Delhi District Court
State vs . : Sarthak Kapoor on 18 August, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 749/17
FIR No. : 349/17
U/s : 302/363/364 IPC
P.S. : KNK Marg
State Vs. : Sarthak Kapoor
S/o Ravi Kapoor
R/o D-2/41-42, Sector-11,
Rohini, Delhi.
Offence complained of : 302/363/364 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 13.12.2017
Date of Judgment : 18.08.2018
JUDGMENT
1. It is the case of jilted lover who wanted deceased back at any cost. He applied all the tactics, extended threats but when he did not succeed in getting her back eliminated her. On 16.08.2017 Shreya Sharma left home for attending tution but did not return home. The parents searched for her but she could not be traced. However, they came to know that at about 5:00 pm she was seen with the accused. They made a complaint to the police. Accused was called in the police station along with the partents. Accused confessed about causing her death and got recovered the dead body of Shreya Sharma and also her belongings. After completion of investigation the charge sheet against accused was filed before Ld. State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :1:
MM. Ld. MM after complying with the provisions of section 208 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court. Accused was charged for the offences punishable u/s 302 IPC to which he pleaded not guilty and claimed trial. Thereafter, case was fixed for prosecution evidence.
2. Sh. Yogesh Kumar was examined as PW-1. He deposed that on 16.08.2017 at about 5:00 pm his daughter Shreya Sharma had gone to tution centre A-Block Sector-17 Rohini. She used to take Tution from 5:30 pm to 8:00 pm. When his daughter did not return home till 8:10 pm his wife made a call from her mobile phone number on the mobile phone number of her daughter i.e. 8826523695. The bell was ringing but phone was not picked up. Lalita again made a call on the mobile phone number of her daughter at 8:15 pm but now the mobile phone was found switched off. Thereafter, his wife made a call to teacher Rupesh who used to give Tution to his daughter. Rupesh informed that Shreya Sharma had not attended the tution today. His wife informed him that Shreya Sharma had not returned home and has also not attended the tution of teacher Rupesh. His wife started searching for Shreya Sharma. His wife made a call to Pinky and informed that Shreya Sharma is missing and has not attended the class. Pinky informed his wife that she had seen Shreya Sharma with Sarthak Kapoor at A-block gate No.7, Sector-17 Rohini at about 5:00 pm. He was also making calls on the mobile phone of his daughter but the same was found switched off. He made a call on State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :2:
the mobile phone of father of accused Sarthak Kapoor but the same could not be connected. Thereafter, he made a call on the mobile phone of mother of Sarthak Kapoor who informed him that Sarthak Kapoor is also not at home since 5:00 pm and that his father is also searching for him. He informed the mother of accused that his daughter is also missing. He requested mother of accused that if Sarthak Kapoor is found anywhere he be immediately informed. He again made a call on the mobile phone of mother of Sarthak Kapoor who told that Sarthak Kapoor is reaching home within 5 minutes. When no call was received he again made a call to the mother of Sarthak Kapoor. It was picked up by Sarthak Kapoor who told that he met Shreya Sharma at 5 pm and thereafter he went to GYM. His wife went to the tution centre where she used to take tution but she was not there. He reached outside the school of his daughter that is Titiksha Public School. His wife also reached there whom he had already informed to reach at the school. They searched their daughter around the school and also made inquiries from nearby residents but she was not found anywhere. They made phone calls to the family friends and other relatives but she was not found anywhere. They reached home and then made a call at 100 number.
3. Officials of PS :KNK Marg reached their home. He made statement to the police and told all these facts. He also informed the police that his daughter was wearing Khakhi colour shirt, black colour long skirt, white colour chappal and also gave the detail about her build and description. He also informed that they came to know that State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :3:
in the month of April 2017 his daughter used to meet Sarthak Kapoor and that she had friendship with Sarthak Kapoor. Police recorded his statement Ex.PW1/A.
4. His daughter was studying in 12th class in science stream. In the month of April 2017 his daughter joined 12th class and Sarthak passed out from the school. His daughter informed them that Sarthak Kapoor has caused injuries to her outside the chemistry lab inside Titiksha Public School. He made a call on the mobile phone of Smt. Kavita teacher of Titiksha Public School and informed that Sarthak Kapoor caused injuries to her. Kavita requested him and his wife to reach school on next day in the morning. They reached the school where Smt. Kavita told them that his daughter and accused were friend and that accused caused injuries to his daughter outside the tution centre and not outside the chemistry lab in Titiksha Public School. Smt. Kavita also informed that they would call the accused and his parents in the school and discuss the matter with them. Thereafter, they left the school on the assurance that they would sort out the matter. On the same day he received call of Smt. Kavita who informed that she had called the parents of the accused in the school and that accused has been scolded. The parents and accused assured Smt. Kavita that accused would not cause any trouble or harass his daughter in future. After few days in the month of May 2017 his daughter informed them that accused is following her and harassing her. He and his wife again made a call on the mobile phone of Smt. Kavita and informed her about the fact that accused is State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :4:
still harassing and following her. Smt. Kavita told them that matter does not pertain to school and told him that he is at liberty to take any legal action against accused. Smt. Kavita also provided him the mobile phone numbers of the parents of accused. He made a call to the father of accused and discussed the behaviour of accused towards his daughter. They also met the parents of accused outside the school. He warned the accused that if he ever harassed or followed his daughter in future he would take legal action against him and also conveyed this fact to the parents of accused.
5. Police officials of KNK Marg called the accused in the police station. Accused along with his parents reached PS: KNK Marg. He along with wife identified the accused in the police station. Police made inquiries from the accused. He along with his wife left the police station in search of his missing daughter. In the morning hours police informed them that one dead body is found at A-7/174- 175 Sector-17 Rohini Delhi and asked them to reach there. He along with his wife reached there and saw the dead body of his daughter lying in the back lane of A-7/174-175, Sector-17 Rohini, Delhi. He identified dead body of his daughter. His wife was also with him at that time. Accused Sarthak Kapoor was also there in the custody of the police. Police informed them that the dead body was got recovered by accused. Some other police officials also reached there. Some proceedings were conducted. He believed that Sarthak Kapoor had killed his daughter.
6. The dead body of his daughter was shifted to BSA State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :5:
hospital. Witness has correctly identified the accused. He saw the bag and chappal of his daughter near the dead body. He identified the dead body vide statement Ex.PW1/B. He received the dead body after post mortem vide memo Ex.PW1/C.
7. On 20.08.2017 he went to police station and handed over the original bill vide which he purchased mobile phone Gionee L-8 00 which was in possession of his daughter when she left for tution on 16.08.2017. The said bill was seized by the police vide seizure memo Ex.PW1/D. The original bill is Ex.PW1/E. The witness identified the poem written by her daughter running into four pages and that it is in the handwriting of his daughter. The pages are Ex.PW1/F1 to F4. The poem shows the plight and her emotions suffered by her during the said period from the accused.
8. During the cross examination by the defence counsel he deposed that he is working in Delhi State Co-operative Bank Ltd. situated at Darya Ganj, Delhi as an Asstt. Manager. He was confronted with his statement where this fact was not found mentioned that his wife made a call from her mobile phone number on the mobile phone number of her daughter and the bell on the mobile phone was ringing but the same was not picked or that his wife again made a call at the mobile phone of his daughter at about 8:15 pm but the same was found switched off. He does not remember if he told the police that his wife along with other relatives was searching for his daughter or that on the way he was talking to his wife and also making call on the mobile phone of his daughter. It State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :6:
was not found mentioned in his statement that he made a call on the mobile phone of father of accused which could not be connected and then he called on the mobile phone of mother of accused who informed that accused is also not at home and that his father is searching for him. However, it is mentioned in his statement that Yesterday when they made call to the parents of accused and inquired about Sarthak they informed that Sarthak is at home.
9. He was confronted with his statement where it was not found mentioned that Smt. Kavita informed them that she would call the accused and his parents in the school and discussed the matter with them and that they left the school with the assurance of the teacher that she would sort out the matter. It was also not found mentioned in his statement that in the month of May 2017 his daughter informed them that accused has been following and harassing her and they again made a call to Smt. Kavita and informed the said facts that accused is still harassing and following their daughter and Smt. Kavita told them that matter does not pertain to school and asked them to take any legal action. He was also confronted with his statement where it was not found mentioned that he made a call to the father of accused and informed about the behaviour of accused about harassing his daughter or that they met the parents of the accused outside the school. He did not tell the police that he along with his wife, his daughter and Smt. Pinky went to meet the parents of accused and accused with his parents met them near the school.
State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :7:
10. He does not remember the time when his wife firstly informed him that Shreya Sharma is missing. He cannot tell how many calls were made on the mobile phone of his daughter by his wife and how many calls he made. On the day of incident his wife was at home as she was on leave. On 16.08.2017 he received the call of his wife while driving the car. So far he remember his wife along with nephew Deepak, wife of Deepak namely Chinu were searching for his daughter. But when he reached Rohini only Deepak was with his wife and they met him near Titiksha Public School. His wife informed him that she had already searched Shreya Sharma near her house and also tution centre. There is a walking distance of 4-5 minutes between his house and the tution centre. He does not remember the exact time of reaching near the school of his daughter but it was in the night. He remained near the school for about 15-20 minutes. He inquired from 4-5 persons but he does not know names of those persons. He along with wife and relatives also went to sector-17 Rohini and searched for Shreya Sharma. They reached home at about 11:45 or 12:00 midnight. He made a call at 100 number from his mobile phone at about 12:00 or 12:30 am. He does not remember if he named Sarthak Kapoor while making call at 100 number. He cannot tell the mobile phone numbers of the parents of Sarthak Kapoor but the same are saved in the contact list of his mobile phone. He and his wife did not visit the house of accused prior to the incident. During the year 2016-17 before this incident he was not aware of residential address of accused. He cannot tell the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :8:
exact time when police reached his house after he made call at 100 number. SI Satender Dahiya recorded his first statement. Neither he nor his wife went to the house of Sarthak Kapoor after the recording of his statement. He has no knowledge if police had visited the house of Sarthak Kapoor.
11. At about 4:45 am police called him and asked him to reach at A-7/174-175, Sector-17, Rohini. It takes 10 minutes to reach A- 7/174-175 from his house. He reached at the spot at 4:45 or 5:00 am after receiving the call of the police. Many police officials and Sarthak Kapoor were there. There was an iron gate but there was way to reach the place where dead body was found. The small gate was lying open when he reached. SI Satender Dahiya and other police officials were there. He remained there for about 2 or 2 ¼ hours. The sun has not risen when he reached the spot. No neighbour or local resident came on the spot. Police did not call any resident of the nearby house. The bag and chappal belonging to his daughter were lying near the body. He did not check the articles in the bag of his daughter in the presence of police. Police also did not check the bag in his presence. Till he remained on the spot no public person was moving on the road. The body was lying at a distance of about 5-6 feet if one enters from the side of A-7/174-175. There are two gates of the lane, one installed near A-7/163 and the other near A-7/174-
175. The small gate which was lying open was towards A-7/174-175. He does not know if the crime team came but the photographs were taken. SI Satender prepared the memo with respect to the bag, State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 :9:
chappal and the dead body. He did not sign any document. Police was also making inquiry from Sarthak Kapoor in his presence. Police prepared a hand written document after making inquiry from Sarthak Kapoor and also obtained signature of Sarthak Kapoor. He admitted that neither he nor his wife made any written complaint to the police or to the school before 16.08.2017. He does not know the exact time of shifting the body from the spot. Police obtained the signature of his wife on the memos regarding seizure of bag, chappal and the body. He reached BSA hospital at about 8:00 am from the spot directly. On 17.08.2017 police called him in the police station. He visited the police station many times after 17.08.2017 and particularly on 20.08.2017. He did not sign any document with respect to the case after 20.08.2017.
12. Ct. Naveen was examined as PW-2. He deposed that on 11.09.2017 on the call of Inspector Anil Sharma he reached PS: KNK Marg. From there he along with SI Satender and Inspector Anil Sharma reached back street near H.No. A-7/174, sector-17 Rohini.
He prepared rough notes and took measurments at the instance of SI Satender. Thereafter, he returned to his house office.
13. On 14.09.2017 he prepared the scaled site plan Ex.PW2/A. After preparing the scaled site plan he destroyed the rough notes and measurements.
14. During cross examination he stated that they reached the spot at 10:00 am. There is a gate at the entrance of back side gali on the side of H.No.A-7/174, Sector-17 Rohini. The gate remains locked. State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 10 :
There was one more gate installed towards the entrance situated on the back side of H.No.A-7/163 sector-17 Rohini. He denied the suggestion that he did not visit the place in the manner as deposed by him.
15. Ms. Promil Bali, Manager Titiksha Public School was examined as PW-3. She deposed that on 17.08.2017 she issued certificate Ex.PW3/A having her signature at point A to the efffect that Sarthak Kapoor was a student of their school and passed class XII th from their school. She identified Sarthak Kapoor. The date of birth of Sarthak Kapoor is 08.01.1999 as per school record.
16. During cross examination she deposed that the certificate was issued on the basis of the record available in the school on written request received from police department. Photocopy of which is Ex.PW3/D.
17. Rupesh was examined as PW-4. He is running coaching centre under the name and style of Sweet Hope coaching centre at sector 17 Rohini. Shreya Sharma was one of his student. She was studying in 12th standard and used to come to take tution on Monday, Wednesday and Friday. Her class timing was 5:30 to 8:00 pm. But classes some time used to run over when students have some doubts. She was taking coaching of Maths and Physics. She started coaching classes when she was student of XI class. On 16.08.2017 Shreya Sharma did not attend her coaching class. Around 8:15 pm he received call from the mother of Shreya and she asked if Shreya Sharma had not reached home. He told the mother State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 11 :
of Shreya Sharma that she had not attended her coaching class and was absent. His mobile number is 9911229977.
18. Next day in the morning he called on the mobile phone of mother of Shreya Sharma and she told that she had died and she also told that uske school ke kisi bachey Sarthak Kapoor ne uska murder kar diya hai".
19. During cross examination by the defence he deposed that in August' 2017, 75 students were taking coaching at his centre in different groups. In the group in which Shreya Sharma was attending the coaching there were 12 students, 3 girls and 9 boys. Police contacted him on 12.09.2017 in this case and recorded his statement on laptop. He did not tell the police in his statement that class timing is 5:30 to 8:30 pm. He told the police that class time was 5:30 pm to 8:00 pm and if the students have some doubt then the class timings extend to 15, 20 or 30 minutes. However, in the statement Ex.PW4/D the timing is given 5:30 to 8:30 pm. He admitted that none from the family of Shreya Sharma met him after the mother of Shreya Sharma made call to him at about 8:15 pm till morning of 17.08.2017. But he again stated that after receiving the call at 8:15 pm mother of Shreya Sharma along with some relative came to meet him.
20. Dr. Jai Parkash, Principal Sachdeva Public School Sector- 13 Rohini was examined as PW-5. On 17.08.2017 she gave letter regarding date of birth of Sarthak Kapoor that is 08.01.1999 S/o Sh.
Ravi Kapoor R/o D-2/41-42 Sector-11, Rohini. Sarthak Kapoor was admitted to their school in first class on 01.04.2005 and left the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 12 :
school after passing the fourth class on 19.03.2009. She gave letter Ex.PW5/A having her signature at point A on the basis of School record. The photocopy of the admission form is Ex.PW5/B, the photocopy of birth certificate is Ex.PW5/C. The photocopy of the transfer certificate is Ex.PW5/D. The photocopy of the admission register having details of admission is Ex.PW5/E. Nothing material came to discredit the witness during her cross examination.
21. Smt. Lalita was examined as PW-6. She deposed that on 16.08.2017 her daughter Shreya Sharma had gone to take tution from Rupesh Sir at Sector-17 Block A Rohini. She left home at 5:00 pm. Shreya Sharma was carrying the mobile phone of her grandmother No.8826523695. Her daughter used to return home usually upto 8:00 pm. When Shreya Sharma did not return home upto 8:00 pm she made call on the mobile phone carried by her. The phone rang 2-3 times. At 8:15 pm the mobile phone was found switched off. Thereafter, she made a call to Rupesh Sir and inquired Shreya Sharma kya aaj late aa rehi hai, ya tution khatam nahi hui", Rupesh sir said Shreya Sharma aaj tution nahi ayee.
22. On that day her daughter was wearing Khaki colour shirt, black colour long skirt, white chappal and was carrying black colour school bag. When she did not get information of Shreya Sharma for long time she made a call to one Pinky known to her. She told her that Shreya Sharma had not returned home from tution. Pinky told her that in the evening at about 5:00 pm she had seen Shreya Sharma with Sarthak in front of Gate No.7 block A sector-17 near State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 13 :
Tution centre. She was already knowing about accused Sarthak Kapoor who was one class senior to her daughter in the school, Titiksha Public School. Sarthak Kapoor Shreya Sharma ko kafi samay se pareshan kar reha tha. She, her husband, Pinky and her daughter also met the parents of Sarthak Kapoor and made them understand not to tease her daughter as earlier also Sarthak Kapoor had caused injury to her daughter outside the tution centre in the month of April - May 2017. Her husband made a call on the mobile phone of mother of Sarthak Kapoor and inquired about Sarthak. Mother told that Sarthak is not at home. She along with her relatives reached outside Titiksha Public School and searched for Shreya Sharma in the surrounding area and also made inquiries from the known persons. But they did not get any information. Her husband met them outside the school. When they did not get any information her husband made a call at 100 number after reaching home. Police reached their home. The call was made at about 12:00 midnight or 12:30 am within 15-20 minutes police arrived. They told the police all the facts and also about Sarthak Kapoor that he was seen with Shreya Sharma at about 5:00 pm. Statement of her husband was recorded. Thereafter, police left their house. They continued to search for Shreya Sharma and also visited police station while searching for Shreya to inquire if they got any clue. Police told them that they had called Sarthak along with his parents. Police was making inquiries from Sarthak. Thereafter, they left the police station to search for Shreya Sharma.
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23. At around 4:30 am her husband received a call from police and asked him to reach near H.No.A-7/174-175, Sector-17, Rohini.
She along with her husband reached there. Many police officials were present there. Police told her that dead body of her daughter is lying behind A-7/.174-175 Sector-17, Rohini. Sarthak Kapoor was also with police at that time. On the asking of police Sarthak Kapoor pointed out the dead body. She identified the dead body as of her daughter Shreya. At some distance from the body school bag and chappal of her daughter were lying. Photographs of that place were taken. It was dark at that place. Police started the proceedings. The body was put in a cover, some documents were prepared. The pair of chappal of her daughter were lifted, put in a polythene, wrapped in a cloth, bag of her daughter was also lifted. There were some books in the bag. She confirmed that it belongs to her daughter. The books were again put in the same bag. The bag was wrapped in a white cloth, sealed. The pointing out and recovery of dead body is Ex.PW6/A. The seizure memo of pair of chappal is Ex.PW6/B. The seizure memo of bag and books is Ex.PW6/C. The dead body was sent for post mortem. After the post mortem they received the body.
