh. Naveen Gaur, Ld. Counsels for accused persons. I have carefully perused the entire case file.
12. At the onset, it would be appropriate to have a glance at the gist of the deposition of the witnesses examined by the prosecution.
13. PW1 Smt. Chandra Prabaha complainant is the wife of the deceased who was present in the house on the day of incident.
14.PW 2 Dr. B. N. Mishra conducted the postmortem of deceased Gurcharan Lal Oberoi who proved his report Ex. PW 2/A.
15. PW 3 HC Yogesh Kumar was working as MHC (M) at PS Patel Nagar who made entry after receiving/handing over the articles for investigation.
16. PW 4 Ritika is the daughter of deceased.
17. PW 5 Ct. Ajit Singh on 16.01.2007 was posted at PS Patel Nagar as constable who reached at the hospital and later on, reached at the spot along with the IO.
18. PW 6 Sushil Oberoi is the brother of deceased who identified the dead body of Gurucharan Lal Oberoi, whose statement Ex. 6/A was FIR No.34/07 State vs. Santosh 8/71 -: 9 :- recorded by the IO.
19. PW 7 Sh. Raman Vats is the son in law of the deceased.
20. PW 8 HC Pratap Singh was posted as duty officer and after receiving the telephonic information he recorded the information in DD register Ex. PW 8/A and also recorded the FIR Ex. PW 8/B.
21. PW 9 Ct. Bal Kishan was posted in mobile crime team, West district, Delhi and had lifted four chance prints from wooden Almirah and he prepared the print proficient report Ex. PW 9/A.
22. PW 10 Ct. Rakesh Kumar took six photographs from different angles of seen of crime and phtographs were Ex. PW 10/A (16) and their negatives Ex. PW 10/B 1to PW 10/B6.
23. PW 11 ASI Raj Bahadur Singh was present at Rohini Court when the accused were formally arrested by the IO.
24. PW 12 HC Sagar Chand accompanied the IO to DDU Hospital where the dead body of Gurcharan Lal Oberoi was kept and he ramained in the mortuary to look after the dead body.
25. PW 13 HC Dushyant was posted at PP Madipur on 16.01.2007 and he apprehended accused Santosh S/o Kusheshwar, Santosh S/o Jhemu and Bhola. The disclosure statement of accused Santosh S/o Kusheshwar Ex. PW 13/A, disclosure statement of Santosh, S/o Jhemu Ex. PW 13/D FIR No.34/07 State vs. Santosh 9/71 -: 10 :- and disclosure statement of Bhola Ex. PW 13/C was recorded in his presence. Personal search of accused Santosh S/o Kusheshwar, Santosh S/o Jhemu and Bhola were also conducted in his presence and the looted articles were also recovered in his presence.
26.PW 14 HC Sanjay was posted at PP Madipur and was on picket duty with HC Dushyant. This witness was present when Santosh S/o Kusheshwar, Santosh S/o Jhemu and Bhola were arrested. Disclosure statements were recorded in his presence and personal search of accused were also conducted in his presence.
27. PW 15 SI Anil Kumar was posted as Incharge, Crime Team who inspected the spot and chance prints were lifted by him and he prepared the crime team report Ex. PW 9/A.
28.PW 16 ASI Bijender was posted at PS Patel Nagar who after receiving the DD NO. 12A reached at Ganga Ram Hospital and obtained the MLC and informed the PS regarding the death of Gurcharan Lal Oberoi.
29.PW 17 HC Om Singh Parashar deposited Six Pullandas at FSL, Rohini.
30. PW 18 ASI Pritam Raj was posted at PP Madipur PS Punjabi Bagh and after receiving the information he reached at the place where FIR No.34/07 State vs. Santosh 10/71 -: 11 :- Santosh S/o Kusheshwar was apprehended by Ct. Dushyant and Ct. Sanjay. This witness was also present at the time of arrest of all the accused, at the time of recording the disclosure statement and at the time of conducting the personal search.
31. PW 19 Retired Insp. Devender Singh was working as drafts man and he prepared scaled site plan Ex. PW 19/A.
32.PW 20 Dr. Sanjay Solanki CMO identified the signature of Sunil Kumar on the MLC Ex. PW 20/A.
33.PW 21 HC Mahinder was posted at PS Punjabi Bagh and certain pullandas were deposited with him on 16.01.2007 by ASI Pritam Raj.
34.PW 22 Sanjay Kumar took 18 photographs of deceased Ex. PW 2/E1 to PW 2/E18.
35.PW 23 ACP Surender Kumar Verma was posted at PS Patel Nagar as Inspector Investigation on 16.04.2007 who recorded the statement of Chandra Prabha Oberoi Ex. PW 1/A, handed over the rukka for registration of FIR, lifted blood stained articles from the place of incident, moved application for conducting the postmortem etc.
36.PW 24 Insp. Kapil Parashar on 26.02.2007 was posted at PS Patel Nagar and investigation was marked to him and he produced weapon of offence before doctor and obtained his opinion, sent the case property FIR No.34/07 State vs. Santosh 11/71 -: 12 :- to FSL, Rohini, took the draftsman to the spot, moved an application for conducting TIP and after completion of investigation, challan was filed in the court.
Findings:
37. The case of the prosecution is that in the night of 1516.01.2007, the accused persons had committed murder of Gurcharan Lal Oberoi by pressing his mouth with pillow and caused injuries on his neck with a pair of scissors and they also committed robbery and to prove its case, prosecution examined the following witnesses:
38. PW 1 Smt. Chandra Prabha wife of the deceased deposed that on 16.01.2007, at around 07.45 am, she was present in his house alongwith her husband and at that time two servants, one male servant and one female servant were also present in the house. She stated that her house is a duplex house and she was on the ground floor and her husband was in his room on the first floor and her daughter Pallavi rang her up and inquired about the mobile of her husband and on this, she sent her male servant to her husband's room to inquire about his mobile. She stated that the servant called her husband twothree times and came back and told that her husband is not getting up. She went upstairs and she found that the quilt of her husband was over his head and when she removed the quilt, she saw bleeding on the neck of her husband and she FIR No.34/07 State vs. Santosh 12/71 -: 13 :- immediately rushed to her "JethJethani" and "Devar Devrani" who reside nearby. She deposed that they came there and told that her husband is no more and she informed her children and relatives and they all came to their house and her husband was taken to the hospital where he was declared "brought dead".
She further deposed in the examination in chief that police met her in the hospital and her statement Ex. PW 1/A was recorded and dead body of her husband was taken for postmortem. Police came to her house, inspected the site and she told the police that she had no suspicion on anybody, nor they had any enmity wit0h anyone. She stated that police seized the cloths of her husband and police also seized bed sheet, metresses and pillow vide seizure memo Ex. PW 1/B. She deposed that she found the wrist watch, purse and mobile of her husband missing after the incident. She also found that Rs. 43500/ kept in the Almira of her husband were also missing after the incident. She stated that police brought three boys to her house within a week and asked her to identify those persons and she could identify only one of the three boys who had worked as a servant in her house and whose name was Santosh S/o Kusheshwar. She deposed that wrist watch was of make Citizen of golden color and the mobile was of make Reliance bearing No. 9312967009. The purse of her husband was containing FIR No.34/07 State vs. Santosh 13/71 -: 14 :- some visiting cards, insurance card, his photograph and some money. During her examination inchief, the TIP proceedings Ex. PW 1/D were taken out and she identified her signatures on TIP proceedings at point A. MHC(M) also produced one sealed envelope which was opened during her examination in chief which found containing a wrist Watch make HMT Quartz of golden color Ex. P1. Purse was also produced and same found containing one photograph, one card of National Insurance Company Ltd., some money and visiting cards and articles were exhibited as Ex. P2, Ex. P3 and Ex. P4. Mobile was also produced and exhibited as Ex. P5.
MHC(M) also produced three envelops. One envelop had no seal impression but two envelops were sealed with the seal of "PRK".
(1) The first envelop found containing Rs. 14,000/ in the denomination of Rs. 100 each.
(2) The second envelop found containing Rs. 10,000/ in the denomination of Rs. 100/ each.
(3) The third envelop found containing currency notes of Rs. 16,000/ in the denomination of Rs. 100/ each.
All the currency notes were shown to the witness PW 1 who identified the same as robbed from her house and collectively exhibited as Ex. P6, P7 and P8. This witness was cross examined by the Ld. counsels for FIR No.34/07 State vs. Santosh 14/71 -: 15 :- the accused persons and the relevant portion of the cross examination is as under:
" The police officials had taken away the male servant with them and kept him there and made inquiries from him. The maid was not taken by the police officials. I cannot say whether statement of maid servant was recorded or not. It came to my knowledge that the offenders might have entered from the front gate. Vol. In fact the back door was closed. It is correct that there were valuables lying in the other room as well as in my bedroom including the cash, jewellery etc. which were not touched by the entrants. It is correct that the rooms in my house has inter connected entries and they were not locked during the night time. It is correct that I have not produced any bill/cash memo of Reliance Mobile, Wrist Watch and purse. The police had not obtained my signatures on the currency notes or any particular mark of identification were made on the same".
39. PW 2 Dr. B. N. Mishra Medical Officer, DDU hospital, Delhi deposed that on 17.01.2007, he conducted the postmortem of deceased Gurcharan Lal Oberoi and he gave the opinion as to cause of death which is as under:
OPINION AS TO CAUSE OF DEATH
1. The cause of death was due to asphyxia consequent upon combined effects of forcefully closing of nostrils and mouth by some soft object like pillow, clothes etc. and puncturing of the air passage (trachea) as mentioned in injury No. 2 (vide para external injuries).
