Delhi District Court
State vs 1. Anil Kumar Sharma @ Sethi on 27 February, 2017
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.30/2011
Unique Case ID No.262/2016
FIR No.288/2010
U/S: 363/364-A/302/201/120-B/34 IPC
P.S: Vivek Vihar
State Versus 1. Anil Kumar Sharma @ Sethi
S/o Late Sh. Tulsi Ram Sharma
R/o A-87, Gali No.7B, Prem Nagar
Karawal Nagar, Delhi
2. Manish Sharma @ Pappan
S/o Sh. Raghunandan
R/o A-186, Gali No.3, Rama Garden
Karawal Nagar, Delhi
Date of Institution : 28.03.2011
Date of Arguments : 06.01.2017
Date of Judgment : 04.02.2017.
JUDGMENT
Case of Prosecution
1. Criminal justice machinery was set into motion on 16.12.10 when complainant Dharam, son of Garib Dass went to Vivek Vihar FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 1 of 45 Police Station to register an FIR regarding missing of his son namely Vikas of age about 14 years. His son was missing from around 6.00 pm of 15th December 2010. Investigation was assigned to SI Amarjeet Singh who sent information regarding kidnapping of the child to all concerned departments, All India WT Message was also got flashed, Hue and Cry Notices were pasted and searches were made along with family members but all in vain.
2. On 24.12.10 complainant informed the police that he received two ransom calls, i.e. on 23.12.10 and 24.12.10, on his mobile phone No.9312894771. On verification the phones were found to be of PCOs situated in Ghaziabad in Loni but no clue regarding the caller was found. On 29.12.10 complainant again received ransom calls from different phone numbers asking him to come to Behta Pipeline, Loni with Rs.10 lacs for safe release of his son. The mobile phone of complainant was put on interception and its parallel line was taken on mobile phone No. 9716389553 of SI Amarjeet Singh. On 31.12.2010 complainant got six ransom calls on his mobile by the phone No.9953202208. On the analysis of these calls by SI Vinay Yadav of Special Cell, it was concluded that suspect is accused Manish Sharma. Accused Manish Sharma was apprehended and on his pointing out accused Anil Sharma @ Sethi and JCL 'N' (name withheld)were also apprehended.
3. Accused persons during investigation disclosed that in order to make quick money, they planned to commit offence. Pursuant to which on the evening of 15.12.10, accused Anil Kumar Sharma kidnapped Vikas and took him on his motorcycle towards his house. Near his house, he handed over the boy to Manish and thereafter all of FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 2 of 45 them killed the boy by throttling and smothering. Thereafter, they took the body of Vikas in the BSES Transformer room just next to the house of accused Anil Sharma and burnt the body on the floor of the room with the help of petrol and transformer oil and thereafter buried the remains. All the ransom calls were made by accused post murder of the victim. After disclosure of all the accused, they got recovered the dead body remains of the son of complainant from the transformer room of BSES. Mobile phone, SIMs including SIM of Vodafone No.9953202208 used for ransom were recovered from the possession of accused persons. Voice samples of accused and DNA sample from the remains of dead body and blood samples of parents of victim were taken. Further investigation was carried out. Chargesheet was prepared and filed before the Court.
On appearance the copies of chargesheet in compliance of section 207 Cr.P.C. were supplied. As offence punishable u/s 302 IPC is triable by Court of Session, Ld. MM committed the case to court of Session for trial.
Charge framed against the accused persons
4. Prima facie case u/s 363/364-A/302/201/120-B/34 IPC was made out against the accused persons, accordingly charge was framed by my Ld. Predecessor vide order dated 04.07.2011 to which they pleaded not guilty and claimed trial.