24. In the month of April-May 2017 accused Sarthak Kapoor made a call on her mobile phone NO:9868155090 and told her that Shreya Sharma ka Vipranjal naam ke ladke ke saath mailjol hai aur vo accha ladka nahi hai. Lateron she came to know that Sarthak Kapoor has been harassing her daughter and wanted to have friendship with her daughter again. She along with her husband, State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 15 :
Pinky and her daughter met with parents of Sarthak Kapoor and made accused to understand not to follow her daughter and not to harass her. Accused was repeatedly pressurizing her
25. On 25.08.2017 police called her to reach at A-6/59, Ground Floor Sector 17. She reached there. Many police officials were present there. Police had shown the footage of CCTV recording dt. 16.08.2017 of about 5 pm. In that footage from 5:01:01 till 5:01:04 pm one boy was seen moving, whom she identified as Sarthak Kapoor. In the same footage from 5:01:26 pm to 5:01:48 pm her daughter Shreya Sharma is also visible carrying the black colour bag. Police had also shown her the recording of another camera in which from 5:01:15 pm to 5:01:27 pm her daughter is visible and she identified her. In the footage her daughter and Sarthak are visible moving together. The above said CCTV footage was loaded in the pendrive. The DVR and the accessories were wrapped in white cloth, sealed and seized vide seizure memo Ex.PW6/D.
26. The witness was shown the poem written by Shreya Sharma. Witness stated that this poem is in the handwriting of her daughter. The same is Ex.PW1/F1 to Ex.PW1/F4. Witness has also correctly identified the accused. The witness has identified the bag and the books as belonging to her daughter which are collectively Ex.PW6/Article1. She identified the pair of chappal belonging to her daughter as Ex.PW6/Article2. She identified the clothes of her daughter as Ex.PW6/Article-3. The DVR with adopter is identified as Ex.PW6/Article-4. The footage is played on the pendrive wherein she State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 16 :
identified the accused as well as her daughter. The DVD in which she identified the accused as well as her daughter, the snap shots are also there in the DVD taken from the two CCTV footage and in that also she also identified the boy as Sarthak Kapoor and the girl as her daughter the DVD is Ex.PW6/Article6.
27. One leading question was put to the witness by the Ld. APP for the State with the permission of the court. Q. I put to you that you told to the court that police told you that dead body of your daughter is lying behind No.A-7/174-175, Sector-17 Rohini, Delhi and you also told on the asking of the police that Sarthak Kapoor pointed out the dead body of your daughter. Which one is correct?
Ans. I along with my husband reached there and inquaired from the police as to where is my daughter, Police asked Sarthak Kapoor, bata inki beti kahan hai?. Thereafter, Sarthak Kapoor ne agey agey chal kar vo jagah dikhai jahan meri beti ki dead body padi thi.
Q. On which number you called Pinky?
Ans. 8800310692.
28. There is also chating between her daughter and accused on Instagram. In that chating accused is insisting time and again her daughter shall hear the song of B.Praak "Mann Bharya" and also that she shall concentrate on the lyrics of the song and insisting to meet her.
29. During cross examination she deposed that her duty hours in the month of August 2017 were from 7 am to 2 pm. On 16.08.2017 State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 17 :
she was on leave and was at home. Her husband usually leave in the morning at 8:30 or 9:00 am and there is no fixed time of his return. She does not know at what time her husband left his office for home on 16.08.2017. The tution timing of her daughter was from 5:30 pm to 8:00 pm. She used to go to tution on alternate days i.e. Monday, Wednesday, Friday. She was taking tution for Maths and Physics. She was also taking tution for chemistry from Naveen Jain, Sector 16 Rohini from 5 pm to 6 pm on alternate days i.e. Tuesday, Thursday and Saturday. She does not remember if she told to the police that she made a call to Rupesh and inquired "Shreya Sharma kya aaj late aa rahee hai ya tution khatam nahi hui hai". However, this fact was not found mentioned in her statement Ex.PW6/DA. She does not remember if she told that on 16.08.2017 her husband made call on the mobile phone of mother of Sarthak Kapoor. However this fact was also not found mentioned in her statement Ex.PW6/DA. She was confronted with her statement where it was not found mentioned that the police lifted the bag of her daughter. She does not remember if she told the police in her statement Ex.PW6/DB that accused Sarthak and her daughter are visible moving together. She admitted that before 16th August she had telephonic conversations with the accused many times. She did not make any call to the accused at any point of time. However, accused used to call her. She does not remember the complete mobile phone number of the accused however last four digits were 2521. She does not remember the mobile phone number used by her daughter except the mobile phone State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 18 :
number which was with her on the day of incident. Her daughter used the mobile phone No. 8826523695 many times prior to 16.08.2017 also. The handset make Gionee was of her mother-in-law which her daughter was using on that day.
30. Her daughter was not carrying her SIM and mobile phone with her on the day of incident. Her daughter used to talk with her friends some times using her mobile phone and some time her (mother) phone number. She was not knowing before the incident if her daughter was using Instagram, What'sapp, facebook etc. Her daughter never opened any social networking site using her (mother) mobile phone. Her daughter was using single SIM facility phone. She is using what'sapp but not using facebook and instagram. She never sent any message to her daughter on what'sapp. She does not know if her husband ever sent any message to her on what'sapp. Only one number in her name was in operation on 16.08.2017. She does not remember in whose name the mobile phone number used by her daughter was issued. She admitted that mobile phone No.9873764641 and 7011158680 were registered in her name. Mobile phone No.9873764641 was got dis-connected in the month of 2017 and was not operational. Three four mobile numbers were registered in the name of her husband in the month of August 2017 out of which she was using mobile No.9868155090. 9810646040 is the other number used by her husband. On 16.08.2017 she did not make any call on the mobile phone number of mother of accused. She does not remember at what time and how many times her State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 19 :
husband talked with mother of Sarthak Kapoor. She cannot tell the exact time when she made call to Rupesh however, she made a call to him after 8:15 pm on 16.08.2017. In her presence police did not recover any mobile phone in this case. After talking to Rupesh she made call to her one or two relatives but she does not remember their mobile phone numbers but the same are saved in the contact list of her mobile phone. She cannot tell the time when she left the house for Titiksha Public School in search of her daughter. She along with Deepak left the house on his bike in search of her daughter. She does not know at what time she reached the tution centre of Rupesh with Deepak. She did not inquire from any person at the tution centre except Rupesh. She remained at tution centre for about 15-20 minutes. Before leaving for the tution centre she made a call to her friend Pinky. She made a call to Pinky only once. She did not visit gate No.7 of block No.7 while going to tution centre and returning. While going with her nephew in search of her daughter she had seen that gate and the place but she did not make any inquiry from any person near that gate. She also did not make any inquiry near the gate while coming back from the tution centre. The distance between tution centre and gate No.7 is about 100 steps. After tution centre she along with Deepak searched for her daughter in 3 - 4 parks in sector-17. She does not remember at what time they reached Titiksha Public School. She made inquiries from 2-4 persons about her daughter near Titiksha Public School. She admitted that school was lying closed at that time. She made inquiries from the public State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 20 :
persons who were available near Titiksha Public school. She and her husband reached near Titiksha Public School almost simultaneously and thereafter made inquiries from the public persons. The public persons from whom she made inquiries were not known to her. She does not remember till what time they remained near Titiksha Public school. She cannot tell the time of her reaching home after searching her daughter at Titiksha public school. Neither she nor her husband had made any written complaint either in the school or to the police that Sarthak Kapoor had beaten her daughter in the month of April - May 2017. She admitted that her daughter was studying in co-ed school. But she denied the suggestion that her daughter was having boy friends.
31. After the police left their house they again went in search of her daughter in the parks etc. while searching for her daughter they also went to the police station to find about her daughter. Accused Sarthak kapoor and his parents were already in the police station when they reached there. They remained there for about 20- 25 minutes.
32. She and her husband were searching for their daughter when her husband received the call at 4:30 am from the police. They reached the place of recovery of dead body within 15 -20 mintues of receiving the call. No public person was present there with the police except accused Sarthak Kapoor. Only she and her husband reached there. The other persons were searching for her daughter at different places separately. The place where dead body was found was in State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 21 :
between H.No.A-7/174 and A-7/175. She cannot tell the width and length of the space where the body was found. It might be correct that the distance between H.No.A7/174 and A7/175 was about 4 to 5 ft. she admitted that on both sides there were iron gates. The gate on the side of A-7/174 and A7/175 was open when she and her husband reached there, but she cannot tell about the other side gate. They might have remained at the place of recovery for about 2 - 2½ hours. When they reached the place it was dark. Police officials were carrying torches with them. Photographs were taken. Seizure memos were prepared which are in the handwriting of SI Satender. Sarthak Kapoor accused, one HC and SI Satender signed those documents. Ld. Counsel asked whether Sarthak Kapoor had already been arrested when you reached there and the witness answered that she does not know but one police officer was catching hold the hand of Sarthak Kapoor.
33. She admitted that her daughter used to participate in Zonal Sports Competition representing the school. She does not know since when her daughter used to participate in the Sports Competition. Other boys and girls of the same school also used to participate in the Sports Competition. She had no knowledge if Sarthak Kapoor accused also participated in the Zonal Sports Competition representing the school for the last three years.
34. She does not know the distance in between their house and A-7/155-156 Sector-17, Rohini. She does not know the distance between A-7/155-156 and sector-17 Rohini and A-7/174-175 sector- State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 22 :
17 Rohini. On 16.08.2017 from 4 pm to 17.08.2017 she was carrying mobile phone having No.9868155090 she does not remember if she was carrying her mobile set everywhere she visited from 16.08.2017 to 17.08.2017. Her other mobile phone No.7011158680 remained at her residence during the said period. When her daughter left for tution she was having mobile phone No.8826523695. She made the call on the above said number on 16.08.2017 after 8 pm. The bell rang twice and thereafter it was coming switched off.
35. Ld. Defence counsel asked does she has any knowledge whether any person called on the mobile phone of her daughter and she replied that her husband was making call on the phone of her daughter after 8:00 pm on 16.08.2017. Is it correct that after 3:44 pm after on 16.08.2017 no call was made on the mobile phone No.8826523695 and the witness replied it is wrong. She made the call after 8:00 pm. A court question was asked :
Q. Did she talk with her daugher on mobile phone No.8826523695 after 3:44 pm on 16.08.2017 and the answer came. No.
36. 3-4 police officials were with them when they were called to watch the CCTV at the house of Parmod Kumar. The CCTV footage was copied in the pendrive in her presence. The pendrive was not kept in the parcel which was seized by the police. Accused Sarthak Kapoor did not accompany them in search of their daughter on the night of 16.08.2017.
37. She does not know if Sarthak Kapoor and her daughter State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 23 :
were knowing each other very well being student of the same school. She does not know if Sarthak Kapoor and her daughter were going in the Zonal competition together. She stated that she was not getting any list from the school as to who are going in Zonal Competition on behalf of school. She denied the suggestion that Sarthak Kapoor had not committed any offence as alleged by her in her examination in chief.
38. Ct. Virender Singh was examined as PW-7. He deposed that on 17.08.2017 he was in the mobile crime team as photographer. On that day after receiving the call he along with mobile crime team headed by SI Jagdeep Nara reached the street where H.No.A-7/174-175 sector-17, Rohini were sitauted. He clicked 19 photographs of scene of crime where dead body of a girl was found. The 14 developed photographs are Ex.PW7/A1 to Ex.PW7/A14. The negatives are Ex.PW7/B1 to B19.
39. During cross examination by the defence counsel he stated that in the morning at about 5 am the Incharge of the mobile crime team received information. He does not remember the DD number vide which they left office. They were in vehicle No. DL 1VA 7845. They reached the spot at about 5:30 am. They remained on the spot for an hour. SHO, Addl. SHO and SI with staff of PS: KNK Marg were there. 3-4 public persons were also present on the spot. He denied the suggestion that he did not visit the spot or that he is deposing falsely.
40. SI Jagdeep Nara Inchage Mobile Crime team was State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 24 :
examined as PW-8. He deposed that on 17.08.2017 on receipt of call from control room he along with HC Virender photographer and other staff reached the street situated in between H.No.A7/174 and A7/175, Sector-17, Rohini. IO SI Satender, Addl. SHO and SHO along with other staff of PS: KNK Marg met them there where dead body of a girl was found. He inspected the scene of crime and photographer took the photographs. He prepared the scene of crime report Ex.PW8/A having his signature. Accused Sarthak Kapoor was also present on the spot and he correctly identified the accused. They remained on the spot from 5:30 am to 6:30 am.
41. During cross examination by Ld. Counsel for accused persons he stated that he received information at about 5:00 am at his office. He made departure entry but he does not remember the DD number. They reached the spot in the vehicle having registration No.DL 1VA 7845. The vehicle is driven by Govt. Official i.e. ASI Satibir. In his presence driver of the vehicle did not make entry in the log book. At about 5:30 am they reached the spot. 8 to 10 police officials and 3-4 public persons were present on the spot. He does not know if accused was formally arrested or not, but he was in the custody of the police. He prepared Ex.PW8/A at the spot. He admitted that in Ex.PW8A it is not mentioned that Sarthak Kapoor was in police custody. He stated that IO informed him that accused Sasrthak Kapoor is in police custody. He denied the suggestion that he did not visit the spot.
42. HC Ganeshwar was examined as PW-9. He deposed that State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 25 :
on 04.10.2017 on the direction of SHO he received documents and forwarding letter for depositing the same in FSL vide RC No.196/21/17. He deposited the documents in FSL and obtained the copy of RC and acknowledgment. He returned to the police station and handed over the same to the SHO. During the period document remained in his possession no one tampered with the same in any manner.
43. During cross examination by the Ld. Defence Counsel he deposed that at about 11 am or 12 noon he was directed by SHO to deposit the documents in the FSL. He does not remember the DD number vide which he left the police station for going to FSL. He reached FSL within 10-15 minutes from the police station. He cannot tell the name and designation of the officials to whom he delivered the documents in FSL. He cannot tell the DD entry vide which he reached the police station after depositing the document in FSL. He denied the suggestion that he had not deposited the documents in the FSL as deposed by him.
44. Kishan dealing assistant transport department was examined as PW-10. He produced the record of Hero honda motorcycle having registration No: DL 8S AV 6757. As per the record this motorcycle is registered in the name of Sh. Ravi Kapoor S/o Sh. S.P. Kapoor R/o D-2/41/42, Rohini sector-11, Delhi. The vehicle was registered on 18.10.2011 and is valid upto 17.10.2026. He proved the record as Ex.PW10/A. The testimony of witness has gone unchallenged and uncontroverted.
State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 26 :
45. Sh. Vipranjal was examined as PW-11. He deposed that he is studying in Titiksha Public School Sector-11, Rohini since 5 th class. He appeared in 12th class examination this year. Shreya Sharma was her class mate and used to study in class 12 th A. Accused Sarthak Kapoor was also studying in their school and he passed out 12th class. They were aware that Sarthak Kapoor and Shreya Sharma were friends. Shreya informed him that Sarthak is harassing her and pressurizing her to meet him. Shreya was disturbed due to these facts and was in depression. The class mates/ friends of Shreya who were acquainted with her, accused Sarthak used to threaten them. Accused Sarthak Kapoor made a call on the mobile of the mother of Shreya and told her that he (Vipranjal) is not a good boy. Mother of Shreya Sharma made a call on the mobile phone of her mother 7042244480 and informed about the above fact. Accused Sarthak Kapoor also made a call on the mobile phone of his mother informing that her son Vipranjal should not contact, shreya in the school. Thereafter, accused made a call to him on the mobile phone of her mother. He talked with the accused and accused said, "tu Shreya Sharma se baat mat kar varna tere liye theek nahi hoga". Thereafter, he conveyed these facts to his father. His father made a call to the accused from his mobile phone No.9560192901 and scolded him. Thereafter, he along with other class mates of Shreya Sharma stopped talking with her. Lateron he came to know that Shreya Sharma had been murdered. He identified accused.
46. During cross examination he stated that in the mid of State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 27 :
October 2017 one Inspector and two other police officials of PS: KNK Marg visited his house and recorded his statement. He and Shreya were studying in the same clase from class 7 th. She used to talk with all the class mates. He never visited the residence of Shreya Sharma. Shreya Sharma also never visited his house. It was in the start of class 12 but he does not remember the exact date and month when Shreya Sharma told him that she is being pressurized and teased by Sarthak Kapoor. At that time she was weeping in the class. He told the police that Shreya Sharma was disturbed he did not use the word depression. Ld. Counsel asked how many other boys were threatened by Sarthak Kapoor and he stated that he does not know. He did not complain to the school authorities that Sarthak is threatening him. He told to his father. He has no knowledge if any other student of his class complained to the school authorities that Sarthak Kapoor is threatening him. He does not remember the exact date when mother of Shreya Sharma talked with his mother but it was in the end of April 2017.
47. His father talked with Sarthak Kapoor on mobile phone in his presence. He does not remember the date when his father talked with Sarthak Kapoor on telephone but it was in mid May 2017. He was using mobile phone No.7042244480 in class XII, but he had never taken the mobile phone to the school. He used to take the mobile phone only for going to coaching classes. He does not know the mobile phone number of Sarthak Kapoor. He admitted that he made calls to Sarthak Kapoor. As he had also made many calls to State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 28 :
him. These calls were received during a limited period of April and Start of May 2017. He does not know the mobile phone number of the Shreya Sharma. He admitted that Shreya Sharma also called him on mobile phone and he also called her on her mobile phone. Sarthak Kapoor also made a call to her mother in the end of April 2017. This fact was told to him by his mother when he returned from the school.
48. Ld. Counsel asked when did he and other class mates stopped talking with Shreya Sharma. He answered that in May 2017. However, he was confronted with his statement where it was not found mentioned that the classmates stopped talking with Shreya Sharma in May 2017. However, it is mentioned that he stopped talking with Shreya Sharma. He denied the suggestion that he and Shreya Sharma were good friends or that accused never harassed or pressurized Shreya Sharma for talking with him. He does not know if Shreya lodged any complaint with school authority against Sarthak Kapoor. He admitted that all the classmates were active on social networking app such ash Instagram, Whatsapp and facebook. He admitted that students were connected with these apps. But he never connected Shreya on these apps.