FIR No.34/07 State vs. Santosh 15/71 -: 16 :-
2. All injuries were ante mortem in nature;
3. The time of death about half an hour after taking food (dinner) on the night of 15.01.2007;
The clothes of the deceased, blood sample of deceased taken, sealed and handed over to police. 18 photographs were taken during the postmortem and the same were handed over to IO. He prepared his detailed report Ex. PW2/A and the opinion as to cause of death is Ex. PW 2/B. The subsequent opinion as to weapon of offence dated 22.03.2007 is Ex. PW 2/C and the sketch of weapon is Ex. PW 2/D. Pullandas sealed with the seal of "FSLRK" was produced and opened and scissors Ex. P1 is taken out and shown to the witness. The witness had identified the same to be the weapon which was produced by IO. The photographs handed over by him to IO are Ex. PW 2/E1 to Ex. PW 2/E18.
40. P3 HC Yogesh Kumar deposed that on 16.01.2005, he was working as MHC(M) at PS Patel Nagar and following articles were deposited with him which are as under:
(i) On 16.01.2005, five sealed parcels were deposited with him.
(ii) On 17.01.2005, two sealed parcels were deposited with him.
(iii) On 18.01.2005, one sealed parcel was deposited with him.
(iv) On 06.02.2005, eleven sealed parcels were deposited with him.
FIR No.34/07 State vs. Santosh 16/71 -: 17 :-
(v) On 22.03.2007, one sealed parcel containing scissors was taken by the IO for subsequent opinion.
(vi) On 23.03.2007, six sealed parcels were sent to FSL Rohini for analysis at the request of IO through HC Om Singh alongwith forwarding letter, sample seal and true copy of RC bearing no. 70/21.
41. PW 4 Ritika daughter of the deceased deposed that on 15.01.2007, she had gone to the matrimonial house of her sister Pallavi Vats at C40, Shivalaya, First floor, Delhi and on 16.01.2007 she was informed that her father had been murdered and thereafter she came to her house. She deposed that her sister Pallavi and her husband Raman Vats also came to the house and at her house, she came to know that her father had already removed to Sir Ganga Ram Hospital. Police officials present at her house asked them to search the missing articles and she herself and her mother had searched the house and they found that cash of Rs. 43,500/, one wrist watch Citizen Quartz of Golden Color, one mobile phone of Reliance and purse containing the documents belonging to her father missing. She deposed that at the time of incident, the grill installed on the first floor of the house was not properly closed and entry could be made through the said grill and the accused Santosh was their servant and he had knowledge about the said fact. This witness was cross examined and the relevant portion of cross examination is as FIR No.34/07 State vs. Santosh 17/71 -: 18 :- under:
" The grill above stated was broken for the last around six months before the incident. This was broken since the time the house was under construction. This fact was also known to the labourers who had been coming for the construction of the house".
42. PW 5 Ct. Ajeet Singh deposed that on 16.01.2007, he alongwith other police officials reached at Ganga Ram Hospital. ASI Bijender Singh met them there and he handed over the MLC of deceased to Insp. Surender Kumar Verma. He stated that thereafter he alongwith SHO and Insp. Surender Kumar verma reached at the spot i.e. West Patel Nagar where statement of Smt. Chandra Prabha Oberoi was recorded by Insp. Surender Kumar Verma and made her endorsement and handed over the same to him for getting the FIR registered and after the registration of the case, he came back to the spot and handed over the original rukka and copy of FIR to the IO.
43.PW 6 Sh. Sunil Oberoi deposed that on 17.01.2007, he and Raman Vats identified the dead body of Gurcharan Lal Oberoi where his statement Ex. PW 6/A was recorded by the IO.
44. PW 7 Sh Raman Vats deposed that on 16.01.2007, at about 07.45 am, his wife made a Telephone call to her parents and at that time his mother in law went upstairs and found his fatherin law dead inside the FIR No.34/07 State vs. Santosh 18/71 -: 19 :- room and this information was received by them on phone. He stated that after that he alongwith his wife reached at the house of his in laws and they took Sh. Gurcharan Lal Oberoi to Ganga Ram Hospital as they had noticed some injuries on his neck and other parts of the body and in the hospital, his father in law was declared "brought dead".
45.He deposed that on 18.01.2007, he was present in his matrimonial home and one inspector namely Verma alongwith some constables came at the spot alongwith three accused persons and they led the police persons to the terrace in front of the first floor of the house where one tin shed room was located. There was a cooler lying in front of the tin shed and from the cooler, one out of three accused persons whose name was being used by the police as Santosh took out one scissors which belongs to his in laws house and he had noticed blood stains over the scissors. He deposed that his motherin law was running boutique at home and scissors had been used and he identified the sketch of the scissors Ex. PW 7/A and he also identified one scissors Ex. P1. Scissors was converted into the parcel and one document Ex. PW 7/B was compared by the police officials. This witness was cross examined at length and relevant portion of the cross examination is as under:
" I had stated before police in my statement that my wife had made call to her father on the day of incident in the morning. Confronted with statement Ex. PW FIR No.34/07 State vs. Santosh 19/71 -: 20 :- 7/DA wherein it is not so recorded. When we received information about the incident, we (I and my wife) left our house within two-three minutes. My mother and grand mother were present in our house when we proceeded to the matrimonial house. No else was present in our house. We reached at my matrimonial house within 30 minutes when my fatherin law was being taken out from the main gate by my younger sister in law Ritika Oberoi @ Radhika Oberoi, my elder brother in law Vineet Sehgal. My mother in law was running a boutique in house. There were two tailors at her boutique in those days. Some time two tailors used to come in the aforesaid tin shed room for their tailoring work. One very young boy aged about 1213 years, domestic servant at the house of my mother in law. Perhaps, one female servant was working in those days at my matrimonial house. I had seen all the three accused persons very first time on 18.01.2004, when police officials had come at my parental house alongwith them. Room in which occurrence took place was at the first floor of the house which was being used for the study and accounts by him. Sometimes,my fatherin law used to sleep there after late hours. The bedroom of my father in law was at the ground floor of the house, there he used to sleep alongwith his wife.
I do not remember whether my statement was recorded by the police but I was interrogated by the police 56 times. The police did the writing work at terrace but I do not know either the nature of the documents that they prepared, nor whether I signed the same. The police informed us that they had arrested all the three persons by the afternoon of 16.01.2007. It is correct that I never seen Santosh S/o Jhemu and Bhola before 18.01.2007 nor they had ever come to my in laws house in my presence. These two boys did not point out any place where the scissors were FIR No.34/07 State vs. Santosh 20/71 -: 21 :- hidden, or any other case. Vol. all three accused narrated the incident before me but the aforesaid two accused did not point out any place in my presence. It is correct that because I was in a perturbed state of mind, I cannot say as to which accused narrated what".
45.PW 8 HC Pratap Singh deposed that on 16.01.2007, during his duty at about 09.05 am, he received telephonic information from Ganga Ram Hospital about the admission of injured Gurcharan Oberoi and he recorded this information in DD register at Sr. No. 12 Ex. PW 8/A. He further deposed that at around 09.45 am, he received information from ASI Vijender about the death of the aforesaid injured in the hospital and he recorded this information in DD register Ex. PW 8/B. He stated that at around 11.45 am, rukka Ex. PW 8/C was presented before him and he recorded the FIR Ex. PW 8/D and copy of FIR and rukka was sent to the IO.
46. PW 9 Ct. Bal Kishan deposed that on 16.01.2007, he reached at H. No. 6/10, West Patel Nagar, Delhi and he lifted four chance prints from wooden Almirah and he prepared finger print proficient report Ex. PW 9/A.
47. PW 10 Ct. Rakesh Kumar deposed that on 16.01.2007, he reached at H. no. 6/10, West Patel nagar and took six photographs Ex. PW 10/A (16) of seen of crime and negatives Ex. PW 10/B1 to Ex. PW 10/B6.
FIR No.34/07 State vs. Santosh 21/71 -: 22 :-
48.PW 11 ASI Raj Bahadur Singh deposed that on 17.01.2007, he and HC Sagar Chand joined the investigation with Insp. Surender Kumar Verma and they reached at Rohini Court. There accused persons were been produced by the police officers of PS Punjabi Bagh and they all were arrested vide arrest memos Ex. PW 11/A to Ex.PW 11/C. Their disclosure statements EX. PW 11/D to Ex. PW 11/F were recorded by the IO and they led us to the place of occurrence to get recovered the scissors and accused Santosh S/o Kusheshwar lifted one scissors from the place near cooler and it is the same scissors by which they had committed the murder of Gurcharan Lal Oberoi. This witness was crossexamined and the relevant portion of cross examination is as under:
" The arrest memo of accused Santosh S/o Kusheshwar was prepared on 17.01.2007 at PP Madipur PS Punjabi Bagh. I do not remember the time when the arrest memo was prepared. The disclosure statement of accused was also recorded in the police post. At the time of recording the statement myself, Insp. S. K. Verma, HC Sagar Chand and other police officials were present. No Public persons were called at the time of recording the disclosure statement. I do not remember the exact time of recording of disclosure statement. I do not remember the time when the scissors was picked up from FIR No.34/07 State vs. Santosh 22/71 -: 23 :- the spot".