Witnesses examined FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 3 of 45
5. In support of its case, prosecution has examined 27 witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under;
Material witnesses
6. PW-1 Sh. Dharam Singh. He is father of the deceased child Vikas. PW-1 deposed that he had three children, two daughters and younger to them was son named Vikas aged about 14 years. On 15.12.10, it was very cold and at about 6.30 pm when he was going to market to purchase Besan, Vikas was playing in the nearby park. Thereafter, he brought Vikas back to the house but Vikas insisted to go to the park to bring his ball back which he had left there. At 7.30 pm, PW-1 noticed that Vikas had not returned to house. He searched for him in the colony, bus stand and station but failed to find him. At about 10.00/10.30 pm he went to police station and police asked him to search Vikas. He kept on waiting in the police station and at about 12.00 midnight, SHO came to the police station and asked him if he had suspicion on anyone. PW-1 told SHO that he does not have suspicion on anyone on which SHO directed the staff to lodge the FIR and called him in the morning.
7. PW-1 further deposed that after about a week, at about 11 am/12 noon he received a call on his mobile phone No.9312894771. Caller told him that Vikas was in their custody and further demanded ransom of Rs.15 lacs. He further asked him to come to Behta Pipeline Loni with the amount to take his child from there. After 3 - 4 days, PW-1 received another call. The caller demanded ransom of Rs.15 lacs on FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 4 of 45 which he told the caller that he did not have so much money to pay and requested him to talk to his son however, the caller refused and further asked him to come with the ransom money at Behta Pipeline, Loni. PW-1 along with police officials went to Behta Pipeline, Loni and stayed there for about 20 - 25 minutes and when they had just left Behta Pipeline, Loni, he again received a call asking him that why he had not come at that place at 4.00 pm. Next day PW-1 again received a call wherein the caller asked him why he had come to Behta Pipeline, Loni, with police. Two police officials who were stationed at his house for last 3 - 4 days asked him not to pick the phone again and that his wife would talk to the kidnappers. Again a call was received and his wife attended the call and as asked by the police, his wife talked continuously with the kidnappers. The caller started abusing his wife. On the evening of 30.12.10, they went to Vijay Nagar, there again a call came and his wife attended the call. The caller told his wife that he wants that Vikas should come to them in New year and asked her to pay ransom and take away Vikas. On the intervening night of 30/31.12.10 at about 4.00 am, he received a call of Satish Ahuja, who is known to him that SHO informed that his son has been killed at Karawal Nagar and kidnappers had been apprehended. PW-1 deposed that accused Anil Sharma was known to him prior to the incident by the name Sethi as he used to run a kiryana shop near his house and they used to purchase kiryana from him. Accused Anil Kumar Sharma @ Sethi often used to visit their house even after shifting to Karawal Nagar. As per PW-1, his son used to do the role of Hanuman in Ramleela and accused Sethi also used to play some role in Ramleela, due to this his son called Sethi as Uncleji and used to touch his feet in respect. PW-1 deposed that he handed over two locks to the police. One lock was of the room and other was of the FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 5 of 45 cycle and the keys of both these locks used to remain with his son Vikas. After Vikas was kidnapped, the lock of the room was broken and the lock of the cycle was opened by the vendor who prepares duplicate keys. PW-1 identified his mobile phone of Reliance as well as locks as Ex.P-1 & Ex.P-2.
8. In his cross examination PW-1 confirmed that accused Anil was his friend and that two brothers of the accused live in their street. He confirmed that dead body of his son was not recovered in his presence and the caller kept on demanding Rs.15 lacs for returning his son. PW-1 further confirmed that he did not receive any ransom call after discovery of the dead body. He confirmed in his further examination u/s 311 Cr.P.C. that he gave the date as the intervening night of 30/31.12.10 at 4.00 am out of tension and confusion because of death of his son and in fact Satish Ahuja gave information to him regarding his son having been killed and about the information of the kidnappers in the morning of 01.01.2011.
9. PW-2 Sh. Ayush Jain:- He deposed that prior to March 2011, he was running a mobile shop with the name of Jain Computer and Mobile Solutions at Raghuvar Pura, Delhi. Accused Manish used to come to his shop for last two months to recharge his mobile. PW-2 deposed that in December Manish had come to him to purchase a new SIM. He demanded ID proof from him to give a new SIM but Manish told him that he will give the ID proof in the evening as his mother is ill and on this assurance he gave the new SIM of Vodafone to him but thereafter he did not come to his shop and did not give ID proof. PW-2 deposed that immediately after handing over the same, he had put FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 6 of 45 request to the company for activating it. In his cross examination by Ld. Defence Counsel for accused Manish Sharma, PW-2 deposed that he has no proof to show that he had sold the SIM to accused Manish. To a specific question as put by Ld. Defence Counsel, PW-2 deposed that he had not sold any old SIM prior to this SIM and denied the suggestion that accused Manish did not purchase any SIM from him.