49. Rajesh was examined as PW-12. He deposed that he is teaching in DTU in EC Department as Associate Professor. His son Vipranjal was studying in Titiksha public School, Sector-11 Rohini since class Vth. In the year 2017-18 his son was in class 12 th. Shreya Sharma was also in the same section with her son. In mid May 2017 State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 29 :
his son told him in the evening when he returned from the coaching class that Sarthak Kapoor is threatening him. He also told that Sartak Kapoor told to him Shreya Sharma se door raho nahi to achcha nahi hoga". His son told him that Shreya Sharma is his class mate and due to that reason he used to talk with her. On the same day after 10 pm he talked with Sarthak Kapoor on his mobile phone after taking number from his son. He was using the mobile phone No.9560192901. He and Sarthak Kapoor talked with each other for about 2:30 or 3:00 minutes. He scolded Sarthak Kapoor and asked him to stay away from his son. He also asked Sarthak Kapoor don't dare to call his son again and also told him that "mera beta coaching jata hai, usey akela samajh kar nuksaan pahuchane ke kisi bhi tarah ki koshish mat karna". Sarthak Kapoor tried to give some excuses but he did not listen to him. On 17.08.2017 when his son went to the school he came to know that Shreya Sharma had been murdered.
50. During cross examination by Ld. Defence counsel for accused he deposed that his statement was recorded on 13.10.2017 at 4:45 PM at his residence. Police firstly recorded the statement of his son and thereafter his statement on the laptop. He told the police that his son told him in mid May 2017 that Sarthak Kapoor is threatening him. However, the month and year is not mentioned in his statement. He was confronted with Ex.PW12/DA where it was not so recorded that he also told to Sarthak Kapoor mera beta coaching Jata hai ussey akela samajh kar nuksaan pahunchane ki kisi bhi tarah ki koshish mat karna. He denied the suggestion that he had State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 30 :
never made a call to Sarthak Kapoor in the manner deposed by him.
51. Kavita Dudeja was examined as PW-13. She deposed that she was working as head clerk in the administration of Titiksha Public School sector-11 Rohini. On 25.04.2017 Yogesh Kumar father of Shreya Sharma made a call from his mobile on her mobile provided to her by the school i.e. 9540953969. Yogesh Kumar informed her that Sarthak Kapoor had beaten her daughter outside the chemistry lab. She asked him to come tomorrow in the morning and let her look into the matter. Yogesh Kumar along with his wife came to the school next day at about 8:00/8:15 am. She again asked her the name of the boy and he told the name as Sarthak Kapoor. He took them to the officiating principle Upasna Kinra, as on that day regular principle was on leave. Yogesh Kumar told all these facts to the principle also. Yogesh Kumar told that he would also make a complaint as this incident had taken place in the school. Yogesh Kumar had to go to the Bank and therefore, he and his wife left asking for the report within an hour. After Yogesh and his wife left Shreya Sharma was called in the office of officiating principle. On inquiry Shreya Sharma started weeping and said, "mujhe maaf kar do mujhe chemistry lab ke bahar kisi ne nahi maara tha, mujhe kal shaam ko tution centre ke bahar Sarthak Kapoor ne maara tha. She made a call to the father of Sarthak Kapoor and asked him to come to the school. Father of Sarthak Kapoor told that he is on the shop and cannot come. He said that he is sending Sarthak kapoor and his mother to the school. Thereafter She called Yogesh on the mobile phone and told him the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 31 :
fact that Shreya Sharma was not beaten outside Chemistry lab but was beaten outside tution centre by Sarthak Kapoor. In the meanwhile Sarthak Kapoor along with his mother came to school. She told the mother of Sarthak Kapoor about the complaint. Mother of Sarthak Kapoor told her that Sarthak Kapoor and Shreya Sharma are friends. She told them that this matter has happened outside the school and also told that vo dost hain ya jo bhi hain aap log apas main solve karain. Thereafter, Sarthak Kapoor and his mother left. Yogesh Kumar also did not contact her thereafter. After some days mother of Shreya called her and told her Madam vo ladka phir disturb kar reha hai. She told her that madam ye matter bahar ka hai. Aap police ki help lijey ya apas mein solve keejeay. Mother of Shreya Sharma asked her to provide the telephone number of family of Sarthak Kapoor. Thereafter Shreya Sharma gave the number of cousin of Sarthak Kapoor and requested to find out the number of family members. She talked with the cousin of Sarthak Kapoor, got the number of parents of Sathak Kapoor and provided to Yogesh Kumar. Thereafter, she had not received any phone call from the family of Shreya Sharma and Sarthak Kapoor. On the day dead body was recovered she received call from Yogesh at 7 am who told that Shreya Sharma had been murdered. She also identified Sarthak Kapoor.
52. During cross examination by the defence she stated that police never served any notice on her in writing. Her statement was recorded by the police in the school but she cannot tell the name of State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 32 :
the police official who recorded her statement. Yogesh Kumar called her on 25.04.2017 between 7 or 8 pm. She does not remember exactly if she told the time of visit of Yogesh Kumar on 26.04.2017. She was confronted where it was not found mentioned that Shreya Sharma started weeping and said "Mujhe maaf kardo, Mujhe chemistry lab ke bahar kisi nay nahi mara tha". The class students of XII remained in the school till December 2016. She does not recollect the exact date and month when accused lastly attended the school. She stated that she is not competent to answer the question whether a person who is not a student can go towards the academic block i.e. classes and lab.
53. Pinky was examined as PW-14. She deposed that she knows Smt. Lalita w/o Sh. Yogesh for the last 6-7 years as she along with her was working in North Ex Mall in Shyala Shapers situated in sector-9, Rohini. She usually visit the house of Lalita and meet her other family members also. She also knows Shreya Sharma daughter & Nilesh son of Yogesh and Lalita. She also knows Smt. Leelawati mother of Yogesh. Sometime she used to drop Shreya Sharma at her tution centre in sector-16-17, Rohini Delhi. On 16.08.2017 at about 4:15 pm she left her house for the market of sector-17 Rohini for purchasing certain articles. At around 5:00 or 5:05 pm she was going back to her house on the road where tution Centre of Shreya Sharma is situated. She saw Shreya Sharma and Sarthak Kapoor near in front of gate N0.7, Pocket-A, Sector-17 Rohini, Delhi. She saw both Shreya Sharma and Sharthak Kapoor going together on the said State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 33 :
road. She was on her scooty. She slowed down her scooty and was astonished to see both of them together. She was in a hurry for going to her house as her son sunny was suffering from fever. She left for her house and thought that she would talked with Smt. Lalita lateron. After reaching home she was busy in looking after her ailing son and the other house hold course. At about 8:30 pm she received a telephone call from Smt. Lalita on her mobile phone No.8800310692. Lalita made a call from her mobile No.9868155090 who was perplexed and worried. Lalita informed her that Shreya Sharma had not reached home till that time. She informed Smt. Lalita that she had seen Shreya Sharma alongwith Sarthak Kapoor together near in front of Gate No.7 Pocket-A, Sector-17, Rohini, Delhi around 5:00 pm. On 17.08.2017 she came to know that Shreya Sharma has been murdered. She identified Sarthak Kapoor.
54. During cross examination she stated that her statement was recorded on 18.08.2017 in the PS in the evening hours by Anil Sharma. It was typed on laptop. She told the police in her statement that she received a call from Lalita, she was perplexed and worried. But this fact was not was not found mentioned in her statement. She is using the aforesaid number for 3-4 years. Besides the call received at 8:30 pm on 16.08.2017 she had also received and made calls to Lalita. She admitted that mobile phone No.987037810 belongs to her. She stated that she had given this mobile number to Smt. Lalita about 8-9 months back and was used by family members of Lalita. She had no knowledge who was using this mobile phone State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 34 :
number but it was lying in the house of Lalita. It was prepaid and not post paid. She herself had not made any call on the mobile phone of Smt. Lalita on 16.08.2017 at 19:55:56 hrs. she had not received any call from Smt. Lalita at 20:16:04 hours on 16.08.2017. She had also not made call from her mobile No.8800310692 on the mobile No.9868155090 of Smt. Lalita at 19:05:14, 19:05:51 and 19:16:49 hours. Againsaid she is not sure. On the intervening night of 16/17 she was not at home. She returned home at 3-4 am. She stated that after receiving call she left in search of Shreya Sharma. Before 16.08.2017 she had seen Sarthak Kapoor once in April and May 2017 also near Titiksha Public School. She denied the suggestion that she had never seen Sarthak Kapoor till he was arrested in this case or that she is deposing falsely.
55. Dr. Vijay Dhankar was examined as PW-15. On 17.08.2017 he conducted the post mortem on the body of Ms. Shreya. He gave the detail of the external injuries and internal injuries in the report. After post mortem he opined that the death is due to vaso-vagal syncope caused by pressure on the neck. Injury No.1,2 & 3 were ante mortem in nature, fresh before death and could be caused by blunt force. Viscera along with blood sample, clothes & articles on the body of deceased, blood sample on the gauze, vaginal swab, anal swab and nail clippings were preserved, sealed and handed over to the police along with sample seals. He proved the post mortem report as Ex.PW15/A.
56. On 06.11.2017 he received request from Inspector Anil State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 35 :
Sharma for further opinion regarding cause of death. In the said application it was explained that accused Sarthak Kapoor had pressed the neck of deceased forcibly using his elbow against the wall for a long time till she fell on the ground. The application is Ex.PW15/B. After considering the manner explained he opined that the death of deceased could be caused in the manner alleged. He proved his opinion as ExPW15/C.
57. He has also gone through the FSL result No:FSL/2017/- 6528 dt.28.09.2017. As per the report no common poison was detected in the viscera. In view of this report the cause of death as mentioned in Ex.PW15/A remains the same.
58. During cross-examination by the Ld. Defence counsel he stated that he did not get the videography or photography done at the time of post mortem. Injury No.1 and 2 as mentioned in column No.9 under the heading External examination were on the face. He denied the suggestion that he prepared the post mortem report and subsequent opinion at the instance of IO.
59. Ld. Counsel put the question Q. Whether vaso-vegal syncope can be caused due to fainting, heart and blood vessel dis-order?
Ans. Yes. But in this case there was injury on the neck and that was the reason and hence, natural causes are ruled out.
60. Jasmine Kaur was examined as PW-16. She was working as a teacher in Titiksha Public School, Sector-11 Rohini. She was examination cell Incharge of class XI and XII. On 13.10.2017 on the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 36 :
direction of Principal she provided the original answer sheet of student Shreya Sharma daughter of Yogesh Kumar studying in class 12th A. she checked the original answer sheet of Shreya Sharma and out of those answer sheets she handed over answer sheet of physics paper consisting of 10 leaves. She attested the same on each page, putting in her signature and date. The answer sheet is Ex.PW16/B. She handed over that answer sheet to the police officer in accordance with the notice received Ex.PW16/D. The police officials seized the same vide memo ExPW16/C. During the period answer sheet remained in her custody nobody tampered with the same in any manner. She identified the answer sheet available on file correctly.
61. During cross examination she stated that principal directed her orally to supply the original answer sheet. The seizure memo was prepared in her presence in the school itself. The seizure memo was typed on a laptop but she does not know to whom that laptop belongs. She does not know the name of the police officials who recorded her statement. She denied the suggestion that the answer sheet does not belong to Shreya or that she had handed over the answer sheet of somebody else in order to comply the notice.
62. Ms. Upasana Kinra was examined as PW-17. She was working as Sr. Incharge and Counsellor in Titiksha Public School. The principal of their school received a notice regarding age verification of Shreya Sharma student of class 12 th. The notice is Ex.PW17/A. Pursuance to the notice the desired document i.e. the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 37 :
copy of admission and withdrawal register Ex.PW17/B, copy of 10 th Mark sheet Ex.PW17/C, copy of MTNL bill in the name of Yogesh Kumar as ex.PW17/D, copy of date of birth certificate issued by Sub- registrar is Ex.PW17/E, copy of admission form Ex.PW17/F, copy of registration form Ex.PW17/G, running into 4 pages were handed over to her by the police vide covering letter Ex.PW17/H.
63. During cross examination she stated that on 28.09.2017 she was working as officiating principal of the school as the regular principal has retired. After month of April 2017 she took the charge of Principal and remained so till February 2018. She admitted that their school used to participate in Zonal Sports Activities which takes place once in a year. She cannot tell how many students participated in Zonal Sports Activities in the school. For participation in Zonal Sports Activities students were taken in the school bus. Shreya Sharma used to participate in Zonal Sports Activities in cultural events. She was representing the school continuously for the last 3 years. She is certain that she represented the school in 2017, but she is not certain about 2016 and 2015. Shreya Sharma was Brilliant student of their school and that is why she knew about her. She has no idea of Sarthak Kapoor participation in Zonal Sports Activities. She cannot confirm if he used to represent their school continuously for 3 years before he left the school. She admitted that accused left the school in March 2017. There is a distance between the administrative block and academic block of their school. She admitted that if anybody visits their school he has to make entry in the visitors book which is State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 38 :
placed on the main gate. No outsider can go upto the academic block without permission.
64. Rakesh Kumar was examined as PW-18. He is running a shop by the name and style of Teerat Telecom at shop No.97 Block- B, Sector-17, Rohini Delhi. He is selling the mobile phones and accessories. On 10.02.2016 he sold mobile phone model Gionee L- 800 Black colour to Smt. Lalita vide bill No.9893 copy of which is Ex.PW18/A bearing his signature at point A. He verified the original bill already Ex.PW1/E.
65. On 29.08.2017 police officials of PS: KNK Marg reached his shop to verify the original bill. He identified the original bill available on the file.
66. During cross examination he stated that he is the proprietor of Teerat Telecom. He admitted that he verified the bill on its photocopy. He also admitted that he has not brought the original bill book. He denied the suggestion that he had not issued the bill Ex.PW1/E or that he is deposing falsely. He admitted that original bill Ex.PW1/E does not bears his signatures. He stated that it bears the signature of his employee Sachin Shrivastava at point A.
67. Parmod Kumar was examined as PW-19. He deposed that on 25.08.2017 Police officials of PS: KNK Marg reached his home. He also reached home on the asking of police officials. He played the CCTV footage of dt.16.08.2017 from 5 pm onwards. Police officials wanted to see the footage in respect to the girl who has been murdered. Police had seen the CCTV footage of the cameras. At State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 39 :
that time a female was also called at his house. She was also shown the CCTV footage and she identified her daughter in the footage. That female told him that her daughter visible in CCTV footage has been murdered. The CCTV footage was taken in a pendrive by the police. On the request of police he handed over the DVR /hard disk and its adapter to the police which was also seized. The DVR and adapter were wrapped in a piece of cloth and seized vide memo Ex.PW6/D. He identified the DVR and the adopter as ExPW6/ Article4.
68. The pendrive was played on desktop having the footage of 16.08.2017 of 17:01:01 to 17:01:40 hrs and one boy is seen coming and going back. In the second clipping recorded in the same pendrive a girls is seen entering the lane through Iron gate at 17:01:15 hrs and is visible in the same frame till 17:01:27 hrs. the pendrive is already Ex.PW6/Article5. He identified that the clippings seen by him today are of the cameras installed in the street outside his house. These clippings were taken from the DVR which were handed over to the police.
69. During cross-examination he stated that no prior intimation was given to him by the police that they are coming. Police reached at his house at about 5:15 pm. They were 4-5 in number. He reached his house at about 6:00 pm. Police also called a female to reach his house. After about half an hour of his reaching there police called the female to his house. Police had not seen the entire CCTV footage of 16.08.2017. There are three CCTV cameras installed outside his State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 40 :
house. He admitted that in the CCTV footage shown to him his house and number are not visible. Police asked him to provide the ownership documents/bills of the DVR but the same were not with him and he told this fact to the police. The copy of footage on pendrive was taken at his house by SI Anil Sharma. He does not know the capacity of the hard disk as well as its make. The DVR and the adopter were sealed and seized at his house itself. The pendrive was brought by the police official.
70. Israr Babu Alternate Nodal Officer Vodafone was examined as PW-20. He brought the record of mobile phone No.9873764641. As per the record this number was issued in the name of Smt. Lalita Kumar w/o Sh. Yogesh Kumar. He proved the copy of customer application form as Ex.PW20/A and the copy of the voter ID card and Aadhar card annexed with the customer application form as Ex.PW20/B and Ex.PW20/C. Call detail record of this number from 01.10.2016 to 16.08.2017 running into 69 pages is proved as Ex.PW20/D.
71. He has also brought the record of mobile phone No.7838083280. He proved the copy of customer application form as Ex.PW20/E and the copy of Aadhar Card attached with the customer application form as Ex.PW20/A. As per record this number was issued in the name of Rakhi Kapoor w/o Sh. Ravi Kapoor. R/o D-
II/41-42 Sector-11, Rohini Delhi. He proved the call detail record of this number from 01.10.2016 to 16.08.2017 as Ex.PW20/G.
72. He has also brought the record of mobile phone State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 41 :
No.9899463666. As per the record this number was issued in the name of Rakhi Kapoor w/o Sh. Ravi Kapoor. The copy of customer application form is proved as Ex.PW20/H. The copy of voter ID card attached with the CAF is proved as Ex.PW20/I. The call detail record of this number from 01.10.2016 to 16.08.2017 is proved as Ex.PW20/J.
73. He has also brought the record pertaining to mobile No.9999616509. As per record this number was issued in the name of Ravi Kapoor S/o Sh. S.P. Kapoor. He proved the copy of customer application form Pre-paid is proved as Ex.PW20/K. The copy of voter ID card annexed with the CAF is proved as Ex.PW20/L. The original CAF is not traceable. The original post paid CAF is Ex.PW20/M which is also in the name of Ravi Kapoor and this mobile phone number was issued to Ravi Kapoor. Copy of the voter ID card annexed with the CAF is Ex.PW20/N. The call detail record from 01.10.2016 to 16.08.2017 is proved as Ex.PW20/O.
74. He also proved the cell ID chart of vodafone for Delhi and NCR as Ex.PW20/P. The certificate u/s 65B Indian Evidence At with respect to all the aforementioned CDR is proved as Ex.PW22/Q. All these documents were supplied to the police vide covering letter ExPW20/R.
75. During cross-examination he stated that he deposed on the basis of the record produced by him. He denied the suggestion that he has produced incorrect, tampered and incomplete record.
76. Israr Babu was recalled for further examination in chief State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 42 :
and this time he brought the record of mobile phone No.9899403666, 9999616509, 7838083280 and 9873764641 for the period 16.08.2017 to 17.08.2017. The call detail record of mobile Phone No.9899403666 is proved as Ex.PW20/S and the certificate u/s 65B Evidence Act is Ex.PW20/T. The call detail record of mobile No.9999616509 is proved as Ex.PW20/U. The certificate u/s 65B Evidence Act is Ex.PW20/V. The call detail record of 78380832 is proved as Ex.PW20/W and the certificate u/s 65B Evidence Act is Ex.PW20/X. The call detail record of mobile No.9873764641 is proved as Ex.PW20/Y and the certificate u/s 65B Evidence Act is Ex.PW20/Z. As per the record no call was made or received during this period. The Cell ID chart is Ex.PW20/I.
77. During cross-examination he admitted that he furnished the above said record on the basis of the record available with the company.