49. PW 12 HC Sagar Chand deposed that on 17.01.2007, he accompanied the IO to DDU hospital where the dead body of Gurcharan Lal Oberoi was kept. He remained there in the mortuary to look after the dead body and after the postmortem the dead body was handed over to legal heirs of the deceased and on 17.01.2007, Doctor handed over sealed parcels and sealed parcels were seized by the IO vide memo Ex. PW 12/A. In the cross examination, PW 12 stated that he does not remember the time when both the accused persons namely Santosh S/o Busheshwar and Bhola were arrested.
50. PW 13 HC Dushyant deposed that on 16.01.2007, he was posted at PP Madipur PS Punjabi Bagh and he alongwith Ct. Sanjeev was on picket duty at Rohtak Road, Shiv Mandir. He stated that at about 08.00 PM, one person was coming from the Rohtak Road and at that time, he tried to hide himself and on seeing the police, he started walking at a fast speed and tried to slip away. On the basis of suspicion, he chased the accused person and on this, he had taken out a fire arm/ Desi Katta from his dub and pointed out the same towards him and started running and without taking care of his life, he apprehended the accused. On inquiry, the name of the person was revealed as Santosh S/o Kusheshwar. In the meantime, Ct. Sanjeev reached there. Information FIR No.34/07 State vs. Santosh 23/71 -: 24 :- was given at PP Madipur and then ASI Pritam Raj reached at the spot and they produced the accused alongwith Katta before ASI Pritam Raj. Thereafter, ASI Pritam Raj had asked threefour passers by to join the investigation but none of them joined. On conducting his personal search a sum of Rs. 16,000/ in denomination of Rs. 100/ each and a Citizen Quarts Watch of Golden Color were recovered from the pocket of his wearing jacket. Accused was interrogated and he revealed that amount and watch had been looted by him alongwith two other persons namely Santosh S/o Jhemu and Bhola and the disclosure statement of accused Santosh S/o Busheshwar is Ex. PW 13/A. He disclosed that he alongwith his associates namely Bhola, Santosh S/o Jhemu in the intervening night of 1516.01.2007, where he used to work as domestic servant committed the murder of his master Gurcharan Lal Oberoi by causing injury and committed robbery of Rs. 43,500/, wrist watch, Mobile phone and a purse. A sum of Rs. 16,000/ came in his share and he can get his associates arrested. The recovered currency notes and the wrist watch were kept in separate sealed parcels and taken into possession vide memo Ex. PW 13/B. He stated that at the instance of Santosh S/o Busheshwar another accused namely Santosh S/o Jhemu and Bhola were apprehended and their disclosure statements Ex. PW 13/C and PW 13/D were recorded. In the personal search of accused FIR No.34/07 State vs. Santosh 24/71 -: 25 :- Bhola, 14,000/ rupees and mobile phone make LG was recovered which was taken into possession. A sum of Rs. 13,500/ and certain documents were recovered from the possession of accused Santosh S/o Jhemu and were seized vide memo Ex. PW 13/E.
51. He further stated that the wearing clothes of all the three accused had blood stains and the clothes were wrapped in different white cloth parcels and parcels were taken into possession vide memo Ex. PW 13/F to PW 13/F3. Accused persons also disclosed that they had purchased certain articles from the looted amount and accused Bhola produced a suit case which contained some new clothes and "Chappal" and same were taken into possession vide memo Ex. PW 13/G. He stated that the accused persons took them to place of occurrence and pointed out the place and pointing out memo Ex. PW 13/H was prepared. Envelops containing currency notes were also produced which are already exhibited as Ex. P6, P7 and P8 which were identified by this witness. One black color bag containing some clothes were produced and this witness identified the same as the one belonging to the accused Santosh @ Nandu which are collectively exhibited as Ex. P9. Another suit case containing new cloths, one diary and some documents were also produced which were identified by witness and collectively exhibited as Ex. P10. One black color shirt and one pink color were produced and FIR No.34/07 State vs. Santosh 25/71 -: 26 :- exhibited as Ex. P11 and P12. One green and red color shirt having white color lines and one black color jeans were produced, identified and exhibited as P13 and P14. One black color shirt having silver color designing and khakhi color pant were produced and exhibited as Ex. P15 and P16. This witness was cross examined and by Ld. Counsels for accused and the relevant portion is as under:
" Santosh S/o Kusheshwar was apprehended by me and Ct. Sanjay at around 08.00 PM. Many persons were passing on that way. Many persons were asked near the place of arrest to join the investigation but they refused. The cash was recovered from the accused at around 08.30 PM. The katta was recovered at 08.00 when the accused was apprehended. No public person was present when the confession of the accused was recorded at the spot of arrest. I cannot tell the time when it was recorded. At the time of his apprehension, the accused Santosh S/o Kusheshwar disclosed about the murder committed by the accused persons on the previous night at Patel Nagar. However, he did not tell the exact time of occurrence at Patel Nagar.
I went to D5556, Shakur basti, J.J. Colony on 17.01.2007 at 05.00 am. IO had called the other residence of the house to join the proceedings but they had declined stating that they do not want to get involved in any such proceedings. IO did not keep any record of the name, address or any other particulars of the people who were requested to join the proceedings but declined. No notice was served to them for their refusal to join the proceedings. No inquiry was conducted either by me or by IO as per my information with regard to the presence/absence of Santosh S/o FIR No.34/07 State vs. Santosh 26/71 -: 27 :- Jhemu and Bhola on the intervening night of 16.01.2007 and 17.01.2007. I did not note down the number of LG phone which I claimed to be recovered from Bhola. I did not know the telephone number of deceased on the basis of which I could connect the phone Ex. P5 to the deceased. Neither me nor the IO as per my information got the details from mobile company regarding the owner ship of the said phone or that the phone was been used by the deceased. I did not note down the sim number or battery number of the phone Ex. P5. It is incorrect to suggest that EX P5 has been planted upon the accused Bhola and that same has not been recovered from his possession.
I had neither got the photocopies done nor got the photographs of the currency notes as claimed to have been recovered from accused Santosh S/o Jhemu and Bhola. I had also not recorded the number of the currency notes anywhere. No initials either of myself or the IO or anyone else appended on the currency notes. It is correct that the purse Ex. P4, Watch Ex. P1 and the Phone Ex. P5 are easily available in the market. It is correct that neither of the aforesaid articles or the papers including the currency notes have any blood stains. It is correct that neither Ex.P1, P4 and Ex. P5 have any such identification mark which can connect them to the deceased. Vol. The Mobile if switched on will display a photograph of deceased and his wife. I cannot say if the IO had specified in the memo or any other document regarding the photograph of the deceased and his wife on the mobile Ex.P5. I had not recorded the said fact anywhere. At this stage, mobile Phone Ex. P5 has been ordered to be charged so that the wall paper/screen saver can be observed by the court.
It is wrong to suggest that the said mobile phone has been wrongly shown to be FIR No.34/07 State vs. Santosh 27/71 -: 28 :- recovered from Bhola. It is wrong to suggest that the same has been planted upon him with the help of family of the deceased. It is correct that Ex. P9 (cloths) and P10 (Cloths, one diary and some documents) were never got sealed. It is correct that Ex. P9 and Ex. P10 are easily available in the market and they do not bear any such mark or identity which can connect them with the accused. It is correct that Ex.P9 has old cloths but it is wrong that Ex. P10 does not contain old cloths or lady cloths. It is correct that no list of articles as contained in Ex. P9 and P10 were prepared. It is wrong to suggest that Ex. P9 and P10 have been planted upon the accused. The cloths of accused which were blood stained were worn by them when they were seized. It is wrong to suggest that no blood stained cloths were seized from the accused persons. I do not remember if "Chappals" were recovered from Ex. P9 and P10. I might have mistaken about the recovery of "Chappals" in my examination in chief. I might have vaguely remembered that "Chappals" were there. I know the difference between Raxine and Leather. I cannot say if Ex.P4 is Raxine or leather. It is wrong to suggest that instead of tracing actual culprits the accused persons have been implicated in this case".
51. PW 14 HC Sanjay deposed that on 16.01.2007 he was posted at PS Punjabi Bagh Chowki Madipur and was on picket duty with Ct. Dushyant. He stated that at about 08.00 PM, one person i.e. Santosh S/o Kusheshwar was seen coming from the side of Rohtak Road who turned back on seeing the police party and on the basis of suspicion, he was chased by Ct. Dushyant. On this, the accused whipped out a katta from the right side dub of his pant and pointed the same at HC Dushyant.
FIR No.34/07 State vs. Santosh 28/71 -: 29 :- However, Dushyant over powered him after a brief struggle and by the time, I also reached to help Ct. Dushyant. He further stated that Ct. Dushyant informed the matter at PP Madipur and then ASI Preetam Raj reached at the spot and they produced the accused with loaded katta before ASI Preetam Raj. Thereafter, ASI Preetam Raj had asked three four passer by to join the investigation but none of them joined and left the spot without disclosing their name and addresses. ASI Preetam Raj unloaded the katta and completed the investigation after geting an FIR NO. 47/07 registered at PS Punjabi Bagh. He stated that on conducting his personal search a sum of Rs. 16,000/ and citizen Quartz Watch of Golden Color were recovered.
52.He further deposed in the examination in chief that the accused Santosh was interrogated and it was revealed that the above amount and watch had been looted by him alongwith other two persons namely Santosh S/o Jhemu and Bhola. This witness has deposed almost similar to that of PW 13 namely HC Dushyant Kumar but relevant portion of cross examination is as under:
" The accused had made a disclosure statement with regard to the present case after his arrest at about 11.00 or 11.30 PM at the place of his apprehension. No public person was present at the time of his apprehension.