10. PW-6 Dr. Shreenivas M Associate Professor, MAMC, Delhi:- He deposed that on 04.01.2011 Medical Board was constituted comprising himself as a Chairman and Dr. Vijay Dhankar Junior Specialist , Dr. Baba Saheb Ambedkar Hospital and Dr. J.V. Kiran Kumar Sr. Resident, Sanjay Gandhi Memorial Hospital as members for conducting the postmortem of dead body of deceased Vikas S/o sh. Dharam Singh. The postmortem was conducted on 06.01.2011 at Mortuary, MAMC. After conducting the postmortem they opined the cause of death - "the body was in advance state of putrefaction and due to putrefaction and liquefaction of the relevant structure it has not been possible to make any definite comment regarding presence of injuries, as would be caused by smothering and strangulation. However, the possibility that death has occurred as a result of smothering and strangulation cannot be ruled out". There are findings consistent with burning of the body also. Probable time of death was about 22 days. Samples were sealed with the seal of hospital and handed over to the IO with PM report and inquest papers. He proved his report as Ex.PW6/A. In his cross examination he deposed that weight of body was not measured as consolidated soil was present all around the body parts.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 7 of 4511. PW-8 Sh. Mohan Lal:- He is brother-in-law of deceased Vikas. PW-8 deposed that on 01.01.2011 he was present at his in-laws house. A phone call was received from the police station and police gave them an address and asked to reach at that address in Karawal Nagar. PW-8 deposed that he along with his brother-in-law (Sadu) Sachin and Praveen i.e. cousin of his wife reached at the address given by the police in Karawal Nagar. Police officials were already present there. They had already apprehended three persons. There was a transformer room and there was a pit surrounding the wall of the room. A burnt headless dead body was lying in that pit. The body was covered with badarpur, stones and bricks. The head of the body was in burnt condition and was lying separately in the pit. The right hand and palm of the right foot of the body were not in burnt condition and he identified the body on the basis of the hand to be that of Vikas. As per PW-8 the body was brought out from the pit and was photographed and then kept in a white colour bag and was seized vide memo Ex.PW8/A. PW-8 identified accused Anil and Manish, two of the three who were with the police at the spot. PW-8 deposed that on 02.01.2011 he again joined the investigation and he along with police officials, accused persons and JCL 'N' went to Karawal Nagar. First of all they reached at the house of accused Anil which was situated just near Transformer room from where the dead body was recovered. PW-8 deposed that on the pointing out of accused Anil a motorcycle make Hero Honda (Passion) and from a room of his house, accused Anil got recovered a mobile phone and SIM which were seized by the police vide memo Ex.PW8/C. As per PW-8 thereafter they went to the house of accused Manish which was situated in another gali from where accused Manish got recovered a mobile phone from a pant which was hanging on a hook in the room. The said FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 8 of 45 mobile phone was seized vide memo Ex.PW8/D and thereafter they went to the house of JCL (N) who also got recovered a mobile phone which was lying over the almirah and was seized vide memo Ex.PW8/E. This witness identified the case property as Ex.P-5 to Ex.P-8. In his cross examination by Ld. Addl. PP for State, this witness confirmed that from the place where they met police at Karawal Nagar, accused persons and JCL 'N' led them to Transformer room and got recovered the dead body of Vikas. In his cross examination he confirmed that he reached at the place where the body was lying between 7.00 - 7.30 am and that accused Anil was known to him prior to the occurrence as he used to meet his father-in-law and he came to know the names of the other two co-accused at the spot. He further confirmed that he received a phone call on 01.01.2011 from police at about 6.00 - 6.30 am and he reached at spot at about 7.00 am.