78. Pawan Singh, Nodal Officer Idea cellular Ltd., was examined as PW21. He proved the record of mobile phone No:9549953969. As per the record this number was issued in the name of Ms. Promil Bali daughter of Vishnu Dutta. The copy of CAF is proved as Ex.PW21/A. The copy of the voter ID card annexed with the customer application form is proved and the copy of the PAN card and documents of Titiksha Public School are proved as Ex.PW21/B. The call detail record from 01.04.17 to 30.04.17 is proved as Ex.PW21/C. The certificate u/s 65B Indian Evidence Act in respect of CDR is proved as Ex.PW21/D. State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 43 :
79. During cross examination by the Ld. Defence Counsel he stated that this number was issued to Titiksha Public School which was used by Ms. Promil Bali as per order dt.23.07.2010.
80. SI Ramesh Kuamr was examined as PW-22. He deposed that on the night intervening 16/17 August 2017 he was working as duty officer at PS: KNK Marg. On 17.08.17 at about 12:25 am he received information through wireless operator that, "daughter of caller aged about 17 years wearing Khahi colour shirt and black colour skirt, having wheatish complexion who had gone to tution at 5 pm and had not yet returned and she had not gone to tution also. the girl was carrying mobile NO. 8826523695 and she is not traceable from 8:15 pm, Sector-17 Rohini H.No.C-2/228, LIG flats near Mother Dairy. He had recorded this information and telephonically conveyed to SI Satender. He proved the copy of DD No.5A as Ex.PW22/A.
81. At 1:35 am SI Satender Kumar sent the rukka through HC Mahipal for registration of FIR. he fed the same in the computer through computer operator Ct. Anil. the computer generated copy of FIR is Ex.PW22/B. He made endorsement Ex.PW22/C on the rukka. He handed over the copy of FIR and original rukka to HC Mahipal for presenting the same to SI Satender for further investigation. The copy of FIR was sent to the Senior police officials and the information was also sent to missing persons squad. HC Mahesh of Crime was also informed about the same. He recorded DD No.8 in this regard and proved the copy as Ex.PW22/D.
82. At 4:15 am he received telephonic call of SI Satender who State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 44 :
requested for sending ERV staff along with night patrolling staff at A-7 Block, Sector-17, Rohini near park between sector-17 and sector-26, Rohini, Delhi. He informed to the staff of ERV Gypsy namely ASI Balraj and patrolling staff to reach at the aforesaid address. He recorded DD no.12A and proved the copy of the same as Ex.PW22/E. He proved the certificate u/s 65B Evidence Act as Ex.PW22/F.
83. During cross examination by the defence he admitted that he recorded the complete information in DD No.5A which was received from the wireless operator. He issued certificate u/s 65B Evidence Act after recording DD No.8A and after registration of the present case. He admitted that in the certificate there is no mention of the computer operator Ct. Anil. The copies of DD entries Ex.PW22/A, Ex.PW22/D and Ex.PW22/E are in his handwriting. He admitted that in the endorsement Ex.PW22/C there is no time mention. The time is mentioned in DD No.8A. He denied the suggestion that he issued certificate Ex.PW22/F on the basis of the false and concocted facts in order to complete the legal formalities.
84. Sh. Chander Shekhar Nodal Officer Bharti Airtel was examined as PW-23. He brought the record of mobile phone No.8826523695. As per the record this number was issued in the name of Yogesh Kumar S/o Sh. Hari Ram. He proved the copy of customer application form as Ex.PW23/A. The copy of voter ID card as per customer application form is proved as Ex.PW23/B. The call detail record from 01.11.2016 to 16.08.2017 is proved as State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 45 :
Ex.PW23/C.
85. He has also brought the record of mobile phone No.9810646040. This number was issued in the name of Yogesh Kumar S/o Sh. Hari Ram. He proved the customer application form as Ex.PW23/D. The copy of voter ID card annexed with the customer application form is proved as Ex.PW23/E. The call detail record of this number from 01.11.2016 to 16.08.2017 is proved as Ex.PW23/F.
86. He has also brought the record of mobile phone No.9868155090. As per record this number was issued in the name of Yogesh Kumar S/o Sh. Hari Ram. He proved the copy of the customer application form as Ex.PW23/G. The copy of the Voter ID card annexed with the customer application form is Ex.PW23/H. He proved the call detail record of this number from 01.11.2016 to 16.08.2017 as Ex.PW23/I.
87. He has also brought the record of mobile phone No.9716424064. As per record this number was issued in the name of Smt. Rakhi Kapoor wife of Sh. Ravi Kapoor. He proved the copy of customer application form as Ex.PW23/J. He proved the copy of Aadhar card attached with the customer application form as Ex.PW23/K. The call detail record of this number form 01.11.2016 to 16.08.2017 is proved as Ex.PW23/L.
88. He has also brought the record of mobile number 9870371810. As per the record this number was issued in the name of Ms. Pinki d/o Sh. Kalu Singh. He proved the copy of customer application form as Ex.PW23/M. He proved the call detail record of State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 46 :
this number from 01.11.2016 to 16.08.2017 as Ex.PW23/N.
89. He proved the certificate u/s 65B Indian Evidence Act of all the CDR's Ex.PW23/O.
90. He has also proved the call detail records of mobile No:8826523695, 93106464040, 9868155090, 9716424064, 9870371810 running into one page each from 16.08.2017 to 17.08.2017 as Ex.PW23/C1, Ex.PW23/F1, Ex.PW23/I1, Ex.PW23/N1 & Ex.PW23/M1. He proved the certificate u/s 65B Evidence Act with respect to the above mentioned CDRs as Ex.PW23/P. The cell ID chart is proved as Ex.PW23/Q. Nothing material came to discredit the witness during cross examination by the Ld. Defence Counsel.
91. ASI Manoj Kumar was examined as PW-24. He was handing over the charge of malkhana to HC Pradeep and proved the entries made in register No.19 as Ex.PW24/A to Ex.PW24/D. He also deposed that on 01.08.2017 he handed over one wooden box duly sealed and nine parcels duly sealed and sample seal to Ct. Dinesh vide RC No.161/17 Ex.PW24/E and road certificate No.162/21/17 Ex.PW24/F. Ct. Dinesh after depositing the same returned to the police station and handed over the acknowledgments of FSL as Ex.PW24/G and Ex.PW24/H. He also made the entries in register No.19 in this regard. On 29.09.2017 he handed over four sealed parcel to Ct. Vishal vide RC Ex.PW24/I. Ct. Vishal after depositing the same in FSL handed over the acknowledgment Ex.PW24/J to him. He made entry in register No.19 in this regard. HC Pardeep made entry in register No.19 in this regard under his supervision. State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 47 :
During the period Exhibits remained in malkhana nobody tampered with the same.
92. During cross examination he stated that he does not know what were the contents in the sealed parcels. He did not tell the IO in his statement that entries in Register No.19 and 21 were made by HC Pardeep. The road certificates are in the handwriting of HC Pardeep on his dictation.
93. HC Pardeep was examined as PW-25. He deposed that on 17.08.2017 he was posted at PS: KNK Marg as MHC(M). He was taking over the charge of malkhana from ASI Manoj Kumar. He again proved the entries made in register No.19 as Ex.PW24/A to Ex.PW24/D which were made by him but he was still in the process of taking charge from ASI Manoj. He also proved the copies of RC's as Ex.PW24/E to Ex.PW24/I. He proved the acknowledgement Ex.PW24/G, Ex.PW24/H and Ex.PW24/J. He stated that he made entries under the supervision of ASI Manoj Kumar. During the period the exhibits remained in their possession nobody tampered with the same.
94. During cross examination he admitted that road certificates and entries in register No.19 are in his handwriting. The road certificates were prepared by him on the dictation of ASI Manoj Kumar. He denied the suggestion that case property was tampered with and entries in register No.19 and 21 are manipulated.
95. Pankaj Sharma Nodal Officer Jio Reliance was examined as PW-26. He proved the record of mobile phone No.7011882835. State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 48 :
As per the record this number was issued in the name of Yogesh Kumar S/o Sh. Hari Ram. He proved the copy of customer application form as Ex.PW26/A. He proved the copy of Voter ID card annexed with the customer application form as Ex.PW26/B. He proved the call detail record from 01.10.2016 to 17.08.2017 of the above said number as Ex.PW26/C.
96. He also proved the record of mobile phone number 7011158680. As per record this number was issued in the name of Smt. Lalita Kumari w/o Sh. Yogesh Kumar. He proved the copy of customer application form as Ex.PW26/D. The call detail record of the above said number from 01.10.2016 to 17.08.2017 is proved as Ex.PW26/E.
97. He has also proved the record of mobile phone number 7982472521. As per record this number was issued in the name of Rakhi Kapoor w/o Sh. Ravi Kapoor. The copy of customer application form is proved as Ex.PW26/F. The call detail record of this number from 01.10.2016 to 17.08.2017 is proved as Ex.PW26/G.
98. He also proved the cell ID chart or the above said numbers as Ex.PW26/H. The certificate u/s 65 B Indian Evidence Act is proved as Ex.PW26/I. Nothing material came on record during the cross examination by defence counsel to dis-credit the witness.
99. Ct. Vishal was examined as PW-27. He deposed that on 29.09.2017 on the direction of the SHO and IO he received four sealed parcels having seal of AS for depositing the same in FSL vide RC No.159/21/17. He deposited the sealed parcels in the FSL and State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 49 :
obtained the acknowledgment and the copy of road certificate. he return to the police station and handed over acknowledgment and copy of RC to the MHC(M). Nobody tampered with the case property till it remained in his possession.
100. During cross examination he stated that he tallied the details of the pullandas mentioned in the RC. He deposited all the exhibits detailed in RC in FSL. He had also taken one unsealed hard disk 1 TB make Toshiba and three pendrives in unsealed condition as detailed in Ex.PW24/I. He denied the suggestion that he is deposing falsely.
101. Ct. Dinesh was examined as PW-28. He deposed that on 01.09.2017 on the directions of SHO he received forwarding letter and collected 10 sealed parcels three having seals of SK and seven having seal of BSA hospital along with sample seals for depositing in the FSL vide RC No.161/21/17 and 162/21/17. He deposited the exhibits in the FSL and obtained the acknowledgments. He returned to the police station and handed over the copies of RC and acknowledgments to the MHC(M). During the period exhibits remained in his possession no one tampered with the same in any manner. Nothing material came on record to discredit the witness during cross examination by the Ld. Defence Counsel.
102. Sh. Sunit Kumar Jr. Forensic Chemical Assistant was examined as PW-29. He received the documents in original.
Questioned hand writing was marked as Q1 to Q4 i.e. two sheets written back to back. The 10 admitted handwriting sheets were State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 50 :
marked as A1 to A20 written back to back. He examined the documents and opined that the person who wrote the red in handwriting stamp and markA1 to A20 had also wrote the red enclosed writing similary stamped and marked Q1 to Q4. He proved his report as Ex.PW29/A. The witness identified the document Q1 to Q4 as Ex.PW1/F1 to F4 and the admitted document is Ex.PW16/A collectively.
103. During cross examination he denied the suggestion that he prepared the report Ex.PW29/A at the instance of IO.
104. Sh. Ajay Kumar Sr. Scientific Assistant Officer FSL Rohini Delhi was examined as PW-30. He retrieved the data from the hard disc of DVR referred as exhibit HDD1, the mobile phones marked as MP2 and MP3, Sim cards SC1, SC2 and SC3 and the memory card as MC1 on the pendrive as PD1 having folders as data of HDD1, data of SC1, SC2 and SC3 and data of MC1. He prepared the additional copy of this pendrive as PD1 and forwarded to physics division of FSL for further examination in sealed condition. The exhibits were again sealed. He proved his report as Ex.PW30/A and the certificate issued u/s 65B is Ex.PW30/B. He identified the two pendrives marked as Ex.PD1 as exhibit PW6/Article5 and the other pendrive is Ex.PW30/Article1. He identified the DVR from the hard disc of which he retrieved the data on the pendrive and referred as HDD1 in his report as Ex.PW6/Article4. He identified the mobile phone make Gionee having IMEI No.867397021241197 and 867397022741195 having sim card of Vodafone and memory card of State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 51 :
Sandisk 2 gb referred in his report as mobile phone MP1, Sim card SC1 and memory card as MC1 as Ex.PW30/Article1, Article2. He identified the mobile phone make LeTV having IMEI NO:862539033769387 having two SIM cards one of Vodafone and other of Airtel. The mobile phone is referred as MP2 and the SIM cards are referred as SC2 and SC3 as Ex.PW30/Article-3. He also identified the mobile phone make Apple along with the adopter. The screen of the phone is found broken. No Sim card was found in the mobile phone having IMEI No.990001892789314 referred in his report as Ex.PW30/Article4.
105. During cross-examination he admitted that he received two hard discs. One hard disc was in the DVR received and the other was blank hard disc. The blank hard disc was used for taking mirror image of hard disc of DVR. At point 1 of laboratory examination of his report it is mentioned as sterile storage media on which he did coloning of HDD1. He admitted that besides that hard disc there are other media also which are used as sterile storage media. He denied the suggestion that he had prepared his report Ex.PW30/A at the instance of the IO or that no data was retrieved from any media in the manner deposed by him.
106. Dr. Subhash Chandra Sr. Scientific Officer, Chemistry was examined as PW-31. He conducted the viscera analysis and proved his report as Ex.PW31/A. The testimony of the witness has gone unchallenged and uncontroverted.
107. Sh. V. Lakshmi Narsimhan Asstt. Director Phsycis was State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 52 :
examined as PW-32. He deposed that on 21.03.2018 he received one envelope duly sealed from computer forensic unit. He examined the pendrive found in the envelope and opined that the files namely, "CAME 3 2017-08-16 17-00-00-17-02-59 CAM3" and "CAME 4-2017- 8-16 17-00-00-17-02-59 CAM 4". It was observed that each CCTV vido film contains one identified video shot. There is no indication of alteration in the identified video shot on the basis of frame by frame examination. The copy of the relevant video files and the image grabbed from the relevant file duration from these files are provided in the CD namely relevant data along with the report. He proved his report as Ex.PW32/A. He identified the pendrive examined by him as Ex.PW30/Article1. The CD is played on the desktop and after viewing the same he said it is the same CD which is prepared from pendrive and is now Ex.PW30/Article1.
108. During cross-examination he denied the suggestion that he had not examined the relevant data in the manner deposed by him or that he prepared the report Ex.PW32/A at the instance of IO.
109. Dr. Dhruv Sharma Asstt. Director Bio was examined as PW33. He conducted the biological and DNA finger printing on the exhibits and proved his report as Ex.PW33/A and allelic data chart as Ex.PW33/B. Nothing material came to discredit the witness during the cross-examination by the Ld. Defence Counsel.
110. HC Sandeep was examined as PW-34. He deposed that on 18.08.2017 he along with IO Inspector Anil and accused Sarthak Kapoor went to BSA hospital. On the application of the IO, Doctor State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 53 :
medically examined the accused and conducted his potency test. The doctor after examination handed over one white envelope duly sealed along with the sample seal. IO seized the same vide memo Ex.PW34/A. He identified the accused also. The testimony of the witness has gone unchallenged and uncontroverted.
111. HC Ved Prakash was examined as PW35. He deposed that on 25.08.17, he joined the investigation with Inspector Anil Sharma and SI Satender. They reached the place where the dead body of Shreya Sharma was found. They were searching for CCTV camera in the area. They found that CCTV camera was installed at House No. A-6/59, Ground Floor, Sector - 17, Rohini. Parmod Kumar met there outside whose house the CCTV camera was found installed. He agreed that he can show the footage of 16.08.2017.
Smt. Lalita, mother of victim also reached there. CCTV footage was played. In the footage, at about 5.00 p.m., one boy was seen and Smt. Lalita identified him as Sarthak Kapoor, who used to harass her daughter. In the same footage, after few seconds, one girl was seen carrying a pithu bag on her back. Smt.Lalita identified her as her daughter Shreya Sharma. In CCTV footage of another camera at about 5.00 p.m., one girl is seen and Smt.Lalita identified that girl as her daughter Shreya Sharma. IO took the copy of the relevant CCTV footage in the pen drive. IO requested Parmod Kumar to hand over the DVR along with its adopter. Parmod Kumar handed over DVR and adopter to the IO who put it in a cloth parcel, sealed with the seal of AS and seized vide memo Ex.PW6/D. He identified the DVR State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 54 :
and adopter as Ex.PW6/Article-4. The footage was run on the desktop from the pendrive Ex.PW6/Article-5. In the footage, at about 7.01.01 to 17.01.40 hours one boy is seen coming and then going back and then a girl is also seen in the same frame going in the same direction in which the boy went. Witness identified the footage as the same which was seized. In the second clipping a girl is seen entering the lane through iron gate at 17.01.15 hours and is visible in that frame till 17.01.27 hours. The witness also stated that two cameras are covering the same lane.
112. During the cross examination by the defence, he stated that he cannot tell exactly as to how many houses and building were checked to found the installation of CCTV camera. In the said street, there were about 20-25 hours. They were checking the houses from outside for the CCTV cameras. He does not know if IO served any notice under Section 91 & 160 Cr.P.C. on Parmod Kumar. They left the police station on 25.08.17 at 3.30 p.m. IO made the departure entry but he does not know the number. At about 5.00-5.15 p.m., they reached house of Parmod Kumar. Parmod Kumar was not at home at that time and reached later on i.e. after about 30-40 minutes. He is not sure who copied the footage in the pen drive. He does not remember at what time IO made call to Smt.Lalita and asked her to reach the house of Parmod Kumar. She reached there at about 6.00 p.m. The footage was taken in pen driver in the presence of Smt. Lalita. They all had simultaneously seen the CCTV footage. They left the house of Parmod Kumar at about 7.30 p.m. He State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 55 :
admitted that DVR and CCTV camera were in operation when they reached the house of Parmod Kumar. The seizure memo of DVR is in the hand writing of SI Satender.
113. SI Satender Kumar was examined as PW36. On the intervening night of 16/17.08.17, he was posted at PS KNK Marg and was on emergency duty. At about 12.30 a.m. he received telephonic information from Duty Officer regarding missing of daughter of caller, who had gone to tuition at 5.00 p.m. and had not returned home till 8.15 p.m. and that she could not be contacted on her mobile phone.
He along with HC Mahipal went to House No. C-2/228, Sector - 17, Rohini. Sh. Yogesh Kumar and his wife met them there. He recorded the statement of Yogesh Kumar Ex.PW1/A, made endorsement Ex.PW36/A, prepared rukka and handed over HC Mahipal Singh for getting the FIR registered. HC Mahipal went to P.S. and returned to the house of complainant and handed over the copy of FIR and original rukka to him. They searched for Shreya Sharma but she could not be found. Complainant provided the mobile phone of parents of Sarthak Kapoor. They went to police station. He contacted the parents of Sarthak Kapoor on the mobile phone provided by the complainant and requested them to reach police station KNK Marg. He also told them that daughter of complainant Shreya Sharma is missing and was seen with their son Sarthak Kapoor at about 5.00 p.m. on 16.08.17 at Sector - 17, Rohini, Delhi. He uploaded the information regarding missing of Shreya Sharma on Zip net. Patrolling staff of police station was also State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 56 :
informed.