We went to D5556, Shakur Basti, JJ colony On 17.01.2007 at about 06.30 or 07.00 FIR No.34/07 State vs. Santosh 29/71 -: 30 :- am. The aforesaid building is three storied. It is correct that the said building has many residence. I cannot say as to how many rooms are there in the said building. The IO did not call any resident of the building to join the proceeding. IO did not conduct any inquiry or verification to find out about the presence/absence of Santosh S/o Jhemu and Bhola on the intervening night of 16/17.01.2007 neither himself nor through me. We did not record the number of the mobile claimed to have been recovered from Bhola. The said mobile phone was seized after taking into possession however, it was sealed at the police station. Neither the IO Nor I had noted down the number of mobile, number of a sim card and number of the mobile of deceased. I do not know if the IO had taken out the details of the ownership of the mobile alleged to be that of deceased and claimed to have been recovered from Bhola. Except for the photograph of the deceased which was there on the screen as a screen saver, there was nothing for me to come to the conclusion that the mobile phone belonged to the deceased.
The number of currency notes that were claimed to have been recovered from Santosh S/o Jhemu and Bhola were not noted down by the IO or me. The currency notes were also not got photocopied. The currency notes were also not got initials/signed by the IO or myself. I do not recall the shape of the watch. The strap was of metal chain of golden color. I do not remember whether the watch had a white dial or color dial Court Observation: At this stage, it is noted that the dial of the watch is round and the strap is of metal golden color.
It is correct that watch Ex. P1 has no stain of blood. It is correct that this type of watch is easily available in the market. It is correct that Ex. P1 has broken glass, an FIR No.34/07 State vs. Santosh 30/71 -: 31 :- old watch and not an expensive watch. The purse Ex. P4 was of black color. I understand the difference between Leather and Raxine. The purse Ex. P4 was a Raxine purse. It is correct that the purse EX.P4 is of Leather and not of Raxine. It is correct that Ex. P4 is a kind of purse which is easily available in the market. It is correct that Ex. P4 is not an expensive purse. It is wrong to suggest that purse Ex. P4 is wrongly shown to be looted from the deceased. I reiterate my deposition in chief that the amount in the purse was Rs. 35,00/ with the denomination of Rs. 1000/ each and three notes of Rs. 500 each.
Court observation: The notes have been taken out from the purse, which has two notes of 1,000/, Three notes of Rs. 500/, Two notes of Rs. 100/ each and one note of Rs. 10/. One of the notes of Rs. 100/ is torned into two pieces while the other is partially torned.
It is wrong to suggest that nothing was recovered from the possession of the accused. I have stated by mistake in chief that there are two passport size photographs. In fact, there was only one passport size photograph in the purse. I cannot say today whether the said two visiting cards contained in the purse were that of deceased himself or of someone else. There were two slips of the bank in the purse. However, I cannot tell the name of the bank.
Court Observation: There is only one bank Slip of Karur Vyas Bank in the purse Ex. P3.
It is wrong to suggest that the slip, photographs and I card of the deceased were subsequently planted in the purse. I do not remember if there was any blood spot either on the outer body of the purse or in the internal side of the purse. The IO had checked the contempts of the bag Ex. P9 before taking the same in his possession.
FIR No.34/07 State vs. Santosh 31/71 -: 32 :- The IO had prepared the inventory of the contents which were lying in Ex.P9. My signatures were also obtained on the said inventory. CT. Dushyand had also signed the said inventory.
(At this stage, the court file is perused. Neither any inventory nor any seizure memo pertaining to bag Ex. P9 claimed or alleged to have been recovered from Santosh @ Nandu S/o Jemu Mandal. It is also observed that the seizure memo pertaining to Ex. P9 pertains to Santosh S/o Kuleshwar.
The LG Mobile has been charged in the court and on the switching on the same, on the screen saver, there is joint photograph of a man and woman and also on the screen saver is written "G. Oberoi"
Court Observation: The photograph of a man when compared with the photograph of the deceased on the court file is of him. A perusal of a miss call shows that last number as 9810096666 on 16.01.2007 at 09.57 am. The last number from which call has been received is 01142251811 on 16.01.2007 at 09.00 talk time 1 minute and 11 seconds. The last dialed number is 9910789175 on 16.01.2007 at 08.14 am, talk time 04 seconds. The second last dialed number is to one Ritika Oberoi at 06.34 am on 16.01.2007 and talk time is 2 minutes and 10 seconds. I am not aware whether any investigation was done with regard to the dialed numbers, received calls and missed calls of the mobile phone Ex. P5. It is incorrect to suggest that no disclosure was given by the accused and nothing was recovered at their instance".
52. PW 15 SI Anil Kumar stated that on 16.01.2007, he was posted as Incharge crime Team West District and after receiving the information FIR No.34/07 State vs. Santosh 32/71 -: 33 :- he reached at the spot i.e. 6/10, West Patel Nagar, Delhi and inspected the spot. Photographs were taken and four chance prints were lifted from the spot by the finger print expert and on the basis of inspection, crime team report Ex PW 9/A was prepared.
53. PW 16 ASI Vijender deposed that on 16.01.2007, he was posted at PS Patel Nagar and after receiving the information he went to Ganga Ram Hospital and one person namely Gurcharan Lal Oberoi admitted in the hospital was declared "brought dead" by the doctor. He stated that he obtained the MLC and informed to the PS vide DD No. 13A already exhibited as EX. 8/B and Insp. S. K. Verma alongwith the staff came to Ganga Ram Hospital and he handed over the MLC and other documents to the IO. He alongwith HC Sagar Chand remained in the hospital with the dead body and IO left the hospital for the spot. HC Sagar Chand deposited the dead body at DDU hospital.
54. PW 17 HC Om Singh Parashar deposed that on 23.03.2007, MHC(M) handed over to him six pullandas duly sealed alongwith FSL form for depositing the same at Rohini, FSL and accordingly he deposited the pullandas at FSL Rohini and obtained the receipt.
55. PW 18 ASI Pritam Raj deposed that on 16.01.2007, he received DD No. 42 regarding information sent by Ct. Dushyant Kumar who was FIR No.34/07 State vs. Santosh 33/71 -: 34 :- with Ct. Sanjay who apprehended a person with loaded country made pistol. He reached at Shiv Mandir Road near Rohtak Road and above named Constables produced accused Santosh S/o Kusheshwar with loaded country made pistol. He stated that he recorded the statement of Ct. Dushyant and seized the country made pistol and cartridge vide seizure memo Ex. PW 18/A. He also prepared the sketch of the country made pistol and cartridge and made endorsement on the statement of Ct. Dushyant and got the case registered at PS Punjabi Bagh vide case FIR NO. 47/07. He stated that he interrogated the accused Santosh who disclosed that he killed Gurcharan Lal with scissors and two other Co accused covered the mouth of Gurcharan Lal with a pillow and took away Rs. 43,500/, one watch, mobile and purse from the house of Gurcharan Lal. Witness further stated that accused produced one watch make Citizen Quartz and Rs. 16,000/ in the denomination of Rs. 100/ each. He stated that at the instance of accused Santosh other two co accused were also arrested and amount and mobile were also recovered from them. This witness deposed similar to that of Ct. Sanjay PW 14. Relevant portion of the crossexamination is as under:
"The cloths of accused Santosh S/o Kusheshwar were seized on 17.01.2007 and two Constable were with him. The cloths worn by accused Santosh S/o Kusheshwar were seized in PP Madipur. No public person was called as a witness.
FIR No.34/07 State vs. Santosh 34/71 -: 35 :- He was asked to remove his cloths which were seized. When his cloths were seized, he was wearing a jacket. Vol. The jacket was not seized as it was not blood stained. The jacket was returned to him which he wore again. On 16.01.2007, a loaded desi katta was recovered from Santosh S/o Kusheshwar at 08.00 PM. His disclosure was recorded at 11.00 pm on the spot i.e. Shiv Mandir Road, New Rohtak Road. No public person was joined as a witness as they refused. I remained at the spot till 11.30 pm. Santosh S/o Kusheshwar was wearing Shirt, Jeans and Jacket of dark color. At that time, I did not notice any blood stains on his cloths. It was only the next day on 17.01.2007 when the accused persons were taken for preparation of pointing out memo and after they had given their disclosure statement that the cloths of Santosh S/o Kusheshwar were blood stained at about 08.00 am. The pointing out memo was prepared at about 07.30 am on 17.01.2007 and at that time, no public person was present.
We had reached at D55/56 Shakur Pur Delhi at around 06.307.00 am. This house is a Three story building. It is correct that the said house has various residence staying therein. I did not make any effort to join any resident in the proceedings that I claimed were conducted by me there. Vol. As it was early morning of the winter season. Again said nobody agreed to join the proceedings. I did not give notice to anyone for refusing to join the proceedings. Vol. In fact, in that room alongwith Santosh S/o Jhemu and Bhola, there were three more boys were sleeping, who got up and left the room. We did not make any effort to stop them from leaving the room or make any interrogation/inquiry from those three boys. We also did not take down their names, addresses or any other particulars. I also did not deem it FIR No.34/07 State vs. Santosh 35/71 -: 36 :- necessary to call up the family members of the deceased and informed them that we were interrogating and arresting the accused persons wanted in this case and therefore they should also come to the said house and join the proceedings. The mobile phone that I claim was recovered from Bhola was seized by me at the spot itself before reaching the police station. I did not note down the telephone no. or any other identification no. like sim etc. of the said phone. I also did not take out the ownership details of the said phone.
I did not note down the numbers of currency notes that I claimed were recovered from Santosh S/o Jhemu and Bhola. I also did not put my initials on the said currency notes. I also did not get the same photocopy. The wrist watch Ex. P1 has a dial of white color."