12. PW-9 Sh. Ved Singh:- He deposed that he is running a tailoring shop by the name of Saurabh Tailors at A-4, Jhilmil Colony. PW-9 identified accused Anil Sharma as the resident of D-126, Jhilmil Colony and residing there since his childhood. PW-9 deposed that accused Anil was friend of Dharam Singh, father of the deceased Vikas. As per PW-9, deceased Vikas used to perform the role of Hanuman in Ramleela and accused Anil also used to act in Ramleela. He further deposed that accused Anil had also taught the deceased to drive motorcycle as the former owned one. In his cross examination this witness confirmed that accused Anil is known to him since childhood. He further confirmed that accused Anil sold out the house in Jhilmil colony about 4 - 5 years ago but one of his brothers is still residing there and accused was on daily visiting terms at his house.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 9 of 4513. PW-10 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd.:- He produced call detail record of mobile phone No.9891404776 for the period between 15.12.10 to 31.12.10 along with certificate u/s 65- B of Indian Evidence Act. He deposed that the said number was allotted in the name of Raghunandan (father of accused Manish Sharma). He exhibited copy of Customer Application Form (CAF) and copy of identification document i.e. Election I-card Ex.PW10/B (collectively). Copy of call detail record of said SIM number for the aforesaid period as Ex.PW10/C and certificate u/s 65-B of Indian Evidence Act as Ex.PW10/E. He further proved the CDR of mobile phone No.8527170744 as Ex.PW10/A. This witness was recalled for re- examination on an application as filed on behalf of State u/s 311 Cr.P.C and he brought the summoned record of Mobile No.8750116038. He deposed that as per record of their company this mobile phone was subscribed to Sh. Manish Sharma S/o Sh. R.N. Sharma, R/o Gali No.3, Rama Garden, Karawal Nagar, Delhi. He exhibited the copy of Customer Application Form (CAF) as Ex.PW10/F and proof of ID i.e. DL of subscriber as Ex.PW10/G. As this witness was summoned u/s 311 Cr.P.C. on 07.11.2016, he deposed that CDR of the said SIM pertains to year 2010 and thus could not be retrieved. Ld. Defence Counsel objected regarding Ex.PW10/F and Ex.PW10/G as copy of this document was not on record, however photocopies were supplied to Ld. Defence Counsels on the same day. Objection was thus overruled.
14. PW-11 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service Ltd.:- He produced call detail record of SIM of mobile phone No.9953202208 for the period from 01.12.2010 to 05.01.2011. He deposed that the said number was issued in the name of Anjum Alam.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 10 of 45He proved the copy of call detail record of the aforesaid number as Ex.PW11/A & D, copy of Customer Application Form (CAF) and copy of identification document i.e. voter I - Card as Ex.PW11/B (collectively) and certificate u/s 65-B of Indian Evidence Act as Ex.PW11/C. In his cross examination he deposed that SIM was issued on 10.11.2010 as per CAF.
15. PW-12 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd.:-
He produced call detail record of mobile phone bearing No.8527170744 for the period 15.12.10 to 01.01.2011. He deposed that the said number was issued in the name of Anil. He exhibited the copy of call detail record as Ex.PW12/E, copy of Customer Application Form and Voter I-Card as Ex.PW12/F (collectively), Certificate u/s 65-B of Indian Evidence Act as Ex.PW12/C and Cell ID Chart as Ex.PW12/D. CDR of this phone No.8527170744 is also proved by PW-10 as Ex.PW10/A. In his cross examination he confirmed that the signatures of Anil Sharma were not put in his presence and denied the suggestion that he did not know about CAF.
16. PW-13 Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd.:-
He produced the call detail record of mobile phone no.8802540398 for the period 08.12.2010 to 31.12.2010 along with certificate u/s 65-B of the Indian Evidence Act. He deposed that said number was issued in the name of Dhararmveer. He exhibited call detail record of the said SIM number for the aforesaid period as Ex.PW13/A, copy of Customer Application Form (CAF) and Voter I-card as Ex.PW13/B (collectively). Certificate u/s 65 of the Indian Evidence Act as Ex.PW13/C. In his cross FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 11 of 45 examination he confirmed that the call details are not certified by the FSL or CFSL.