114. In the night, parents of Sarthak Kapoor reached the police station with Sarthak Kapoor. He made inquiries from Sarthak Kapoor, who told that he met Shreya Sharma at about 5.00 p.m. near her tuition centre on 16.08.17 and after meeting her he went to his house at Sector - 11. On repeated and tedious interrogation, Sarthak Kapoor revealed that he met Shreya Sharma outside her tuition centre at A-7, Sector - 17, Rohini and took her to a small park from there he took her to back lane of houses. He talked with her and killed her by pressing her neck. He stated that he can pin point that place where he killed Shreya Sharma and her dead body is lying there. He along with HC Mahipal and Sarthak Kapoor left the police station. Accused led them to House No.A-7/174 & A-7/175, Sector -
17, Rohini. There was an iron gate in the back lane. He also informed the parents of Shreya Sharma to reach that place. Parents of Shreya Sharma also reached there. Sarthak Kapoor led them behind A-7/174 and 175 in the passage where there was an iron gate. Accused led them inside the gate. There one girl was lying, who was identified as Shreya Sharma. One bag and a pair of sleeper were also lying near the dead body. In the meanwhile, SHO and other staff also reached there. Crime team was called. He prepared the pointing out and recovery memo of dead body of Shreya Sharma Ex.PW6/A. Crime team Incharge inspected the scene of crime and photographer took the photographs from different angles. The plastic slippers of pink and cream colour lying near the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 57 :
dead body were put in a polythene, wrapped in a cloth piece, sealed with the seal of SK and seized vide memo Ex.PW6/B. The bag which was found lying near the dead body was picked. In the bag, there was one register, one text book of class 12, one physics book of class 12, three pen and one spectacles. All these articles were again put in the bag, wrapped in a cloth piece, sealed with the seal of SK and seized vide memo Ex.PW6/C. FSL team was also called at the spot. They found blood lying near the gate. The blood was lifted by the FSL team. It was put in an envelope sealed with the seal of SK and seized vide memo Ex.PW36/B. The blood stained concrete and earth control were lifted from there put in plastic container given Sl.No. 1 & 2. Both the containers were sealed with the seal of SK and seized vide memo Ex.PW36. He prepared the site plan of the scene of crime Ex.PW36/D.
115. He prepared the inquest papers i.e. Form 25.35 Ex.PW36/E. Investigation was assigned to Inspector Anil Sharma.
Inspector Anil Sharma moved application for postmortem. The dead body was identified by Yogesh Kumar and Deepak. After postmortem, dead body was handed over to the relatives. After postmortem, doctor handed over the exhibits to the IO which were seized vide memo Ex.PW36/E, F, G, H & I.
116. He along with Inspector Anil Sharma and other staff reached at police station. IO deposited the case property with MHCM. IO interrogated Sarthak Kapoor and arrested him vide arrest memo Ex.PW36/J. Accused was found in possession of mobile State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 58 :
phone make Letv having dual SIM of Vodafone and Airtel. The mobile phone was put in a plastic container, sealed with the seal of AS and seized vide memo Ex.PW36/K. Personal search of accused was conducted vide memo Ex.PW36/L. Accused made the disclosure statement Ex.PW36/M.
117. Pursuance to the disclosure statement, accused led them in front of House No. A-1/241, near office of Delhi Jal Board and from near a tree at the corner, picked up the ID Card of Titiksha Public School in the name of Shreya Sharma and handed over to the IO. The ID card was put in a plastic container, sealed with the seal of AS and seized vide memo Ex.PW36/N. Accused was produced before the court and his police custody remand was obtained. Accused led them to the road of Sector 16-17 divider, PCR Chowk to G3S Mall Road near ganda nala. There was an electric pole. There was one small wall along with road. They crossed the wall and from the bushes, accused pointed out the mobile phone of Shreya Sharma which he had thrown there. At that place, mobile phone black colour make Gionee L800, battery and back cover of the mobile phone lying in different parts. In the mobile phone, there was a SIM of Airtel and memory card of Sandisk of 2 GB. All these parts put in a plastic container, sealed with the seal of AS and seized vide memo Ex.PW36/4.
118. On 18.08.17 accused made supplementary disclosure statement Ex.PW36/P and revealed that he used his motorcycle and used to chat with Shreya Sharma at Instagram and Facebook using State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 59 :
apple I Phone. Accused led them to House No. D-2/41, 42 & 43 Second Floor, Sector - 11, Rohini, but was found locked. Thereafter, they returned to the police station. On 19.08.17, accused made supplementary disclosure statement Ex.PW36/Q. He told that he can access the chatting in between him and Shreya Sharma on Instagram by using the mobile phone of Inspector Anil Sharma. Accused accessed his Instagram ID on the mobile phone of Inspector Anil Sharma. The ID of the accused is iamsarthakkapoor and ID of Shreya Sharma is Shrey0120. Accused had shown the chatting in between him and Shreya Sharma. IO took 328 screen shots of chatting and transferred the same to the pen drive. The print outs were taken on 41 pages on both the sides. The screen shots were taken on compact disk and laptop. The photographs and compact disk were seized vide seizure memo Ex.PW36/R. The print outs of 328 screen shots are collectively Ex.PW36/S.
119. On 20.08.17, he again joined the investigation with IO. The accused was taken out from lock up. Accused led them to his house at D-2/41, 42 & 43, Second Floor, Sector - 11, Rohini, where father of the accused was present. In one corner of drawing room, a fridge was lying. On the said fridge, one apple I phone with broken screen and charger were found. One song titled "teenage nightmare" in two pages was also lying there. Accused produced the same. The mobile phone along with charger were put in a plastic container, sealed with the seal of AS and seized vide memo Ex.PW36/D. The hand written poem was seized vide memo Ex.PW36/U. The witness State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 60 :
identified the poem as Ex.PW1/F1 to F4. From outside the house, accused got recovered one motorcycle No. DL8S AV 6757 Honda Twister with key. It was seized vide memo Ex.PW36/V.
120. On 25.08.17, he again joined the investigation. He corroborated the testimony of PW6 Parmod Kumar and PW35 HC Ved Prakash regarding seizure of DVR along with adopter and pen drive. He stated that IO handed over the seal after use to him.
121. He along with IO perused the contents of Instagram and found screen shot no.329 where the accused asked the deceased to hear the song Man Bharey of B.Praak. SHO Inspector Mohar Singh opened the computer in police station and found the song on You Tube site. He download the video and lyrics of the song. The lyrics is Ex.PW36/W. The video of the song was copied on compact disk. The supplementary charge sheet in this regard was filed. The CD is played on the desktop and after watching and seeing the same, he stated that it is the same CD on which the song was copied. The CD is Ex.PW36/Article - 1. Witness has correctly identified the case property and also the CCTV video footage, the DVR and other articles recovered. He also correctly identified the accused.
122. During cross examination by defence counsel, he stated that he received the information about missing of Shreya Sharma telephonically at about 00.30 hours on the intervening night of 16/17 August of 2017. He was present in Sector - 16, attending another call at that time. He received copy of DD No.5A when he returned to the police station at about 2.00/2.15 a.m. He reached the house of State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 61 :
Yogesh Kumar within 15 minutes of receiving the call. He flashed the information on Zip net at about 3.00 a.m. He asked the complainant to provide photograph of missing girl but they were not having any photograph at that time. The print out of the information given on Zip net is Ex.PW36/DX. He admitted that on the print out, the time of uploading is not mentioned. He denied the suggestion that last line of statement of Ex.PW1/A is written with different pen or that same has been added later on. He made inquiries from Sarthak Kapoor and his parents between 2.15 a.m. to 4.00 a.m. Sarthak Kapoor and his parents reached police station within 5-10 minutes of his making the call . He did not record their statement. Initially, he interrogated the parents of Sarthak Kapoor and then Sarthak Kapoor. The parents of Shreya Sharma also reached the police station about 5-10 minutes of his reaching the police station and remained there for about 30 minutes.
123. They reached near house no. A-7/174 & A-7/175, Sector 17, Rohini at about 4.45 a.m. He made call to the complainant for reaching there. Complainant and his wife reached there after about 10-15 minutes of making the call. He admitted that Ex.PW36/B, Ex.PW36/C, Ex.PW6/B and Ex.PW6/C are not in his hand writing. He admitted that site plan Ex.PW36/D does not bear the signature of accused. He sent the message to crime team at about 5.00 a.m. and sent the message to call FSL team at about 7.30 a.m. FSL team reached the spot at about 8.30 a.m.
124. He cannot tell the mobile number carried by HC Mahipal State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 62 :
on the intervening night of 16/17.08.17. He was having mobile number 9350357528 & another number of Jio, number of which he does not remember. He does not remember which phone number he used for contacting the complainant and also giving information to the police station.
125. There was some blood lying on the ground near the elbow of deceased. A bag was lying at a distance of about 6/8 ft. from the dead body. A pair of slipper was lying at a distance of about 3 ft. from the dead body. He did not call the residents of A-7/174 or A-7/175 to join the investigation. He requested 2-3 public persons at the time of seizure to join the investigation but none agreed. The width of the road from the western side of the wall of A-7/174 till the park is about 20-22 ft.
126. He tried to find out if there is any CCTV camera installed near park and house no. A-174 and house no.A-7/175 but no CCTV camera was found installed. The complainant and his wife were present at the scene of crime when articles were seized. He did not obtain the signature of complainant on the seizure memos. He obtained the signature of wife of complainant. He admitted that no name is mentioned on the school books which were inside the bag and there is also no blood stains on the books. He denied the suggestion that books have been planted upon him.
127. Investigation remained with him till 9.30 a.m. on 17.08.17. The dead body was moved from the spot at about 7.00 a.m. Dead body was handed over to the relatives after postmortem at about State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 63 :
12.30 p.m. The seizure memo Ex.PW36/E, F, G, H & I are in the hand writing of Ct. Parveen. The witness admitted that there is no blood stains on the pair of chappal. He denied the suggestion that pair of chappal was planted in this case.
128. The arrest memo of accused was prepared in the police station at 2.00 p.m. Mother of the accused was told about his arrest. She was present in the police station at that time. They reached near A-1/241, near Bhugtan Kendra of Delhi Jal Board, Sector - 17, Rohini at about 3.15 a.m. IO requested 2-3 public persons to join the investigation when the accused got recovered the ID card of deceased Shreya Sharma but none agreed. IO did not serve any notice in writing on those public persons who refused to join the investigation. The distance between the wall of Bhugtan Kendra and place from where the ID card was got recovered by the accused is 6 to 7 ft. The main gate of Bhugtan Kendra is not on main road but on the other side. There was no employee or public person in Bhugtan Kendra at that time.
129. They reached near ganda nala from where the mobile phone was recovered at about 5.15 or 5.30. The bushes is at a distance of about 10 ft. from the edge of the road. IO did not ask any public person to join the investigation. He denied the suggestion that mobile phone was planted upon the accused. He visited the house of accused on 19.08.17 & 20.08.17. At that time, IO, accused and some other persons were with him. On 20.0817, they reached the house of accused at about 10:00/10.30 a.m. They remained at the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 64 :
house of accused for about two hours. IO did not ask any neighbour to join the investigation. He denied the suggested that no such recovery was effected from the house of accused or that poem has been planted upon the accused.
130. He denied the suggestion that accused is not visible in CCTV footage seen by him in the court or that accused had not met deceased on 16.08.17. He denied the suggestion that CCTV footage was not seized.
131. HC Mahipal Sharma was examined as PW-37. He fully corroborated the testimony of PW-36. He also corroborated the testimony of PW-36. He identified the accused and also the case property.
132. During cross examination by the Ld. Defence counsel, he deposed that at about 12.35 AM SI Satender telephonically received information from duty officer regarding missing of a girl. They were not in the PS when received information and were attending some other call in the area of PS KNK Marg. He does not know if SI Satender made departure entry while leaving the PS while leaving attending the call. After receiving the call they reached the house of complainant at about 12.45 AM. IO handed over the rukka to him at 1.20 AM. He reached the PS at about 1.25 AM. He returned to the house of complainant along with copy of FIR along with rukka. SI Satender put the information on Zipnet at 2.15 AM and also took the print out of the same. SI Satender called the parents of Sarthak Kapoor and Sarthak Kapoor by making call. Sarthak Kapoor and his State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 65 :
parents reached the PS at about 2.15 AM. Parents of the deceased also came to the PS. He and SI Satender after searching PS at 2.15 AM remained there till 4 AM. IO did not record the statement of Sarthak Kapoor and his parents between 2.15 to 4 AM. At 4 AM they left PS along with Sarthak Kapoor and accused took them to A-7/174 and A-17/175, Sector-17, Rohini. The complainant and his wife were not with them. They reached at A-7/174 and A-7/175 in the car of SI Satender at 4.15 AM. There was no source of light at the place where dead body was lying. Nobody was present there when they reached. SI Satender informed Senior Police officials about the recovery of dead body at about 4.15 AM. The dead body was not visible from the main road. There was an iron gate on the back lane of house No.A- 7/174 and A-7/175. Crime team reached the spot at 5.30 AM and remained at the spot for about an hour. SI Satender also called the FSL team at about 8 AM. He does not know when Sec.302 IPC was added and when Sarthak Kapoor was arrested.
133. SI Harish Chand Pathak was examined as PW-38. He deposed that on 17.07.17 at 00.06.20 hours call was received at PCR control room by Ct. Anil that, caller keh raha hai ki meri beti jiski age 17 years kahi khaki colour shirt, black skirt, sawla rang hai evening 5 PM tuition ke liye gayi thi jo ki abhi tak nahi aayi hai or tuition per bhi nahi puhunchi hai, mobile no.8826523695 jo ladki ke paas hai, 8.15 se nahi mil rahi hai, need police help". Ct. Anil fed this information in the computer. PCR form is proved as Ex.PW-38/A. He also proved the certificate under Sec.65 B of Indian Evidence Act as State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 66 :
Ex.PW-38/B.
134. During cross examination, he stated that the information about missing of the girl was sent to Sr. Citizen App at 12.00.25 hours. He generated the PCR form on the direction of ACP, Command Room, who received the request of police official of concerned police station. He admitted that he has not mentioned the serial no.of the computer and its description in Ex.PW-38/B. He denied the suggestion that he issued false certificate under Sec.65 B of Evidence Act.
135. Inspector Anil Sharma was examined as PW-39. He is the IO of the case. He fully corroborated the testimony of PW-36 regarding the investigation, arrest of the accused and seizure of the exhibits. He also deposed that dead body was identified by Yogesh Kumar and Deepak vide statements Ex.PW-1/B and PW-39/A. He moved an application Ex.PW-39/B for post mortem. On 18.08.17 he prepared application Ex.PW-39/C for Potency test of the accused. Dr. Vijay Dhankar examined the accused and gave the opinion Ex.PW-
39/D. He proved the certificate under Sec.65 B of Evidence Act with respect to the screen shots taken and the compact disc prepared from the chatting of Instagram. The certificate is Ex.PW-39/E. He also moved an application Ex.PW-39/F regarding taking the photographs of accused in FSL for comparison with the person visible in CCTV footage. He also moved an application for taking consent of accused for taking photographs Ex.PW-39/G but he refused. The refusal of the accused was recorded by Ld.MM Ms. State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 67 :
Kadambari Awasthi vide order dt.12.09.17 Ex.PW-39/H. He collected the call detail records, sent the exhibits to FSL. He also sent notice under Sec.91 Cr.PC through ACP to Instagram for providing log and registration detail of Instagram ID between accused and the victim from 13.08.17 to 16.08.17 vide Ex.PW-39/I and the reply of the Instagram is Ex.PW-39/J. He collected the FSL results. He identified the accused and also the case property.
136. During cross examination by the defence counsel for accused, he deposed that he left the PS on 16.08.17 at about 11 PM after making departure entry for night patrolling. He took over the investigation on 17.08.17 at about 9.15 or 9.30 AM. Sec.302 IPC was still not added when he took over the investigation. He reached the place of recovery of dead body at about 9.15 or 9.30 AM. The dead body had already been removed from the spot before he reached the spot. He reached the mortuary at about 10/10.15 AM. The post mortem continued till 12.30 PM. He left the mortuary at about 1 PM and reached the PS. They left the PS along with accused for potency test at about 10 AM on 18.08.17. Accused Sarthak Kapoor was present at the spot when he reached on 17.08.17. He did not record the statement of Deepak except about identification of dead body.
137. They reached near Delhi Jal Board office on 17.08.17 at about 3.15 PM. He does not know if the office was lying open at that time. He asked 2-3 persons to join the investigation but none agreed.
He did not enter the office of Delhi Jal Board.
138. They reached the place from where the mobile phone was State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 68 :
recovered at 6.15 PM. He was using mobile phone make Samsung J- 7 Prime on which accused logged on using his ID. The mobile phone was his personal in which he was using the official sim. The login account is of deceased Shrey0102 and the time and day is mentioned on the first screen shot as Sun 6.05 PM. The other details he has mentioned in his certificate under Sec.65 B of Evidence Act Ex.PW-39/E and the seizure memo Ex.PW-36/R. He requested the parents of deceased to hand over the mobile phone used by the deceased but they told that mobile phone used by the deceased was protected by password and they were not knowing the password. He has not placed on record any document to show that Ex.PW-39/I was sent to Instagram LLC through e-mail.
139. The distance between A-7/174 and A-6/59 is about 200 mtr. There are no CCTV camera installed by government in Sector 16 and 17 Rohini. The entire team was sent in search of CCTV cameras in the area. The CCTV cameras found installed only outside A-6/59 where the relevant footage could be found.
140. The Apple I phone, the poem and the motorcycle were recovered simultaneously on 20.07.17. The seizure memo Ex.PW- 36/T, PW-36/U and PW36/V are not in his handwriting . One is in the handwriting of SI Satender and two in the handwriting of Ct. Praveen. He admitted that signature of father of accused is not there on Ex.PW-36/U. While they were preparing this memo, the father of accused had gone some where and hence his signatures could not be obtained. He denied the suggestion that the poem was not State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 69 :
recovered from the house of accused and that is why signature of father of accused was not obtained. He denied the suggestion that he has not properly investigated the case.
141. Inspector Mohar Singh, SHO PS KNK Marg was examined as PW-40. He deposed that on 17.08.17 he received information that dead body of a girl Shreya Sharma was found at the instance of Sarthak Kapoor near house no.A-7/174 and A-7/175, Sector-17, Rohini. He reached there along with staff. SI Satender and other staff briefed him. The crime team and FSL team inspected the scene of crime. The dead body was shifted to the mortuary. The accused along with parents of deceased were also there. He directed Inspector Anil Sharma to conduct the investigation. He forwarded the charge sheet prepared by Inspector Anil Sharma.