Court Observation: The dial is golden in color. It is correct that the said watch is easily available in the market and inexpensive. Ques: You have claimed that you recovered one black color Raxin purse from Santosh S/o Jhemu which contained visiting Card, Insurance Card of Gurcharan Lal Oberoi, some bank slips in the same name, two passport size photographs, two visiting cards, Rs. 3,500/ in it. Kindly tell, how many bank slips were contained in the said purse and its description?
Ans: There was only one bank slip however I cannot say to which bank it belong. Rs. 3,500/ were in the denomination of two 1000 rupees notes and three 500/ rupees notes.
The witness is shown Ex. P4 and again he reiterates that it is a Raxine and not the leather.
FIR No.34/07 State vs. Santosh 36/71
-: 37 :-
Court Observation: The purse is made of leather.
It is correct that Ex. P4 is an inexpensive purse which is even available on the
footpath".
56. PW 19 Retired Insp. Devender Singh deposed that on 10.04.2007, he was working as inspector at crime branch and on 13.04.2007, he prepared the scaled site plan Ex. PW 19/A. The relevant portion of the cross examination is as under:
" I did not discuss anything with the IO regarding the site and relevant mark either at the time of visiting the spot or at the time of preparation of site plan. I did not verify the correctness of the alleged information provided to me by Smt. Chandra Prabha. I also did not obtain the signature of Chandra Prabha on the rough notes or site plan."
57. PW 20 Dr. Sanjay Solanki deposed that he has been deputed by medical Superintendent of Sir Ganga Ram Hospital to depose on behalf of Dr. Sunil Kumar who has left the services of hospital. He stated that on 16.01.2007, at about 08.50 am, one patient Gurcharan Lal Oberoi was brought by one Raman Vats to the causality in a non responsive state, allegedly was found at home in the same state. The patient was declared "brought dead" and the dead body was handed over to the local police for necessary action. He proved the MLC Ex. PW 20/A which was prepared by Dr. Sunil Kumar as he has worked with him FIR No.34/07 State vs. Santosh 37/71 -: 38 :- during the course of his employment.
58.PW 21 HC Mahinder deposed that on 16.01.2007 ASI Pritam Raj deposited with him one pullanda and he made entry in register no. 9 and the copy of the same is Ex. 21/A. He further stated that on the same day, ASI Pritam Raj deposited to him eight pullandas, one suit case and one bag containing cloths etc. and copies of the same are Ex. PW 21/B1 to Ex. PW 21/B4. He handed over the exhibits to Insp. Surender Verma and copy of RC Ex. PW 21/C.
59. PW 22 Sanjay Kumar deposed that he is running a photo studio in the name of Sanjay studio and on 17.01.2007, he was called by the police for taking photographs and he took 18 photographs of the dead body which are already exhibited as Ex. PW 2/E1 to PW 2/E 18. He stated that the said negatives of these photographs are not traceable.
60.PW 23 ACP Surender Kumar Verma deposed that on 16.04.2007, he was posted as an Inspector Investigation at PS Patel Nagar and on that day, on receipt of 12A, ASI Bijender reached at Ganga Ram Hospital and informed telephonically that one Gurcharan Lal Oberoi "brought dead" was admitted by his daughter. He stated that ASI Bijender Singh handed over to him the MLC and he inspected the MLC as well as dead body of the deceased who was having injury mark on his neck and on the other parts of the body also. He further stated that he reached at FIR No.34/07 State vs. Santosh 38/71 -: 39 :- 6/10, Patel Nagar and met Smt. Chandra Prabha Oberoi who got recorded her statement Ex PW 1/A and she stated in her statement that she alongwith her husband and two servants i.e. one boy and one male servant were at home and her husband went upstairs to his bedroom. She received the phone of her daughter Pallavi who asked about the mobile phone of her father and she sent her servant upstairs who came back and she went up and found her husband covered in a quilt and having injury with heavy blood on his neck.
He stated that he made endorsement Ex. PW 8/C and handed over the rukka to Ct. Ajit Singh at 11.30 am. He deposed that crime team inspected the site and finger print expert lifted four chance prints from almira and gave report Ex. PW 9/A. He further deposed in the examination in chief that in the bedroom on the first floor he found one white color pillow smeared with blood. One dora baniyan belonging to the deceased smeared with blood, one white color printed ladies half pyjama smeared with blood belonging to the younger daughter of the deceased namely Ritika, one printed blue color bedsheet smeared with blood and one yellow and gray color linedaar mattress smeared with blood was found. Blood was found on the middle of the pillow where the neck of the deceased had rested. All these articles were seized. He stated that he moved an application Ex. PW 23/A for preserving the FIR No.34/07 State vs. Santosh 39/71 -: 40 :- dead body in the mortuary and on 17.01.2007, he moved another application Ex. PW 23/B for conducting the postmortem on the body of the deceased. He prepared the brief facts Ex. PW 23/C and filled a form 25.35 (1)(B) which is Ex. PW 23/D. Dead body was identified by Raman Vats and Sunil Oberoi and their statements were recorded vide Ex. PW 6/A and Ex.PW 23/E. He stated that he also enclosed the death certificate of Sh. Gurcharan Lal Oberoi, casualty card and DD No. 12 which are Ex. PW 23/F1, PW 23/F2, PW 23/F3. He further stated that he obtained the copy of postmortem, photographs of postmortem and doctor after postmortem handed over to him one pullanda, plastic bag and one gauze piece vide seizure memo Ex. PW 2./A. He stated that after handing over the dead body, he alongwith his staff proceeded to PS Punjabi Bagh and there they came to know that police officers have already proceeded for producing the accused persons before the court. He stated that after taking the permission, all the accused were arrested and their disclosure statements were recorded. On 18.01.2007, all the accused persons led them to the place of occurrence at the first floor. There was a verandah on the first floor and there was a tin sheded room and one sewing machine was there meant for tailors. He stated that the accused persons pointed out towards the sewing machine from where the accused Santosh S/o Kusheshwar FIR No.34/07 State vs. Santosh 40/71 -: 41 :- picked up a scissors by which he and his associates gave the blow on the neck of the deceased. He deposed that on the first floor, in the bed room of the deceased, accused Santosh S/o Kusheshwar told him that they had killed deceased Gurcharan Lal Oberoi by siting on his chest and giving the blow of scissor on his neck. Accused Bhola gagged the mouth of the deceased with the towel and accused Santosh S/o Jhemu caught hold the legs of the deceased. He stated that accused persons further disclosed that they had taken Rs. 43,500/ from the Almirah, Black color mobile and black Purse from the bed of the deceased and all the accused led them to the tin shed in the verendah and produced the said scissor from the cooler wherein tailoring waste was lying. He prepared the site plan of the place of recovery of scissor Ex. PW 23/H. He further deposed in the examination in chief that on 15.01.2008 ossification test of Santosh S/o Jhemu was conducted and on 06.02.2007 he went to PS Punjabi Bagh and collected all the documents pertaining to case FIR No. 47/07. This witness was cross examined by Ld. Counsels for accused and relevant portion of the cross examination is as under:
" I do not remember the name of the Daughter of the deceased who brought her father in injured condition in hospital. I did not record statement of daughter of the deceased in Ganga Ram Hospital.
FIR No.34/07 State vs. Santosh 41/71 -: 42 :- I had inspected the dead body before preparing the inquest papers. I had seen injuries on the neck, testicles, stomach and other parts of the body. Today, I cannot tell the number of injuries on those parts specifically. It is correct that at the spot, I had met two servant of the deceased. I had interrogated both of them but did not record their statements since it was not required. I had interrogated various neighbours of the deceased regarding the incident but no neighbour told us about the incident. I cannot tell the names and addresses of those neighbours today. I do not remember whether I had mentioned the same in the case diary. It is correct that I am duty bound to verify the contents of the complaint with another witness those are very much present at the relevant time. I had obtained the finger prints of the accused persons but I do not remember the date when I obtained their finger prints. I had obtained the signatures of the accused persons on the paper sheet on which I had obtained their finger prints. I do not remember as to how and through whom I sent the finger prints to finger print bureau.
It is correct that it is a duplex flat. It is correct that at the date and time of incident, the wife of deceased PW Chandra Prabha was present in the house. As per my investigation, on the day and time of incident, two servants were also present in the house. I do not remember whether I had recorded the statement u/s 161 Cr.PC of any of the two servants who were present in the house. After seeing the judicial file, witness states that there is no statement u/s 161 Cr. PC of those servants.
It is correct that I had prepared the document PW 1/C and after seeing the documents he stated that he cannot tell how many doors to be used for entry and exit FIR No.34/07 State vs. Santosh 42/71 -: 43 :- in the house. Ex. PW 1/C and Ex. PW 19/A do not show the door, wall or window from which anybody can enter in the house.
I had sent the ladies pyjama which was recovered from the bed of the deceased to the FSL. I do not remember the name of the constable through whome I had sent the ladies pyjama to the FSL. I had not made any efforts to take the finger prints of that tailor, wife of deceased and of the servants who were present in the house at the time of occurrence. It is correc that there is only one laboratory of Delhi Government to examine the finger prints. During my tenure as an Investigating Officer, I had not received the finger print report from the laboratory. I do not know whether the finger prints have been placed on the judicial record. I have sent a ladies pyjama to the laboratory but I do not remember whether any report of the laboratory has been received.
I had made request from the neighbours to join the investigation when I recorded the disclosure statement of the accused persons. I had not given any notice u/s 160 Cr. PC to those neighbours who refused to join the investigation. It is also correct that those persons have not been prosecuted u/s 187 IPC.
There is only one entry gate to the house in question. I had not seen any broken lock, broken door or chitkani of the entry door. I can say that there was no forcible entry through the door.
61.PW 24 Insp. Kapil Kishore deposed that on 22.03.2007, he produced weapon of offence i.e. Scissor before Dr. B. N. Mishra and obtained his opinion Ex. PW 24/A. On 16.04.2007, he moved an application Ex.PW 24/B for conducting the TIP of wrist watch and on 17.04.2007, witness Chandra Prabha correctly identified the wrist watch before Ld. MM. He FIR No.34/07 State vs. Santosh 43/71 -: 44 :- stated that during investigation, he collected receipt of bill payment of deceased Gurcharan Lal Oberoi Ex. PW 24/C and copy of DL is Ex. PW 24/D. This witness was cross examined and relevant portion of cross examination is as under:
" I do not remember the names of the two servants who had met me when I visited the house of the deceased. Again said the name of one servant may be Chotu. I had not recorded the statement of Ritika to the effect that the pyjama which was found on the bed of the deceased belongs to her and how it came on the bed of the deceased. I do not remember whether any finger print expert report of the chance print has been received. Several persons were gathered at the spot when I brought the accused persons to the spot. I had requested several persons to join the investigation but nobody has joined. I had not noted down their names and addresses and I had not given any notice to them. The cooler was lying opened from the back side but it has been filed with the waste cloths (cutting of cloths). I had not seen the blood stains on the cutting of the cloths. No finger prints were lifted from the scissors as there was no space on scissors for finger prints. I had not done any training or diploma in finger print."
62 Arrest and personal search of accused Santosh S/o Kusheshwar:
As per the case of the prosecution, Santosh S/o Kusheshwar was apprehended by the police officers of PS Punjabi Bagh in case FIR NO. 47/2007, U/S 25/54/59 Arms Act and his disclosure statement Ex. PW 13/A dated 16.01.2007 was recorded and his personal search was taken.
FIR No.34/07 State vs. Santosh 44/71 -: 45 :- He was apprehended at 08.00 pm on 16.01.2007 and was arrested in the said case. This is highly improbable story that after committing the alleged murder, accused Santosh S/o Kusheshwar was freely roaming with loaded katta, wearing blood stained cloths and in his disclosure statement he gave the house number, date and name of the person who was murdered alongwith amount robbed and other articles whereas the family of the deceased did not give any account of robbery in FIR and in the statement of Smt. Chandra Prabha Oberoi recorded on 16.01.2007 at 11.30 am. The IO apprehended this accused on the public place but did not join any independent witness for the search and seizure.
63 Arrest of coaccused Santosh S/o Jhemu and Bhola :
The above mentioned accused were arrested from their residence situated at Shakur Pur, Delhi by ASI Pritam Raj PS Punjabi Bagh. PW 18 ASI Pritam Raj during his examination dated 19.03.2010, deposed that the police team reached at Shakur Pur at around 06.30 07.00 am on 17.01.2007 but as per the document Ex. PW 23/G i.e. DD entry, recorded on 17.01.2007 at PS Patel Nagar, all the accused were arrested on 17.01.2007 at 05.00 am. If the arrest was made at 05.00 am in the morning, then the version of ASI Pritam Raj is false with respect to reaching by police officers at Shakoor Pur and arrest. More so, as per FIR No.34/07 State vs. Santosh 45/71 -: 46 :- register no. 19 of PS Punjabi Bagh, the case property allegedly recovered from the accused persons was deposited in Malkhana at PS Punjabi Bagh by ASI Pritam Raj on 16.01.2007 i.e. before arresting of accused persons. This fact was admitted by PW 21 HC Mahinder, MHC (M) of PS Punjabi Bagh that on 16.01.2007, ASI Pritam Raj had deposited 8 pullandas including one suitcase and one bag containing cloths etc. The arrest memo of Bhola and Santosh Ex. PW 11/B and Ex.
PW 11/C mentioned the time of arrest i.e. at 05.00 pm on 17.01.2007. Thus, the story made by the investigating agency regarding the time of arrest has been falsified by both the above mentioned documents. 64 Recovery of weapon of offence:
The weapon of offence i.e. Scissors was allegedly recovered from the house of deceased itself at the instance of accused Santosh S/o Kusheshwar in the presence of PW 7 Raman Vats but Raman Vats has failed to identify the accused Santosh S/o Kusheshwar as the person at whose instance the weapon of offence was recovered. Before 18.01.2004, Raman Vats had not seen any accused persons and for the first time he saw all the accused on 18.01.2004. Site plan Ex. PW 23/H Depicts the alleged place of recovery of scissors from the Cooler. The sketch of Scissors is Ex. PW 7/A which has been signed by Raman Vats and HC Raj Bahadur. The scissors alongwith other articles were sent to FIR No.34/07 State vs. Santosh 46/71 -: 47 :- FSL and the result is Ex. PX1 and PX 2. Scissors is exhibit 2 as mentioned in PX 1 and it is opined " Blood could not be detected on scissors exhibit 2". Thus, the recovery of scissors as a weapon of offence is doubtful and it seems that same is planted.
The investigating agency lifted the chance prints and had taken the finger prints of the accused but the same were not sent for comparison for the reasons best known to the investigating agency. 65 Identification of case property:
Cash amounting to Rs. 43,500/, one mobile phone, one Citizen Quartz Wrist Watch and the purse of the deceased were allegedly robbed from the residence of the complainant. When the case property i.e. Wrist Watch was shown to PW 1 Complainant Chandra Prabha during her examinationinchief, she identified the same to be robbed from her residence and the court has observed that the same was of make "HMT Quartz". Some of the witnesses are saying that it was a "Citizen Quartz" and some are saying it as "HMT Quartz".
So far as, TIP of the case property is concerned, same was conducted on 17.04.2007 Ex. PW 1/D. Ld. MM mentioned in the TIP Proceedings that Insp. Kapil Parashar produced 7 Wrist Watches of similar make and appearance for mixing purposes and the witness has identified the case property. Now, which case property was identified, what was its FIR No.34/07 State vs. Santosh 47/71 -: 48 :- make and appearance has not been mentioned in the proceedings. Ld. MM who recorded the proceedings has not been summoned to prove the same and it was exhibited in the statement of PW 1 Smt. Chandra Prabha.
PW 1 deposed that it was HMT Quartz of gold color but no color has been mentioned in the TIP proceedings. PW 4 Ritika Oberoi deposed that it was citizen Quartz of gold color. There is a material contradiction in the statement of PW 1 Chandra Prabha and PW 4 Ritika, daughter of the deceased with respect to the watch allegedly recovered from the possession of the accused.
So far as, the recovery of purse is Ex. P4 is concerned, PW 1 has simply stated that the purse of her husband is Ex. P4 and she failed to give the complete description of purse i.e. the material or the color etc of which it was manufactured, whether it was old or new or whether it was of Raxine or Leather.
It is a case of the prosecution that Rs. 43,500/ were also robbed from the house. The complaint Ex. PW 1/A i.e. the statement of Chandra Prabha nowhere mentions about any robbery. Her supplementary statement was recorded on 13.04.2007 i.e. three months after the incident and she stated that at the time of incident, the culprits robbed/looted the articles from the room of her husband i.e. Wrist FIR No.34/07 State vs. Santosh 48/71 -: 49 :- Watch, Mobile Phone, Purse and Cash amount. The figure of the cash amount is not mentioned nor the make of the wrist watch and mobile is mentioned. PW 1 Smt. Chandra Prabha deposed in the court on 12.05.2008 that after the incident she found Rs. 43,500/ missing from the Almira of her husband. The currency notes were taken out from three envelops which were exhibited as Ex. P6, Ex. P7 and P8 and the witness identified the same as robbed from her house. The currency notes were neither marked by the IO at the time of recovery nor their numbers were noted down and it is highly improbable that a witness can identify the currency notes without any mark of identification. This is also very strange that three persons robbed the money, distributed the same amongst and spent only 3,500/ in a day. The accused had sufficient time to spend or to conceal the money but no such attempt has been made.
PW 14 HC Sanjay deposed in examination in chief that after apprehending Santosh S/o Kusheshwar, his personal search was conducted and a sum of Rs. 16,000/ were recovered from his personal search. He further deposed that a Wrist Watch and Rs. 40,000/ and a Mobile Phone came to his share and in the search of Bhola sum of Rs. 14,000/ were recovered. Then, Santosh @ Nandu was also searched. As per the statement of PW 14, a sum of Rs. 13,500/ came to his share FIR No.34/07 State vs. Santosh 49/71 -: 50 :- out of which a sum of Rs. 3,500/ were kept in a robbed purse and a accused produced one black color Raxine purse which contain some documents and a sum of Rs. 3,500/ and Rs. 10,000/ were recovered from the front pocket of the accused. Now the total amount comes to Rs. 67500/. The figure recovered does not match with a alleged robbed amount. It is also pertinent to mention here that there was one torn currency note of Rs. 100/ and one was of Rs. 10/ denomination. The currency notes as stated by PW 14 were never produced inthe court. Rs. 43500/ is not a small amount and if such a huge amount was robbed, why the complainant remained silent for about three months. On the date when the alleged recovery was affected from the accused persons, the investigating agency was not in possession of any statement that such a huge amount was robbed, then how that amount was considered as robbed amount.