142. He along with SI Satender perused the contents of Instagram and found that screen shot no.319 the accused had asked the deceased to hear the song Man Bharya of B. Praak. He opened the computer installed in the PS and found the song on the u tube side. He down loaded the video song and lyrics. The lyrics is Ex.PW- 26/W. The song was copied in CD Ex.PW-36/Article 1. He issued certificate under Sec.65 B of Evidence Act Ex.PW-40/A. He prepared supplementary charge sheet. The CD Ex.PW-36/Article 1 is played on the laptop and after watching the same witness stated that it is the same song which was down loaded by him and referred in scree shot no.319.
143. During cross examination by the defence counsel, he State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 70 :
deposed that he received the information about recovery of dead body at about 5/6 AM. He was in the PS at that time. He does not remember the exact time of reaching the place of recovery. However it might be 6 AM. Crime team was already there. FSL team arrived there after about two or two and half hours of his reaching the spot. He remained on the spot for about three or three and half hours. Accused was not arrested when he reached the spot. He did not sign the documents till he remained on the spot. The dead body was shifted at about 6.30/7 AM from the scene of crime. After the crime team had already inspected the scene of crime. Dead body was not on the spot when FSL team arrived. He admitted that he did not mention in the second supplementary charge sheet that it was filed after discussion with prosecution branch. He admitted that there is no direction either oral or in writing given by the court to file the second supplementary charge sheet. He denied the suggestion that he filed the second supplementary charge sheet with intention to implicate the accused by means of Instagram screen shot. Thereafter prosecution evidence was closed.
144. Statement of accused was recorded under Sec.313 Cr.PC wherein he admitted that he and deceased were studying in the same school and he was one year senior to her but he denied the evidence and answered most of the question that I do not know. He stated that he is innocent and have not committed any such offence. He wished to lead defence evidence and the case was fixed for defence evidence.
State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 71 :
145. Ms. Indu Chawla, PGT Physical Education at Titiksha Public School was examined as DW-1. She brought the details of sports events in which Shreya Sharma had participated. The details are Ex.DW-1/A. She has also brought the details of sports events in which Sarthak Kapoor had participated and proved the same as Ex.DW-1/B. The student, who used to participate in Zonal competition have to practise one and half months prior to the competition for about 45 minutes daily in the presence of Physical Education Teachers. The record Ex.DW-1/B pertains to the accused present in the court.
146. During cross examination, she admitted that in Ex.DW-1/B the name of the parents, class, section and roll number of Sarthak Kapoor is not mentioned. She also admitted that DW-1/B does not bear her initial and endorsement. She prepared report from the record, placed it before the Principal, who got typed on the letter head of school and signed it. She admitted that participants used to leave the school in school buses and two physical eduction teachers and other staff. She accompanied the participants in the events from 15.11.16 and 19.11.16. Thereafter defence closed the evidence and the case was fixed for final arguments.
147. I have heard Ld. APP for the State, Ld. Defence Counsel for the accused and perused the record.
148. In this case there is no eye witness of the offence of murder. The case is based upon the circumstantial evidence. The supreme Court laid down the principle's on the basis of which a State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 72 :
person can be held guilty even in the absence of ocular evidence and on the basis of the circumstantial evidence if the certain principles are followed. The Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 had laid down the following principles:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
149. The prosecution in order to establish the guilt of the accused, intend to prove the following circumstances. Circumstance of Last scene.
Circumstance of Recovery of dead body.
Circumstance of Recovery of Bag containing books & slippers of deceased Circumstance of Recovery of ID card of the deceased. Circumstance of Recovery of Mobile phone.
Circumstance of Recovery of the Poem written by the deceased. The previous conduct of the accused and Motive State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 73 :
150. I take up the circumstances one by one.
Circumstance of Last Seen.
151. Ld. APP submitted that in this case on 16.08.2017 Shreya Sharma had gone to take tution from Rupesh and thereafter she had not returned. When PW-6 mother of Shreya Sharma contacted Pinky she told that she had seen Shreya Sharma with Sarthak Kapoor the accused at about 5:00 /5:05 pm. Pinki has been examined as PW14. She has deposed that on 16.08.2017 at about 4:00 pm she had left her house for the market. After purchasing when she was returning at about 5:00 /5:05 pm on her scooty she saw Shreya Sharma and Sarthak Kapoor near and in front of gate No.7, Pocket-A, Sector-17 Rohini. Delhi. A about 8:30 pm she received the phone call of Lalita who told that Shreya Sharma had not returned and she told this fact to Lalita. This fact is also mentioned in the very first complaint to the police that is the statement of Sh. Yogesh Kumar examined as PW-1 wherein he has specifically stated that Shreya Sharma had been seen with Sarthak Kapoor at about 5 pm. The mentioning of the fact that Shreya Sharma was seen in company of accused at about 5:00 pm in very first complaint and the spontaneity with which the accused was named clearly support and fortifies the prosecution case of last seen.
152. Ld. APP further submitted that besides this evidence in this case. The CCTV footage was also recovered from the house of the cameras installed outside the house of Parmod Kumar PW-19 residing at A-6/59, Sector-17 Rohini that DVR was seized vide memo State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 74 :
Ex.PW6/D. The clipping of the same was taken. The clipping shows that at 17:01:01 hrs to 17:01:40 hrs a boy is seen coming and then going back and in the same clipping Shreya Sharma is also seen going in the same direction in which the boy had gone and in the other clipping from 17:01:15 hours to 17:01:27 hours Shreya Sharma is seen entering in the same street and in the second frame in which Sarthak Kapoor was also visible. She enters at 17:01:26 hrs and goes in the direction in which Sarthak Kapoor had gone. The seizure of the DVR has been proved by Parmod Kumar the independent witness as well as PW-6 the mother of deceased. The cameras according to Parmod Kumar were installed outside his house. Ld. APP submitted that this scientific evidence in the form of CCTV footage corroborates the testimony of Pinky and further strengthen the same. Ld. APP submitted that there is an FSL report which shows that there is no tampering in the CCTV footage on the basis of frame to frame analysis. Ld. APP submitted by examining these witnesses prosecution has fully proved and established the circumstance of last seen.
153. The Ld. Addl. PP in support of his arguments relied upon the judgment cited as Murugan v State of Tamilnadu, AIR 2018 SC 2149 wherein the Supreme Court has held that:
"32. A theory of "accused last seen in the company of the deceased" is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged.
State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 75 :
In this case, it was rightly held by the two Courts below against the appellant and we find no good ground to disturb this finding."
154. Ld. Defence counsel submitted that the onus was upon the prosecution to prove that Shreya Sharma was lastly seen in the company of the accused but the prosecution has miserably failed to prove and establish the same. Witness Pinky Sharma has been introduced lateron to make out a story. This is evident from the fact that in statement Ex.PW1/A the line, "mujhe baad mein malum chala ke meri beti shaam ko karib 5 baje Sarthak se mili" had been added lateron to strengthen the story. Ld. Defence counsel submitted that Pinky being colleague of Lalita and friend was added in order to prove and establish the story of last seen. Otherwise she was not there. Ld. Counsel submitted that even the testimony of Pinky and Lalita does not inspire confidence. Pinky has been examined as PW-
14. She stated that she had seen Shreya Sharma along with Sarthak Kapoor and stated that she was in a hurry as her son Sunny was suffering from fever but Infact when she gave the statement to the police she told that her daughter was unwell. This also shows that she was not there otherwise she would have told the name of his son instead of mentioning that her daughter was unwell. Ld. Counsel submitted that Lalita made a call from mobile phone No.9868155090 on the mobile phone No.8800310692. But the call detail record shows that on 16.08.2017 they have also exchanged calls at 19:05:14, 19:05:51 and 19:16:49 hours. Ld. Counsel submitted that this clearly shows that they were in touch with each other State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 76 :
continuously and if Pinky Sharma would have seen Shreya in the company of Sarthak Kapoor she would have informed Lalita immediately and not waited upto 8:30 pm when allegedly the call was made. Ld. Counsel further submitted that the call detail record clearly demolishes the entire story of the prosecution.
155. Ld. Counsel further submitted that so far as CCTV footage is concerned, it is not established that the same DVR was installed at the outside the house of Parmod Kumar examined as PW-19. The number of the house is not visible in any of the footage. He has not produced any document or bill that the same were purchased by him or owned by him. Ld. Counsel submitted that even in the CCTV footage the accused Sarthak Kapoor is not visible and some other boy is visible but the witnesses have wrongly identified him as Sarthak Kapoor. The recording has been managed. Ld. Counsel submitted that even no public witness has been joined at the time of recovery of DVR. The reports have also been manipulated. Ld. Counsel submitted that the onus was upon the prosecution to prove and establish this fact which the prosecution has been failed to prove. Ld. Counsel submitted that even otherwise circumstance of last seen does not point towards the guilt of the accused and is of no consequence.
156. After hearing the arguments and going through the record particularly Ex.PW1/A the CDR Ex.PW23/I-1, I found that according to the statements it is Pinky who told Lalita that she had seen Shreya in the company of Sarthak Kapoor at about 5:00 pm when she State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 77 :
received the call. Pinky deposed that Smt. Lalita mde the call on her mobile phone No.8800310692 from her mobile phone number 9868155090 as per the record available. This phone number is issued in the name of Yogesh Kumar. The customer application form has been proved as Ex.PW23/G. The call detail record has been proved as Ex.PW23/I. The call detail record for the dates 16 th and 17 of August was called again which is proved as Ex.PW23/I-1. This detail was called on the request of Ld. Defence counsel. This record shows that a call was made from mobile phone No.9868155090 on mobile phone No.8800310692 on 16.08.2017 at 21:41:09 hours and the duration is 28 seconds and it was an outgoing call. Ld. Counsel submitted that before that also they had conversation at 20:16:04, 20:26:53, 20:27:49 and so on but I do not found substance in the same as these are not the conversations but these are the messages as the duration is only 0 seconds. These messages may be generated due to missed calls going to each other but the record shows and corroborates the testimony of Pinky as well as Lalita that they had a talk only at 8:41:09 hours and not before that. That strengthens the story and also the testimony of two witnesses that it was around 8:30 pm Lalita came to know from Pinky that Shreya Sharma was seen in the company of Sarthak Kapoor. It is also important to note that according to Pinky she had seen them together in front of gate No.7, Pocket-A, Sector-17, Rohini at around 5:00 pm. It is also the place from where ultimately the dead body was recovered. Pinky has stood through the test of lengthy cross- State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 78 :
examination. No doubt she is colleague of Lalita but merely on that ground her testimony cannot be discarded.
157. In this case there is another evidence i.e. the scientific evidence in the form of CCTV footage. The police was searching for the footage or the CCTV cameras installed in the area. The cameras were found installed outside house No.A-6/59 Sector-17 Rohini.
According to this witness there were three cameras installed outside his house. In the two cameras covering two street the footage of Sarthak Kapoor as well as Shreya Sharma is visible. The footage infact shows that on 16.08.2017 at 17:01:01 hours Sarthak Kapoor is visible and is going back from 17:01:01 to 17:01:14 hours and in the same frame Shreya Sharma is also visible who enters this frame at 17:01:26 hours and going in the same direction in which Sarthak Kapoor had gone and in the second frame i.e. camera No.4 she enters the lane from the iron gate at 17:01:15 hrs and is visible till 17:01:27 hours. The witness PW-6 has correctly identified her daughter as well as the accused in those frames. The DVR has been identified by PW19 as well as PW6 and the other witnesses as the same which was seized by them from the house of Parmod Kumar. The seizure memo is proved as Ex.PW6/D. The DVR was sent to FSL for analysis. The copies from the record was made and the report is Ex.PW30/B. Image of the hard disc of the DVR was taken on the sterile material made available i.e. another hard disc. It was thereafter analysed. It was found that there are two relevant video films namely "came 3_2017-08-16_17-00-00_17-02-59 CAM 3" and, State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 79 :
"came 4 2017-08-16_17-00-00_17-02-59_CAM4" and the expert opined that each CCTV video film contained one identified video shot. There is no indication of alteration in the identified video shots on the basis of frame by frame examination. The report has been proved as Ex.PW32/A. Ld. Counsel tried to make out a case that two hard discs were sent and therefore it is not clear as to from which the copy has been made. I found that there is no substance in the same as the witness PW-30 has specifically stated that one was strile material on which the copy from the hard disc of the DVR was made. The constable Vishal PW-27 who took the DVR to FSL also deposed that he has taken one empty hard disc and three empty pendrives also for analysis to the FSL and deposited the same there. This fact is also mentioned in RC ExPW24/I. Under the circumstances I do not find any merit in the this contention that DVR was manipulated. The witness to the recovery memo's SI Satender examined as PW-36 and Inspector Anil Sharma examined as PW39 have fully supported and corroborated each other and corroborated the testimonies of PW-6 and PW-19. They stated that they had seen the CCTV footage only after Lalita was called there. Even Parmod also supported that they had seen the CCTV footage together. Under the circumstance and in view of testimony of these witnesses, so far as the recovery is concerned that is proved.
158. The MHC(M) have been examined as PW-24 and PW-25. They have proved the entries in the register No.21, register No.19 regarding deposit of the case property. Infact PW-24 was handing State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 80 :
over the charge to HC Pardeep PW-25. Therefore both of them have been examined to prove the same. So far as this DVT is concerned it was sent through RC No:195/21/17 proved on record as Ex.PW24/I. The FSL acknowledgement has been proved as Ex.PW24/J. Ct. Vishal has stated during cross-examination by the Ld. Defence counsel that besides the sealed parcel he has also taken one unsealed hard disc. 1 TB make Toshiba and three pendrives in unsealed condition. The same are also detailed in Ex.PW24/I. This fact is also reflected and is also deposed by PW-30. Ajay Kumar Sr. Scientific Assistant FSL, Delhi who stated that it is correct to suggest that he received two hard disc. i.e. one hard disc. was in the DVR received and one blank hard disc. The blank hard disc. was used for taking mirror image of the hard disc. of the DVR. At point one of the laboratory examination of the report it is mentioned as sterile storage media on which he did the coloning of the HDD1 i.e. the hard disc taken out from the DVR. In view of this evidence I do not find any merit in the contention that two hard disc were sent and it is not clear as to from which the copy was prepared.
159. In my opinion even if the statement of Pinky is to be discarded there is evidence in the form of CCTV footage which is proved to be not tampered with that the two were together at about 5:01 hours as visible in the CCTV footage. It is also important to note that the place where they were last seen together is not far away from the place where the dead body was found. There is proximity of space. The time is also important as thereafter none had seen State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 81 :
Shreya Sharma alive and only her dead body was found in the morning. The post mortem report also confirms the time of death as around the time when they were lastly seen together. Therefore, in my opinion this circumstance stands established and also points towards the guilt of the accused. This circumstance is also inconsistent with any hypothesis of innocence of accused. Circumstance of Recovery of Dead Body.
160. Ld. APP submitted that the other important circumstance is recovery of dead body at the instance of the accused. Ld. APP submitted that after the FIR was registered on the statement of Yogesh Kumar Ex.PW-1/A and the FIR Ex.PW-22/B. IO SI Satender called Sarthak Kapoor and his parents to the police station. IO interrogated Sarthak Kapoor. The fact that Sarthak Kapoor and his parents were called to the PS is also corroborated by the testimony of PW-1 and PW-6 as while searching for their daughter Shreya Sharma. They also visited the PS to find out if any clue is found by the police. When they reached the PS they found Sarthak Kapoor and his parents were also there and police was making inquiry from Sarthak Kapoor. Thereafter both Yogesh and Lalita left in search of their daughter. At about 4.45 AM SI Satender Dahiya asked the complainant Yogesh Kumar to reach near A-7/174, 175, Sector 17, Rohini. The accused Sarthak Kapoor during interrogation disclosed that he can get recovered the body of Shreya Sharma and led the police team to that place. PW-1 and PW-6 also reached there. At that place police asked the accused as to where is her daughter.
State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 82 :
Thereafter Sarthak Kapoor pointed out the place where the dead body of his daughter Shreya Sharma was lying. Ld. APP submitted that the dead body was found lying in the back lane of house no.A- 7/174 and A-7/175, Sector-17, Rohini. Crime team was also called. Incharge crime team SI Jagdeep Nara was examined as PW-8. He also stated that Sarthak Kapoor was present there and also correctly identified him. The photographs were taken of the scene of crime. The same are Ex.PW-7/A-1 to PW-7/A-14. Ld. APP submitted that prosecution has examined three witnesses with respect to the recovery of dead body i.e. Ms. Lalita examined as PW-6, HC Mahipal examined as PW-37 and SI Satender examined as PW-36. Besides that Yogesh Kumar PW-1 was also there, who reached the spot of recovery on the asking of PW-36 and he also stated that the dead body was recovered which was lying in the back lane of A-7/174 and A-7/175 at the instance of Sarthak Kapoor. Ld. APP submitted that all the witnesses are consistent. They all stated that recovery was effected on the pointing out of accused Sarthak Kapoor. He was not arrested by that time but that by itself does not effect the recovery. Ld. APP submitted that all the witnesses are consistent. Public witnesses have also supported prosecution case as it was early morning hours, therefore no other public witness could be joined at the time of recovery but still there are 2 public witnesses, signature of one has been obtained i.e. Mrs. Lalita on the document. Ld.APP submitted that rule of law is quality of evidence and not the quantity, therefore, even if signature of Yogesh has not been obtained on the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 83 :
pointing out of recovery Ex.PW-6/E that does not effect the merit of the case. Ld. APP submitted that this recovery of dead body at the instance of accused that also immediately after the commission of offence clearly proves and establishes that it was he who committed the murder and that is why he was knowing as to where the dead body is lying and got recovered the dead body.
161. Ld. Addl. PP in support of his arguments relied upon the judgment cited as Motiram Padu Joshi and Ors.v The State of Maharashtra, 2018 (8) SCALE 704 wherein the Supreme Court has held that:
"As held in various decisions, judicial approach has to be cautious in dealing with such evidence. It is unreasonable to contend that evidence given by related witness should be discarded only on the ground that such witness is related."
162. Ld. APP submitted that the onus which was on the prosecution has fully been discharged. Prosecution has successfully proved this circumstance which points towards the guilt of the accused and at the same time inconsistent with any hypothesis of innocence of accused.