PW 1 Smt. Chandra Prabha deposed that her husband used to sleep on the first floor. PW 7 Raman Vats, the son in law of the deceased deposed that the room in which occurrence took place was at the first floor of the house which was being used for the study and accounts by the deceased and some times, he used to sleep there after late hours. The bedroom of the deceased was at the ground floor of the house, there he used to sleep alongwith his wife. Thus, the story made up by FIR No.34/07 State vs. Santosh 50/71 -: 51 :- the complainant and her family members is not convincing. The complainant has concealed this material fact that the deceased used to sleep on the ground floor. It is also not convincing that the money was kept on the first floor which was used as a study room. 66 Identification of accused Santosh S/o Kusheshwar: As per the statements of PW 1Smt. Chandra Prabha and PW 4 Ms. Ritika, the accused Santosh S/o Kusheshwar had worked at their residence as domestic servant prior to the incident. Initially when statement of PW 1 was recorded, she had no suspicion on anybody. The statement of PW 1 u/s 161 Cr.PC was recorded on 13.04.2007 i.e. after about 3 months from the alleged date of recovery. In that statement, she stated that Santosh S/o Kusheshwar had worked at their residence. Except this oral testimony, nothing has been placed on file by the prosecution to prove that Santosh S/o Kusheshwar had ever worked with Chandra Prabha 67 Forensic Evidence:
According to the FSL Report, no blood was detected on the alleged weapon of offence i.e. Scissors. Moreover, the finger prints which were lifted from the place of incident were not matched with the finger prints of accused persons as no such test report has been placed on file during the trial. The FSL gave its report Ex. PX 1 and the description of FIR No.34/07 State vs. Santosh 51/71 -: 52 :- articles contain in parcel are reproduced:
Parcel 1: One sealed cloth parcel sealed with the seal of SKV containing exhibits 1a, 1b, 1c, 1d,1e and 1f. Ex. 1a: One gadda Ex. 1b: One cloth piece Ex. 1c: One pillow with cover having dirty stains Ex. 1d: One baniyan having brown stains Ex. 1e: One pyjama having brown stains Ex. 1f : One bed sheet.
Parcel 2: One sealed cloth parcel sealed with the seal of DFMT DDU Hospital containing Ex. 2.
Ex. 2 : One scissors.
Parcel 3A: One sealed Polythene bag parcel sealed with the seal of DFMT DDU hospital containing exhibits 3A1, 3A2, 3A3 and 3A4. Ex. 3A1: One pyjama Ex. 3A2: One dirty baniyan Ex.3A3: One dirty Tshirt Ex. 3A4: One dirty underwear.
Parcel 3B: One sealed envelop sealed with the seal of DFMT DDU Hospital containing Ex. 3B.
Ex. 3B: Brown gauze cloth piece described as " blood gauze"
FIR No.34/07 State vs. Santosh 52/71 -: 53 :- Parcel 4: One sealed cloth parcel sealed with the seal of PRK containing exhibits 4a and 4b.
Ex. 4a : One dirty shirt.
Ex. 4b: one pant having brown stains. Parcel 5: one sealed cloth parcel sealed with the seal of PRK containing exhibits 5a and 5b.
Ex. 5a : One shirt having brown stains Ex. 5b: One pant's (jeans) Parcel 6: One sealed cloth parcel sealed with the seal of PRK containing exhibits 6a and 6b.
Ex. 6a: One pant's having brown stains. Ex. 6b: One shirt having darker stains The result obtained, analyzed by FSL Ex. PX2 is as under: Exhibits Species of Origin ABO Group/Remarks '1c' Pillow with cover Human 'A' Group '1d' Banian Human 'A' Group '1e' Pyjama Human 'A' Group '3A2' Banian Human No reaction '3A3' T-shirt Human 'A' Group '3A4' Underwear Human No reaction '3B' Blood stained gauze Human 'A' Group cloth piece '4a' Shirt Human No reaction FIR No.34/07 State vs. Santosh 53/71 -: 54 :- '4b' Pant's Human 'A' Group '5a' Shirt Human 'A' Group '6a' Pant's Human 'A' Group '6b' Shirt Human 'A' Group On almost all the articles, the human blood of 'A' Group was detected. The prosecution has failed to prove that deceased had 'A' Blood Group.
68 Phone calls:
As per the case of the prosecution, the accused persons after committing the murder during the intervening night of 15/16.01.2007 robbed some cash, one wrist watch, one purse and one mobile phone from the residence of the deceased. The mobile phone robbed by the accused persons was charged and switched on before the court in the crossexamination of PW 14 HC Sanjay on 26.03.2010 and the relevant portion is as under:
"The LG Mobile has been charged in the court and on the switching on the same, on the screen saver, there is joint photograph of a man and woman and also on the screen saver is written "G. Oberoi"
Court Observation: The photograph of a man when compared with the photograph of the deceased on the court file is of him. A perusal of a miss call shows that last number as 9810096666 on 16.01.2007 at 09.57 am. The last number from which call has been received is 01142251811 FIR No.34/07 State vs. Santosh 54/71 -: 55 :- Uon 16.01.2007 at 09.00 talk time 1 minute and 11 seconds. The last dialed number is 9910789175 on 16.01.2007 at 08.14 am, talk time 04 seconds. The second last dialed number is to one Ritika Oberoi at 06.34 am on 16.01.2007 and talk time is 2 minutes and 10 seconds." The incident is of 15/16.01.2007. If the accused persons had robbed the mobile phone in question, then it is difficult to accept in ordinary course that first any person would rob any phone and he would make call from that mobile phone to the family members of the deceased from where they have looted the money. The second last dialed number is of Ritika Oberoi at 06.34 am on 16.01.2007 and talk time is 02 minutes and 10 seconds.
The police officers have not even bothered to obtain the identity of users of phone numbers on which the conversation has taken place in the morning of 16.01.2007 i.e. after the murder. It is important to mention here that a phone call was made to Ritika Oberoi at 06.34 am on 16.01.2007 and conversation took place between the caller and Ritika Oberoi, receiver of the call but neither Ritika Oberoi who is the daughter of the deceased deposed during the whole trial that she had received phone call from the mobile phone of her father on 16.01.2007 after the murder nor the police officials had bothered to obtain the phone call records and the location of the said mobile on 16.01.2007 FIR No.34/07 State vs. Santosh 55/71 -: 56 :- which could be helpful to ascertain the actual crime and the actual criminals.
From the above stated facts it is clear that mobile phone was planted upon the accused.
69. Presence of PW 4 Ritika Oberoi at the place of incident:
As per the case of the prosecution and as per the statement of PW 4 Ritika Oberoi and PW 1 the complainant, Ritika Oberoi was not present at her house in the intervening night of 15/16.01.2007 and she had gone to the house of PW 7 Raman Vats who is the husband of her sister. During the cross examination of PW 7 Raman Vats, he deposed that he and his wife left house within two three minutes after receiving the information and except his mother and grand mother, none else was present in their house. When they reached at the place of incident within 30 minutes, they found that the deceased was taken out from the main gate by PW 4 Ritika Oberoi. The said statement of PW 7 Raman Vats clearly shows that PW 4 Ritika Oberoi was present at her house in the intervening night of 15/16.01.2007 and she was not present at the house of Raman Vats.
Now, this is a suspicious circumstance as to why complainant Chandra Prabha PW 1 and Ritika PW 4 took the plea of "alibi" that she was not present at the house of alleged incident whereas the circumstances and FIR No.34/07 State vs. Santosh 56/71 -: 57 :- the phone of the deceased indicate that Ritika was aware about the death of her father and she attended the phone call from number which was of deceased and had a talk for 2 minutes and 10 seconds at 06.34 am on 16.01.2007. Why this fact was concealed from the court and why the IO did not take steps to investigate who called Ritika and what was the location of Ritika's phone and the location of the phone of the deceased at the relevant time. It also shows that the investigating agency did not investigate the case in a serious and proper manner. It is also pertinent to mention here that pyjama of Ritika with blood stains was handed over to the IO which was sent to FSL and same contained human blood of 'A' Group. It is not explained how the pyjama of Ritika was containing blood stains of 'A' group human blood. The investigating agency is silent about the material evidence and this fact indicates some foul play within the members of the deceased.
70. Postmortem Report:
Postmortem of the deceased was conducted on 17.01.2007 and the autopsy surgeon has opined that the time of death as about half an hour after taking food (dinner) on the night of 15.01.2007. In the complaint, the complainant had stated that her husband reached at home at about 07.00 PM and after taking food he had slept in his bedroom situated at FIR No.34/07 State vs. Santosh 57/71 -: 58 :- first floor. If a complaint and opinion of autopsy surgeon are believed to be true, then the time of alleged offence would have been approximately 08.00 to 08.30 PM. In the routine course in Metropolitan cities like Delhi, at the said time movement of traffic and passer by should be huge and if the robbers have tress passed the house by means of force or by means of scaling the outer wall of the building of the house/Balcony, then someone must have seen the enterence while entering the house but nothing like this has been mentioned in the prosecution story or in the version of any witness.
The death report prepared by IO Ex. PW 23/B depicts that the face of the deceased was blue and there was injury on the neck. As per document Ex. PW 23/F, the casualty card of Sir Ganga Ram Hospital where Dr. Sunil Kumar observed after examining the body of the deceased that there was bluishness of the face till neck and as per the document Ex. PW 2/A, the autopsy surgeon in general description of the body of the deceased described that the nails of the dead body were bluish. On perusal of both these exhibits, the possibility of presence of some poisoness substance in the body of the deceased cannot be ruled out. Moreover, the autopsy surgeon has not even bothered to preserve the viscera of the deceased despite the fact that PW 23 through the document ex. PW 23/B had requested for the same but the said FIR No.34/07 State vs. Santosh 58/71 -: 59 :- document does not bear the receipt stamp of the doctor.