163. Ld. Defence counsel submitted that in this case no recovery was effected at the instance of accused but in fact planted upon him. Police was already knowing as to where the dead body is lying and thereafter they manipulated the entire story. Ld. Counsel submitted that the witnesses have contradicted each other. According to PW-37 the dead body was lying at a distance of about 20 feet from the park whereas according to PW-36 there is road of State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 84 :
about 20 to 25 ft. in between the wall of house no.A-7/174, 175, Sector-17, Rohini. According to the witnesses the body was found in the back lane and in the back lane also the body was lying at a distance of 5-6 feet from the entry gate. This clearly shows that PW- 36 and PW-37 were not there. It was dark there. There were two entry gates, one installed towards A-7/174-175 and the other installed towards A-7/163. Ld. Counsel submitted that in fact recovery was already effected and that is also the statement made by Lalita and Yogesh Kumar and they stated that police had shown them the place where the dead body was lying. Ld. Counsel submitted that accused has nothing to do with the commission of offence. It is prayed that as there are contradictions in the testimony of PW-36 and PW-37 the benefit of doubt be given to the accused and he be acquitted.
164. After hearing the arguments and going through the record, I found that in the present case after the police got the information that Shreya Sharma is missing and police came to know that at 5 PM Sarthak Kapoor and Shreya Sharma were seen together. Sarthak Kapoor and his parents were called to the PS. PW-36 stated that he interrogated Sarthak Kapoor. During interrogation Sarthak Kapoor confessed and then he led the police team in the back lane of A-
7/174 and A-7/175, Sector-17, Rohini. From there at 4.45 AM on 17.08.17 PW-36 made a call to Yogesh/PW-1. Yogesh also corroborated the testimony of PW-36 that at 4.45 AM police made a call to him and asked him to reach at house no.A-7/174 and A-7/175, State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 85 :
Sector-17, Rohini. When they reached there they found the police present there along with Sarthak Kapoor. Here the testimony of PW- 6 is very important, who deposed that police said to Sarthak Kapoor "bata inki beti kaha hai? Sarthak Kapoor ne aage aage chalker vo jagah dikhai jaha per meri beti ki dead body padi thi" This statement of PW-6 coupled with statements of PW-36, PW-37 and PW-1 clearly shows and establishes that it was the accused, who pointed out the place and got recovered the dead body of Shreye Sharma. All the witnesses are consistent. There are no contradictions in the testimony of the witnesses. So far as the distance of the park from the dead body is concerned, I found PW-37 was not clear about the distance in feet as he gave the length of the court room as 20 feet which is much more then and hence not much importance can be attached. So far as the other facts are concerned the witnesses are consistent. All the witnesses stated that there were two gates to enter that back lane one installed towards house no.A-7/174 and A-7/175 and the other installed towards house no.A-7/163, Sector-17, Rohini.
They also stated that the small gate of the iron gate installed towards house no.A-7/174 was opened. When they reached there and then the accused pointed out the dead body. It is also important to mention here that this place is not far away from the place where Sarthak Kapoor and Shreya Sharma were lastly seen in the CCTV footage and also from the place where Pinki/PW-14 had seen Shreya Sharma and Sarthak Kapoor and it takes hardly 5 minutes to reach this place. As per PW-39 the distance between A-6/59 and A-7/174 State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 86 :
and 175 is about 200 metres. This place is also not far away from the tuition centre of the deceased.
165. Keeping in view the testimony of PW-1, PW-36, PW-37, in my opinion the onus which was on the prosecution has fully been discharged and prosecution has been able to prove the recovery of dead body of Shreya Sharma at the instance of accused Sarthak Kapoor. This circumstance also points towards the guilt of accused and is also inconsistent with any hypothesis of innocence of accused.
Recovery of Bag containing books & slippers of deceased
166. Ld. APP submitted that from the place where dead body was found one bag having one register on which there is a print "Study all Time", one book of physics of class XII, one book of Mathematics Text book Part-II for class XII, three pens, spectacles and a card were found. These were lying near the dead body. The bag is of black colour and all these articles are collectively identified as Ex.PW6/Article1 by PW-6 the mother of the deceased as belongings of the deceased. The same bag was seen carried by the deceased on her back in the CCTV footage. The DVR has been identified as Ex.PW6/D and the DVD was also played which is exhibit PW6/Article6 and on the pendrive on which the clipping was taken and played is Ex.PW6/Article5 in that also the same bag is also there on the back of Shreya Sharma. Even in the photographs which were taken by the photographer of the crime team as Ex.PW7/A1 to A14, particularly in photographs Ex.PW7/A13 and A14 that bag is visible besides that bag there is a pair of sleeper also which were also found State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 87 :
lying near the dead body. Both these articles were seized from the spot which was pointed out by the accused. The bag and the books Ex.PW6/Article1 were seized vide article Ex.PW6/C and the pair of slippers Ex.PW6/Article2 were seized vide memo Ex.PW6/B. This recovery of the articles belonging to the deceased on the pointing out of accused also points towards his guilt. Ld. APP submitted that prosecution has examined PW6, PW-36, PW37 and also PW-1 in order to prove and establish this fact that from near the dead body the articles of deceased were recovered. Ld. APP submitted that all the four witnesses are consistent and have fully supported the prosecution case. No public witness could be joined being the early morning hours of August. Ld. APP submitted that the independent witnesses who were the parents of deceased have fully supported and corroborated the testimony of PW-36 and PW-37. The signatures of PW-1 were not obtained on the seizure memo but the same were not required as one of the witness Lalita signed the same. Ld. APP submitted that all the three witnesses have stood through the test of cross-examination. They are consistent, credit worthy and the defence has failed to breach their trust worthiness. It is prayed that prosecution has proved the recovery of the bag Ex.PW6/Article1 and the pair of slippers of the deceased as Ex.PW6/Article2 at the instance of accused which also points towards the guilt of accused.
167. Ld. Defence counsel submitted that no such recovery was effected. Infact on the books which were found inside the bag and even on the register the name of Shreya Sharma has not been found State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 88 :
mentioned. Infact there was no such bag or books lying near the dead body there or even the slippers. Those have been planted only to create the evidence that Shreya was found there. Ld. Counsel submitted that even there is no blood mark on any of the book or on the slippers. No public witness has been joined. Even the neighbours where the dead body was found have not been called. The residents of H.No.A-7/174 and A-7/175 have also not been called. Infact no effort whatsoever has been made to join public witness. Ld. Counsel submitted that in the absence of any independent witness and also the fact that it was dark and there was no visibility and the premises was also found bolted from both the sides. It is not possible to enter there. Infact somebody else had committed this offence and planted upon the accused. This case property has also been planted upon the accused after bringing it from the house of deceased. Ld. Counsel submitted that the onus which was on the prosecution has not been discharged and it is prayed that benefit be given to the accused.
168. After hearing the arguments and going through the record I found that firstly, a black bag is visible in the CCTV footage, taken from the DVR. Ex.PW6/Article6. The pendrive in which the CCTV footage was taken is proved as Ex.PW6/Artice5 and the DVD is proved as Ex.PW6/6. From CCTV itself it is clear that Shreya Sharma at that time was carrying one bag. Even otherwise it is quite natural that a child going for taking tution must be carrying with her the books and the register and also the pens and for keeping all these State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 89 :
items a small bag which was being carried by Shreya also. In this case the articles of Shreya were identified by PW6 and there is no such cross-examination to PW-6 that this bag and also the books therein were not of Shreya or were planted upon accused. The fact that this bag and the pair of slippers were lying there is also mentioned in the report Ex.PW8/A given by the Incharge mobile crime team. So far as the question of not mentioning the name is concerned. I do not find that it makes any difference once the books are identified by the mother of the deceased and there is no cross examination on this aspect that these books does not belong to the deceased. Even otherwise besides that those books there is a bag which is also identified and also the spectacles of deceased and depends. Then there are also the slippers of the deceased which were found near the dead body. It is pertinent to mention here that those slippers were identified by the mother of the deceased. Issue raised by the Ld. Defence counsel is that those were planted books as well as slippers were planted but in the photograph ExPW7/A1 to Ex.PW7/A2. It is clear that there are no slippers or foot wears in the feet of deceased. The dead body is not found at the house or near that place and hence it cannot be said that she was moving bare footed even in the CCTV footage she is visible walking. Coupled with the fact that the slippers are identified by PW-6 as the same which her daughter was wearing. Under the circumstances I fully agree with the prosecution that the bag containing books, register, pens and spectacles belong to Shreya Sharma and even the slippers belongs State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 90 :
to Shreya Sharma. So far as the issue of non-finding of any blood stains are concerned. Infact even on the spot the blood was not found except that there was some injury on the elbow of the deceased. Even in the post mortem report in the external examination doctor has found two abrasions, one contused abrasion and a laceration of 9 cm into 6 cm present over the left elbow with the nibbling marks present at the places on the margins and the underline exposed soft tissue. The skin and the underlying soft tissues missing in the laceration likely to be rodent bite. There were also multiple superficial abrasion present at places over the face upper and lower limbs with irregular pattern granular surface likely to be ant bite like marks. From this it is clear that there were no bleeding injury which would have stained the books or other articles of the deceased. All the witnesses examined i.e. PW1, PW-6, PW-36 and PW-37 as pointed out by the Ld. Addl. PP have fully supported the prosecution case and have also stood through the test of cross- examination. There is nothing on record that they deposed falsely or had any reason to depose falsely against the accused. They are cogent, consistent, reliable and trust worthy. The defence has not been able to breach the credit worthiness of the witnesses. Keeping in view the testimony of these witnesses in my opinion prosecution has fully proved and established the recovery of bag, books, register, pens and the spectacles of the deceased Ex.PW6/Article1 and the pair of sleeper of deceased Ex.PW6/Article2 at the instance of accused. This circumstance point towards the guilt of the accused State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 91 :
and at the same time is inconsistent with any hypothesis of innocence of accused.
Circumstance of recovery of Identity Card of the deceased
169. Ld. APP submitted that in this case accused also got recovered the identity card Ex.PW-36/Article 2 of Shreya Sharma from near Bhugtan Kendra of Delhi Jal Board from front of house no.A-1/241 from the corner under a tree. This ID was issued by Titiksha Public School, for class XII A year 2017-2018. This ID card was seized vide memo Ex.PW-36/M. Ld. APP submitted that prosecution has examined three witnesses PW-36, PW-37 and PW-
39. Ld. APP submitted that all the three witnesses are consistent. They corroborated each other and have stood through the test of cross examination. IO/PW-39 made efforts to join the public witnesses and asked passersby to join in the investigation but none agreed. The gate of the office of Delhi Jal Board was also not on the side from where recovery was effected but on the other side. Ld. APP submitted that efforts were made but none could be joined, therefore, the police officials/witnesses can not be disbelieved merely due to reason of non joining of public witnesses. Ld. APP submitted that the prosecution by examining theses witnesses have fully proved and established the recovery of I card of deceased Ex.PW-36/Article 2 at the instance of accused. Ld.APP submitted that this recovery point towards guilt of accused and at the same time is also in consistent with any hypothesis of innocence of the accused.
170. Ld. Defence counsel submitted that according to the story State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 92 :
of prosecution the I card was recovered from the open space accessible to all. Public persons were also moving on the road but still no public person was joined that itself creates doubt regarding the truthfulness of the story of prosecution. Ld. Counsel further submitted that admittedly there was office of Delhi Jal Board that is Bhugtan Kendra near that place. The timing of the office of Delhi Jal Board is from 9 AM to 5 PM as admitted by the witnesses also but none was called from the office of Delhi Jal Board to join the proceedings. The public persons were also there in Bhugtan Kendra of Delhi Jal Board but from there also none was called to join investigation. Ld. Counsel submitted that this non joining of public witnesses despite availability creates doubt regarding the truthfulness of story of prosecution. Ld. Counsel further submitted that in fact no such recovery was effected. The accused has been falsely implicated and the I Card has been planted upon him in order to create false evidence against the accused.
171. After hearing the arguments and going through the record, I found that as per the evidence brought on record Shreya Sharma was a student of 12 th A in Titiksha Public School. The I card is also of Titiksha Public School of 12 th A. The recovery is effected immediately after the commission of offence i.e. on 17.08.17 itself. No doubt the recovery is from a public place and public persons were also available but the public persons did not join the investigation despite request by the police officials. This is an known fact now that the public in general in Delhi does not help the police or come forward in State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 93 :
the investigation to assist the police. Therefore, non joining of public witnesses despite the fact that they were there does not by itself demolishes the prosecution case or creates doubt about its truthfulness. It is settled law that a witness can be relied only if a witness is reliable, trustworthy inspires confidence irrespective of his employment. There is no such rule of law or rule of procedure that of police witness can not be relied unless corroborated by a public witness. No doubt duty is based upon the court to scrutinizing the testimony of police witnesses minutely where there is no public person join. In the present case as rightly pointed out by Ld. APP all the three witnesses are consistent. They have stood through the test of cross examination. The three witnesses corroborated each other. They are reliable. The defence has failed to breach their veracity during lengthy cross examination and I do not find any reason to disbelieve them. The reliance can be placed on the Judgment cited as Parmod Kumar v State (Delhi), (2013) 6 SCC 586 wherein it was held that:
"11. Thus, the submission that the whole case should be thrown overboard because of non-
examination of independent witness and reliance on the official witnesses cannot be accepted. Presently, we shall proceed to deal with the veracity and acceptability of the testimony of the witnesses. The learned trial Judge and the High Court, after x-ray of the evidence of the witnesses, have come to the conclusion that Pramod Kumar was a proclaimed offender; that information was received by the competent authority that he was hiding in the house of Chander Pal; that a team had gone to apprehend him; that SI Jaswinder Singh along with other members of the team waited at a distance of 100 yards and Maharaj State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 94 :
Singh went to the house of Chander Pal; that the accused was found on the verandah of the house and was asked to surrender but he immediately took out a knife from his shirt pocket; that before he could inflict a knife blow, he was overpowered by Maharaj Singh and there was a grapple between the two; and Maharaj Singh, receiving a bullet injury, fell down and eventually succumbed to the injuries in the hospital. It is not in dispute that Pramod Kumar has received some injuries, but that would not be a ground for discarding the prosecution version and acceptance of the plea of the defence. The evidence on record is required to be scrutinized and appreciated. The witnesses, namely, Baljit Singh, PW-6, Samar Singh, PW-8, Jaswinder Singh, PW-9, Rajbir Singh, PW-11 and Md. Iqbal, PW-16, who have been examined in support of the prosecution, have stood embedded in their version. The witness, Samar Singh, PW-8, has vividly described the occurrence and the graphic description has not been, in any manner, dented in spite of the roving cross- examination. It is apt to note that despite searching cross- examination, none of the witnesses has given way to any tergiversation. When their testimony has not been varied from any spectrum, there is no reason to discard them. Thus, the contention that there should have been examination of independent witnesses to corroborate the evidence of the police officials has to be treated as mercurial. Therefore, we unhesitatingly repel the said submission."
172. Similar view was expressed by the Apex Court in case titled Kashmiri Lal v State of Haryana, (2013) 6 SCC 595 and held that:
"9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 95 :
suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1990(3) R.C.R (Criminal) 585 : 1988 Supp SCC 686, State, Govt. of NCT of Delhi v.
Sunil and another, 2001(1) R.C.R.(Criminal) 56 : 2001(1) SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) R.C.R. (Criminal) 289 : 2006(13) SCC 229.
Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
173. From the testimony of these three witnesses, the recovery of I card of Shreya Sharma i.e. Ex.PW-36/Article 2 is proved and established. It is important to note that this recovery is effected on 17.08.17 itself i.e. immediately after the commission of offence. This circumstance not only point towards the guilt of the accused but at the same time is also consistent with any hypothesis of innocence of the accused.
Circumstance of Recovery of mobile phone.
174. Ld. APP further submitted that accused also led the police to the dividing road of Sector 16 and 17 leading from PCR chowk, G- 3, S Mall, Sector-11 Rohini there is a drain. There is also one small wall. After jumping over the wall accused took them to bushes and State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 96 :
from there he pointed out the mobile phone. The back cover of the mobile phone and battery were lying separately. Mobile phone was having IMEI no.867397021241190 and 867397024741190. There was a sim of airtel in the phone and memory card of Sandisk 2 GB. The battery was of white organge colour. All these articles were lifted from there, put in plastic container, sealed with the seal of AS and seized vide memo Ex.PW-36/D. These articles were also identified by the witnesses as Ex.PW-30/Article 2. The receipt of this mobile phone was handed over by PW-1 to the police. The original receipt is Ex.PW-1/E. The owner of Teerat Telecom Sh. Rakesh Kumar was examined as PW-18. He told that he sold this mobile phone to Lalita on 10.02.16. He also identified the signature of his employee Sachin Shrivastav on the bill Ex.PW-1/E. The IMEI number on the bill tallied with IMEI number of the phone recovered. Ld. APP submitted that this bill Ex.PW-1/E clearly shows that this mobile phone was purchased by Lalita. The testimony of PW-6 shows that her daughter was carrying this mobile phone with her at the time she left for tuition. The number in this mobile phone was 8826523695. According to the testimony of PW-23 Sh.Chander Shekher, Nodal Officer Bharti Airtel, this number was issued in the name of Yogesh Kumar son of Hari Ram i.e. father of the deceased and husband of PW-6. In the phone sim of airtel was found. On the sim no.8991101605078650724UH5 card was found printed which is also mentioned on the customer application form Ex.PW-23/A. The call detail record of this mobile phone shows that it remained active upto 3.44.15 hours and State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 97 :
thereafter no call was made or received from this number. It is pertinent to mention here that according to PW-6 when Shreya Sharma did not return home upto 8.15 PM, she made a call on this number, bell rang 2-3 times but she did not pick the call and when she again called, the mobile phone was switched off. It is important to note that when the mobile phone was recovered at that time also, the battery was lying separate from the mobile phone, this corroborates the testimony of PW-6 because the accused has removed the battery from the mobile phone and it went switched off. Ld. APP submitted that prosecution has examined PW-36 and PW-39 with respect to the recovery of mobile phone Ex.PW-30/Article 2. Both the witnesses have stood through the test of cross examination. The mobile phone has been identified from its IMEI number. Even the same IMEI number is mentioned in the call detail record Ex.PW-23/C of the mobile phone got recovered by the accused. Admittedly this phone does not belong to the accused and was never used by him. As per the evidence this phone was used by Shreya Sharma on that day. Otherwise it was being used by her grand mother. It is prayed that the prosecution by examining the PW-36 and PW-39 proved the recovery of mobile phone Ex.PW-36/Article 2 and by examining PW- 6, PW-18 and PW-23 proved that this mobile phone was used by Shreya Sharma on that date i.e. 16.08.17. Ld. APP submitted that this circumstance point towards the guilt of the accused and that is why he was able to get recovered the mobile phone which the deceased was carried on that day and at the same time in consistent State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 98 :
with any hypothesis of innocence of accused.