71. Presence of other witnesses in the house:
As per the case of the prosecution, two domestic servants were residing on the second floor of the house but surprisingly both the servants have not been named as witness by prosecution despite the fact that they got down from ladder and came at ground floor in the morning but strangely did not notice anything in scattered/disturbed manner which could show the forceful enterence of the robbers in the room of the deceased. It is pertinent to mention here that the deceased went to the bed in the early hours at 08.00 pm and when he did not come out of his room and did not reach at ground floor in the morning, nobody bothered to confirm that whether he is fine or not. The complainant was running a boutique in the house and employed two tailors who were working there but neither the complainant had given any details of those persons nor the IO bothered to join them in the investigation. Moreover, the "JethJethani" and "DevarDevrani" of the complainant came at the spot after the incident but none of them has been cited as a witness. Pallavi who is the sister of PW 4 Ritika Oberoi has also not been cited as a witness who could throw some light regarding the presence of the witnesses at the relevant time.
72. Motive of offence:
FIR No.34/07 State vs. Santosh 59/71 -: 60 :- The motive of the accused persons in the present case was robbery but it is also suspicious as no valuable items were being robbed from the house in question. The fact regarding lying of valuable items such as cash and jewellery was admitted by PW 1 Smt. Chandra Prabha in her cross examination conducted on 02.09.2008 wherein she has admitted that there were valuables lying in the other rooms as well as in her bedroom which were not even touched by the enterence. More so, as per the case, Santosh S/o Kusheshwar was employed as a domestic servant in the house of the complainant, then he must knew about the location of the valuables, cash and jewellery etc. in the house.
73. Intimation to the police: Admittedly the murder was committed at early hours of night dated 15.01.2007 and the family members of the deceased came to know of it in the morning at around 06.00 am but none of the family member tried to inform the police. The dead body was removed by the family members and police received information vide DD NO. 12A dated 16.01.2007 at 09.00 am when the police officials deputed at DDU hospital informed about the incident.
74. Contradictions of PWs As per PW 4 Ritika Oberoi, she stated in her examination in chief that on 15.01.2007, she had gone to the matrimonial house of her sister FIR No.34/07 State vs. Santosh 60/71 -: 61 :- Pallavi Vats at C40, Shivalik, first floor Delhi and on the next day i.e. on 16.01.2007 she was informed that her father had been murdered by someone and thereafter she came to her house and when she reached alongwith her sister and her husband Raman Vats, she came to know that her father had already removed to Ganga Ram Hospital. As per the statement of PW 7 Raman vats, Ritika Oberoi was not with them and when he reached at her matrimonial house, his father in law was been taken out from the main gate by his younger sister in law Ritika Oberoi. As per the case of the prosecution, Ms. Ritika Oberoi had reached at her home alongwith PW 7 Raman Vats and after reaching the house PW 7 removed the body of deceased to Sir Ganga Ram Hospital. PW 4 Ritika Oberoi stated that at the time of incident, the grill fixed on the First floor was not properly closed and entry could be made to the said grill but as per the case of the prosecution, the accused persons after climbing the wall near the main gate had entered in the house and committed the offence. PW 4 stated that the said grill was broken six months prior to the incident when the house was under construction and this fact was also known to the labourers who were coming for the construction work but the said statement was not given by PW 4 to the police during investigation. From the above, it is clear that Ms. Ritika Oberoi had improved her statement and the actual facts have been FIR No.34/07 State vs. Santosh 61/71 -: 62 :- concealed by her at the time of investigation.
PW 7 Raman Vats has stated in his cross examination conducted on 17.04.2009 that police informed them that they had arrested all the three accused persons by the afternoon of 16.01.2007 but as per the case of the prosecution accused Santosh S/o Kusheshwar was arrested on 16.01.2007 at 10.45 pm and the other accused were arrested on 17.01.2007. The said version of PW 7 clearly shows that the accused persons were lifted by the police in the afternoon of 16.01.2007 and later on implicated in the present case.
As per PW 7 Raman Vats, two tailors were engaged by his mother in law i.e. PW 1 for her boutique work running from the place of incident but the prosecution has nowhere mentioned that those two persons ever joined the investigation and the possibility of involvement of those two persons in the alleged offence cannot be ruled out where the incident took place and they would have been well aware about each and everything of the house like movements of the family members, location of valuables in the house and more importantly the places from where enterence could be made easily in the house. PW 11 ASI Raj Bahadur in his cross examination has deposed that the arrest memo and disclosure statement of accused Santosh S/o Kusheshwar were prepared on 17.01.2007 at PP Madipur of PS Punjabi FIR No.34/07 State vs. Santosh 62/71 -: 63 :- Bagh and during the preparation of these documents, PW 7 HC Sagar Chand and Insp. S. K. Verma were also present at Police post. This clearly shows that all the writing work was completed by the police officials while siting in the PP Madipur and it was just a formality to produce the accused Santosh S/o Kusheshwar in the court for taking the permission to interrogate the accused.
PW 13 HC Dushyant deposed that he alongwith other police officials i.e. PW 14 HC Sanjay and PW 18 ASI Pritam Raj reached at Shakur Pur for arresting the accused persons i.e. Bhola and Santosh S/o Jhemu on 17.01.2007 at 05.00 am whereas as per the statements of PW 14 HC Sanjay and PW 18 SI Pritam Raj, they had reached at Shakoor Pur on 17.01.2007 at about 06.30 am/07.00 am but according to the arrest memo of both the accused persons they had already been arrested on 17.01.2007 at 05.00 am. Hence the version of all three PWs are contradictory to each other.
Admittedly, public witnesses were present at the spot from where the accused was apprehended and recovery was effected. However, no action was taken against the public persons who had refused to participate in the investigation. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
FIR No.34/07 State vs. Santosh 63/71 -: 64 :- In case of PREM SINGH VS. STATE 1996 CRI. L. 3604 (DELHI) and in case of PAWAN KUMAR VS. DLEHI ADMN. 1989 CRLJ 0127 DEL, it has been observed as under: "Kalam Singh has to admit that at the time of arrest and recovery of knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalan Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7:30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of serious nature like the FIR No.34/07 State vs. Santosh 64/71 -: 65 :- present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused". In the case of "Hem Raj Vs State of Haryana" AIR 2005 SC 2010, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not given rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume FIR No.34/07 State vs. Santosh 65/71 -: 66 :- significance."
In the case of "D.V.Shanmugham Vs State of A.P" AIR 1997 SC 26583", it has been observed as under: "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation, the prosecution case has to be scrutinized with more care and caution".
In the case of "Massa Singh Vs State of Punjab" 2000 (2) CC Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under: "The recovery has been effected from a public place. The investigating officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by FIR No.34/07 State vs. Santosh 66/71 -: 67 :- the Court below."
In the case of "Chanan Singh Vs State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought. In the cases of "Gurbel Singh Vs State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt. In the case of "Sahib Singh Vs State of Punjab" AIR 1997 SC 2417, it has been held as under: "Having gone through the record, we find much substance in each of the above contentions. Before conducting a search, the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities, the evidence of the police officers who conducted the FIR No.34/07 State vs. Santosh 67/71 -: 68 :- search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, if would affect the weight of evidence of the Police Officer, though not its admissibility."
Also in this case, no efforts were made to hand over the seal after use to independent public persons and in such cases in view of ratio of judgment SAIFULLA VS. STATE 1998 (1) CCC 497 (DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
The case in hand is based on circumstantial evidence has nobody has witnessed the occurrence. It is held by Hon'ble Supreme Court in case titled as Vijay Kumar Vs. State of Rajasthan (2014) 3 Supreme Court Cases that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion is drawn should be fully proved and 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 FIR No.34/07 State vs. Santosh 68/71 -: 69 :- and the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. It is further held that even assuming it to be true that recovery of certain incriminating articles was made at the instance of accused, that by itself is not sufficient to form basis of conviction. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. Reference can be made to Mani Vs. State of Tamil Nadu JT (2008)1 Supreme Court
191. The Hon'ble Supreme Court in various cases has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfied 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 FIR No.34/07 State vs. Santosh 69/71 -: 70 :- else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explaination of any other hypothesis than that of the 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. Reference can be made to Padala Veera Reddy Vs. Stateof Andhra Pradesh and Others 1989 Supp. (2) Supreme Court Cases 706 and Shanta Bai and Others Vs. State of Maharashtra JT 2008 (3) Supreme Court 130.
1. Keeping in view the facts and circumstances and evidence on record, the court is of the consideration opined the prosecution has miserably failed to bring home the guilt of the accused persons beyond reasonable doubt. It is not out of place to mention here that investigation conducted in this case is faulty and some very important points were left to be investigated and IO was negligent in collecting the relevant evidence connecting the accused with crime. Therefore, in view of the above discussion, the court is satisfied that the prosecution has failed to prove the case against all the accused for the offence under Section 302/394/397/411/34 IPC.
FIR No.34/07 State vs. Santosh 70/71 -: 71 :- All the accused namely Santosh S/o Kusheshwar, Santosh S/o Jhemu and Bhola hereby acquitted of the charge for the offence under section 302/394/397/411/34 IPC.
Announced in the open court today i.e. 29th day of September, 2014.
(Rakesh KumarII) Additional Sessions Judge03, West District, Delhi.
FIR No.34/07 State vs. Santosh 71/71