175. Ld. Defence counsel submitted that this mobile phone was not used by Shreya Sharma, in fact no evidence has been brought on record that Shreya Sharma was using this mobile phone. Ld. Counsel submitted that this mobile phone has been planted upon the accused in order to strengthen the prosecution case. Ld. Counsel submitted that in fact Shreya Sharma was using some other phone but that number has deliberately been with held by the prosecution and the witnesses particularly PW-1 and PW-6. Ld. Counsel further submitted that this recovery was effected from the open space by the side of the road near the drain accessible to all. Public persons were also present near by and moving on the road but no efforts what so ever have been made to join the public witnesses at the time of recovery. Ld. Counsel submitted that in fact no recovery was effected from that place and that is why no witness was joined. The onus which was on the prosecution has not been discharged. This phone used to remain at home. The actual mobile phone of Shreya Sharma has not been produced as that would have disclosed other facts inconsistent with story of prosecution. Ld. Counsel submitted that the onus was upon the prosecution to prove the recovery which the prosecution has failed, therefore the benefit be given to the accused and he be acquitted.
176. After hearing the arguments and going through the record, I found that in the present case in the statement of PW-1 itself proved on record as Ex.PW-1/A which was given initially, it is mentioned that State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 99 :
she was carrying mobile phone no.8826523695 and the call detail record Ex.PW-23/C shows that this number was used from the mobile phone having IMEI no.86739702124119 i.e. IMEI no.of mobile phone recovered at the instance of the accused. Even in the call made at 100 number prior to the registration of FIR PW-1 has told the number of the mobile phone carried by the deceased as 8826523695. The PCR form has been proved on record as Ex.PW- 38/A which proves this fact. DD no.5A was recorded in the PS KNK Marg and on the basis of call made at 100 number by PW-1 and in that DD also it is mentioned that she was carrying mobile phone no. 8826523695.
177. Keeping in view this documentary evidence even much prior to the registration of FIR or the complaint made by PW-1, it is clear that this mobile phone was being taken by the deceased. This mobile phone is in the name of Yogesh Kumar. The mobile phone was got recovered by the accused on 17.08.17. No doubt the recovery has been effected from a public place but it is not from the side of the road but from the bushes near the drain by the side of the road road after crossing a small wall. The mobile phone was also found in pieces i.e. the back cover was found separate. Battery was also taken out which was also found near by and the mobile phone with the sim and a memory card. The fact that battery has been taken out further corroborate the testimony of PW-6 where she stated that when she made a call on the mobile phone of Shreya Sharma, bell rang 2-3 times but she did not pick the call and when she again State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 100 :
made a call it was found switched off. The evidence shows that as the battery was taken out, therefore, it went switched off. There are two recovery witnesses and both of them stood through the test of cross examination. They are trust worthy and reliable. There is nothing on record to disbelieve them. The place from where it was clearly shows that it was within his special knowledge. This recovery stands established and it also points towards the guilt of the accused and he got in possession of mobile phone of Shreya Sharma and then thrown it there from where he got recovered. This circumstance is also in consistent with any hypothesis of innocence of accused. Circumstance of Recovery of Poem written by the deceased
178. Ld. APP submitted that on 19.08.17 accused led the police team to his house no.D-2/41,42,43 second floor, Sector-11, Rohini on that day it was found locked. They again went to the house on 20.08.17. This time the father of accused was at home. From the home, accused got recovered one poem written on two pages total 4 pages as written back to back which was lying on the top of the fridge lying in one corner of drawing room. The two witnesses PW-36 and PW-39 fully supported this recovery of the poem written by Shreya Sharma from the house of accused. Ld. APP submitted that it is the same poem which is referred in the instagram chat proved on record as Ex.PW-36/S. Accused is requesting deceased to bring that poem and give it to him and the last chat show that she is going to deliver poem to him. Ld. APP submitted that this recovery of hand written poem of the deceased again points towards the guilt of the accused State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 101 :
and that he was with the deceased in the last minutes and murdered her after taking the poem from her. Ld. APP submitted that both the witnesses examined PW-36 and PW-39 supported the prosecution case in this regard. Both have stood through the test of cross examination and also trust worthy. Ld. APP submitted that this recovery points towards the guilt of the accused and is also consistent with any hypothesis of innocence of the accused.
179. This poem was also sent to FSL for analysis and the opinion of Handwriting Expert is available on record as Ex.PW-29/A which clearly shows that the person who wrote the red enclosed writing stamped and marked A1 to A-20 i.e. the answer sheet written by Shreya Sharma which was assessed by the police from Jasmeen Kaur, the Charge examination examiner PW-16 also wrote the red enclosed writing similarly stamped and marked Q1 to Q4 i.e. the poem of Shreya Sharma. Even the parents of Shreya Sharma identified the handwriting of PW-1/F1 to F4 as of their daughter Shreya Sharma. Ld. APP submitted that these statements clearly proves that the poem which was got recovered by the accused and was seized vide memo Ex.PW-36/U is in the handwriting of the deceased. Ld.APP submitted that the onus which was on the prosecution has been discharged and recovery of poem of Shreya Sharma is established.
180. Ld. Defence counsel submitted that no such recovery has been effected from or at the instance of accused. He has been falsely implicated. The police has visited his house on 19.08.17 as deposed State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 102 :
by PW-36 as well as PW-39 but on that date, no recovery was effected and then they again visited the house on 20.08.17 and planted this poem and also recovered the mobile phone. Ld. Counsel submitted that admittedly father of accused was also at home but his signature has not been obtained on this document which again points towards the fact that it is concocted story and no such recovery was effected. Ld. Counsel submitted that no such poem was given by the deceased to the accused or taken by the accused from the deceased. It was taken by the police from the parents of the deceased and planted upon the accused. Ld. Counsel submitted that even otherwise this poem has no value for the deceased why he will keep this waste paper in his house. It is prayed that the onus which was on the prosecution is not discharged. No public witness has been joined. The circumstance is not proved. It is prayed that accused be acquitted.
181. After hearing the arguments and going through the record, I found that according to the instagram chat deceased has written one poem and she also told the accused that she had written this poem about the acts which he did to her and then the accused asked the deceased to give that poem to him. The chatting shows that deceased was taking this poem to hand over to the accused. It has been established on record that this poem is in the writing of deceased by the testimony of PW-1 and PW-6 as both identified that this poem Ex.PW-1/F-1 to F-4 is in the handwriting of Shreya Sharma and even the handwriting expert opined that this is written in the State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 103 :
handwriting of the same person, who has written the paper Ex.PW- 16/A. According to PW-16, this examination paper is in the hand writing of Shreya Sharma. All these facts clearly proves and establishes that it is in the handwriting of Shreya Sharma. The recovery of the same is from the house of the accused. No doubt it does not bear the signature of father of the accused but the witness has clarified that while this document was being prepared, the father of the accused has gone some where and that is why signature on this document could not be obtained. The two witnesses PW-36 and PW-39 are consistent, corroborated each other, have stood through the test of cross examination, reliable and trust worthy. Keeping in view their testimony, I am of the opinion that prosecution has been able to prove this circumstance which points towards the guilt of the accused and at the same time is in consistent with any hypothesis of innocence of the accused.
The Previous conduct of the accused and motive
182. Ld. PP submitted that as per the evidence produced from the school, Sarthak Kapoor was one year senior to Shreya Sharma.
Sarthak Kapoor passed out his 12 th class and Shreya reached the 12th standard. Sarthak Kapoor was having friend ship and relations with Shreya but due to some reason there was a break up between Shreya Sharma and Sarthak Kpoor. Sarthak Kapoor also gave beatings to Shreya Sharma in April 2017 outside her tuition centre. This fact is deposed by Ms. Kavita Dubey PW-13 as well as PW-1 and PW-6. The matter was also brought to the notice of the school State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 104 :
and to the parents of the accused. For some time every thing went smooth but thereafter accused again started harassing the deceased. Shreya Sharma told this fact to her father. Thereafter they again told PW-13 Kavita Dubey, but she told that everything is happening outside the school, therefore school can not help and they can take legal action. Ld. APP submitted that in fact he was a jilted lover, who could not tolerate even her talking with other class mates and that is why he called the mother of the deceased and told her that Vipranjal PW-11 is not a good boy and that she (Shreya) shall not talk with Vipranjal. Sarthak Kapoor was so much obsessed with Shreya Sharma that he even threatened Vipranjal PW-11 of dire consequences if he talked with Shreya Sharma. Vipranjal has been examined as PW-11, who supported this fact. He brought this to the knowledge of his father, who talked with Sarthak Kapoor on his mobile phone and scolded him. Ld. APP submitted that all these facts shows his previous conduct that he was having relations with Shreya Sharma and was not able to digest the factum of Shreya Sharma ignoring him and talking with other boys. Ld.APP submitted that in fact the instagram chats which has been proved on record as Ex.PW- 36/S shows that he was black mailing her in order to get her back as reflected in the instragram chat which was accessed on the mobile phone of PW-39 Inspector Anil Sharma by the accused himself on his account ID iamsarthakkapoor. These messages are from 13.08.17 to 16.08.17 that is recent chats just before the murder. There is also mention of something wrong done by him to her and he himself State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 105 :
mentioned in screen shot 70 that he did so only to get her back and he did not want that she meet any body and wanted to keep her with him only. Ld. APP further submitted that Shreya Sharma was terrified and repeatedly pleaded him (accused) to delete this recording of blowjob as mentioned in screen shot no.97. During this continuous mental harassment, she has written the poem "teenage nightmare" which again she has reflected in the chat that she has written this poem only with respect to the act done by the accused to her. The accused instead of objecting or denying the same asked for the copy of the poem and the last screen shot shows that she is going to deliver this poem to him. Ld. APP submitted that in this chatting itself he has also asked the deceased to hear the song "Mann Bharaya" by B. Praak and also asked her to concentrate on the lyrics and he requested her to listen the entire song. Ld. APP submitted that the CD of that song has been placed on record after down loading the same from U-tube. The CD Ex.PW-36/Article 1. The certificate under Sec.65 B of Evidence Act in this regard is proved as Ex.PW-40/A. The certificate under Sec.65 B of Evidence Act with respect to the taking of the screen shot of Instagram is Ex.PW-39/E which were seized vide memo Ex.PW-36/R. Ld. APP submitted that from this instagram chat it is clear that accused was black mailing and wanted her back. He never wanted her to talk with other boys or be friendly with any other person. He had also beaten Shreya Sharma outside her tuition centre in April 2017 then informed her mother about Vipranjual, threatened Vipranjal of dire consequences. Even when State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 106 :
she (Shreya) told him that she has written down a poem about what ever he did. He asked her to gave him that poem. By sending her the song "Mann Bharya" cleared his indication to murder her and send her a message that he would kill her which he eventually did. Ld. APP submitted that he murdered Shreya Sharma in the same manner as in the song "Mann Bharya" by preessing her neck with the wall with his elbow and she died. Ld. APP submitted that all this previous conduct clearly proves that he has the motive to kill Shreya Sharma as Shreya Sharma had broken up with Sarthak Kapoor. He wanted her back but she was not responding and finding no other way, he killed her.
183. Ld. Defence counsel submitted that the onus was upon the prosecution to prove and establish these facts which prosecution has miserably failed. Ld. Defence counsel submitted that in fact they were just school going colleagues. There was nothing special between them. They used to participate in the Zonal competition as deposed by DW-1 also and thus came together. So far as the incident of beating out side the Chemistry lab is concerned, that is a total false story which is testified by PW-11 herself, who deposed that when he called Shreya to inquire where she was beaten, she started weeping and said sorry. She told that she was not beaten outside the Chemistry lab but outside the tution centre. Ld. Defence counsel submitted that this itself shows that it is a concocted story. Ld. Counsel further submitted that no threat was extended to Vipranjal. It is again a concocted story. Vipranjan was classmate and friend of State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 107 :
deceased, therefore, telling lie in order to secure the conviction of the accused. Ld. Counsel submitted that Vipranjal and Shreya were good friends and have liking for each other and that is why he had concocted this story. Ld. Counsel submitted that father of Vipranjan never talked with Sarthak Kapoor and never extending any threat. He was also confronted with his statement where it was not found mentioned that he threatened Sarthak Kapoor.
184. Ld. Defence counsel further submitted that so far as instagram chatting is concerned, that is not proved. There is no evidence how it was accessed on which mobile phone it was accessed, on which date it was accessed and the certificate under Sec.65 B of Evidence Act is also not in accordance with the law. Ld. Counsel submitted that the prosecution has failed to prove and establish the access to the instagram chatting and thereafter taking print out of the same. In the absence of any such evidence instagram chatting could not be linked into. Ld. Counsel submitted that this chatting has been fabricated and is a result of concoction by the IO.
There is nothing on record that the investigation agency approached Instagram to have access to the chatting. Ld. Counsel submitted that in the absence of the same, no reliance on the same can be placed. Ld. Counsel submitted that there is nothing on record to prove that accused had any motive to kill Shreya Sharma. The onus was on the prosecution to prove the same. It is prayed that as the prosecution has failed to establish and prove the motive against him, he be acquitted.
State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 108 :
185. After hearing the arguments and going through the record, I found that so far as PW-1, PW-6 and PW-13 are concerned, they all stated that initially Shreya Sharma told them that she was beaten outside Chemistry lab in the school but when PW-13 inquired from her, she told that she was in fact beaten outside her tuition centre by accused. Under the circumstances, in my opinion the fact still remains the same that accused had beaten Shreya Sharma and he has also extended threat to Vipranjal and asked him not to talk with Shreya. This fact itself shows that he was so possessed and obsessed with Shreya Sharma that he could not with stand her talking with any other boy including her classmates. He also talked with mother of Shreya on telephone and told her that Vipranjal is not a good boy. All these facts clearly depicts his obsession with Shreya.
These are further clarified from the Instagram chat which discloses that he circulated or disclosed about the blow job and then he told Shreya that he had done that only to get her back and that he can not withstand her talking with other boys. This instagram chatting also shows that Shreya had written one poem teenage nightmare and he also clarified to the accused that she has written this poem only about what he (accused) did to her. During the chat accused did not deny this fact but he asked for that poem and the last screen shot shows that she was going to deliver that poem to her. In this chat accused has also sent her one song "Mann Bharya" sung by B Praak and he repeatedly insisted on her to listen to the complete song and also concentrate on the lyrics of the song. The CD of that song down State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 109 :
loaded from U-tube has been placed on record by the IO and was also played. In that song which is on the CD Ex.PW-36/Article 1, the person kills her girl friend after song. This clearly shows and depicts his motive and also what he is going to do and ultimately he did.
186. Keeping in view this entire conduct of the convict and his obsession with the deceased, in my opinion, prosecution has proved and established by examining these witnesses that he has a strong motive to eliminate Shreya Sharma. So far as the contention that there is nothing on record that how this instagram chat was accessed by the IO, I found that IO in his statement and also in the seizure memo Ex.PW-36/R specifically mentioned that accused himself accessed his instagram account ID iamsarthakkapoor from his mobile phone and got recovered total 328 screen shots of chat from dt.13.05.17 to 16.08.17 between his instragram ID iamsarthakkapoor and the instagram ID shrey0102. These screen shots were taken total 328 which were then transferred to laptop, then printed on 41 A-4 size pages, CD was also prepared. All these facts are again mentioned in the certificate under Sec.65 B of Evidence Act Ex.PW-39/E and witness during cross examination has also told that he at that time was using mobile phone make Samsung J-7 Prime on which accused locked on using his ID. Keeping in view all these details, I do not found any merit in the contention that this instagram chat can not be looked into. Accused has also not denied that he had not accessed the same except his bald statement of just denial.
State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 110 :
187. Keeping in view the above discussions, I found that prosecution has been able to prove and establish the motive of the accused.
188. In this case the post mortem on the dead body was conducted. The post mortem report is proved as Ex.PW15/A. Doctor after the post mortem opined that death was due to vaso-vagal syncope caused by pressure on the neck. Injury no.1,2 & 3 are ante mortem, fresh before death and could be caused due to blunt force.
The witness was cross examined by the Ld. Defence counsel and he suggested the doctor vaso-vagal syncope can be caused due to fainting heart and blood vessle disorder. The doctor agreed to that but stated that in this case natural causes are ruled out and the death is due to injury upon the neck which is the reason behind vaso-vagal syncope. Keeping in view the testimony of PW-15 is clear that it is a homicidal death and not natural death.
189. Ld. APP submitted that in this case prosecution has proved the circumstances i.e. the circumstance of last seen, recovery of dead body, recovery of bag and slippers of deceased, recovery of ID card, Mobile phone and handwritten poem of the deceased. Ld. APP submitted that prosecution has successfully proved the Motive of the accused in killing the deceased. The chain is complete. It is prayed that accused be held guilty. Ld.Addl. PP has also relied upon the judgment cited as Gorusu Nagaraju v State of Andhra Pradesh, AIR 2018 SC 1897 wherein the Apex Court has held:
"10. The High Court, in Para 5 of the impugned judgment, has taken note of the circumstances State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 111 :
that led to the death of the deceased and how the appellant was connected with the crime in question. The circumstances noticed are first, the deceased was last seen in the company of the appellant (A-1); Second, the appellant and the deceased, both went together to a liquor shop to purchase bottle of whisky; Third, recovery of the body from the heap of hay of PW-18 with bleeding injuries; Fourth, the appellant's fingerprints found on the Whisky bottle (McDowell) and glass and on other seized articles at the scene of occurrence by the Handwriting & Fingerprint Expert; Fifth, the recovery of all the seized articles was made at the instance of the appellant; Sixth, the appellant was having some grudge against the deceased because the appellant had requested the deceased to sort out some issues between him and PW-6 but the deceased failed to do so for some reasons; Seventh, the appellant failed to explain any of the circumstances noticed above and kept mum when asked to explain.
11. The prosecution with the aid of 33 witnesses proved the aforementioned seven circumstances. It is true that out of 33 witnesses, some turned hostile but those, who did not turn hostile and maintained consistent version of the aforementioned seven circumstances, in our opinion, their evidence was rightly relied on for sustaining the conviction.
12. That apart, in our considered opinion, the seven circumstances noticed and relied on by the prosecution were material circumstances and, therefore, rightly made basis to connect the appellant with the commission of the crime in question. Indeed, the chain of events which led to death of the deceased was established without any break implicating the appellant with the chain of events."
190. In view of the above discussions and it is clear that prosecution has been able to prove and establish all the circumstances. Circumstances are proved and established beyond doubt. The circumstance proved and established form a complete chain i.e. deceased was last seen in the company of accused near State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 112 :
the place of occurrence, recovery of bag containing articles of the deceased and the slippers of the deceased, recovery of I card of the deceased, recovery of mobile phone of deceased, recovery of poem and the previous conduct and motive which is reflected from the chatting and the other evidences. In my opinion that prosecution has been successfully established the guilt of the accused. I, therefore, hold accused guilty under Sec.302 IPC.
Let convict be heard on the quantum of sentence on 21.08.2018.
VIRENDER Digitally signed by
VIRENDER KUMAR
KUMAR BANSAL
Date: 2018.08.18
Announced in the open court BANSAL 14:17:50 +0530
today on 18.08.2018 (VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Sarthak Kapoor SC No:749/17 FIR No:349/17 : 113 :