17. PW-14 ASI Desh Raj:- He was posted on 01.01.2011 at PS Vivek Vihar and joined the investigation along with Inspector Yogesh Malhotra, SI Amarjeet and Ct. Vikrant. PW-14 deposed that a joint raiding party was organized comprising of the staff of PS Vivek Vihar and Special Staff and it was decided that the raiding party would raid the house of Manish. The house of accused Manish was raided. He was apprehended. As per PW-14 accused Manish then took the police team at Gali No.7B, Prem Nagar, Karawal Nagar at the house of co-accused Anil @ Sethi and thereafter, both the aforesaid accused took them to the house of 'N' (JCL) at Gali No.4, Amar Vihar, Karawal Nagar. PW-14 further deposed that they were separately interrogated and on interrogation they gave disclosure statements Ex.PW14/A to Ex.PW14/C. He further deposed that accused were arrested and in their disclosure statement they disclosed that they had cremated the body of Vikas in BSES Sub Station after burning the same which is near the house of accused Anil. As per PW-14, Mohan Lal son-in-law of complainant came at the spot and he joined the investigation and both the accused alongwith JCL took them at BSES sub station. PW-14 further deposed that head of the body in a skeleton condition was found in the trench in front of the gate and on the right side trench the rest of the skeleton of the body in a rotten and burnt condition was found dug under the badarpur, sand, rori and bricks. The skeleton was dug out. Same was seized vide memo Ex.PW8/A. He further deposed that recovery of the body and the seizure of sand and piece of earth was got videographed by the IO. PW-14 deposed that on 02.01.2011 he again FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 12 of 45 joined the investigation along with Inspector Yogesh Malhotra, SI Amarjeet and accused Anil got recovered the motorcycle bearing No.DL1SD 5726 Passion Pro Hero Honda red and black colour used in the commission of crime from the courtyard of his house and also got recovered a Chinese mobile phone of double SIM which was lying under the mattress of the bed lying in the room. PW-14 further deposed that Anil also produced a SIM of Vodafone 9953202208 which was purchased by accused Manish from Gandhi Nagar on 31.12.10 and from which ransom call was made to Dharam Singh. The said SIM was seized vide memo Ex.PW8/C. As per PW-14, accused Manish then took them at his house at Gali No.3, Ram Nagar, Karawal Nagar and got recovered a Chinese mobile phone of double SIM having SIM from the pocket of the pant hanging in the first room on the entrance. Same was also seized vide memo Ex.PW8/D. As per PW-14 accused JCL (N) took them at his house No.A-19/1, Gali No.4, Amar Vihar, Karawal Nagar from where he got recovered a Chinese mobile of double SIM which was lying above the almirah in the room and the same was seized vide memo Ex.PW8/E. PW-14 identified the case property as Ex.P-5 to Ex.P-
9. In his cross examination PW-14 deposed that they started for raid at about 1.00 am in government gypsy and no public witness was present because of night time but only two vehicles were passing. PW-14 deposed that they parked their vehicles outside the gali and then went to the house of Manish on foot who was sleeping in the room at ground floor. Thereafter, they went to the house of co-accused Anil on foot leaving behind the vehicle. He deposed that it took about 1 - 1 1/2 hour in interrogating and arresting accused and preparing the documents and no official of BSES was present at the sub-station. To a specific question this witness deposed that the assistance of two private persons was FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 13 of 45 taken to help them in bringing out the skeleton who were not known to the IO. He further confirmed that the sub-station of BSES and the house of accused Anil were having common wall and the sub-station was situated at the West side of house of accused Anil. In his cross examination by Ld. Defence Counsel for accused Manish, this witness deposed that disclosure statement of accused Manish was recorded by SI Amarjeet at Gali No.7 and that the head was lying at a distance of 4 - 5 meters from the rest of skeleton. He further confirmed that IO made departure entry before they left the PS but he cannot tell the number of that DD entry.
18. PW-22 SI Vinay Yadav, Special Staff, East District:- He deposed that on 31.12.2010, he was posted as Sub Inspector, Special Staff, East District and on that day at about 1.30 - 2.00 pm he was informed by SI Amarjeet that ransom calls were being received from mobile phone No.9953202208. It was a Vodafone number. PW-22 deposed that on the direction of senior police officers and on request of IO, he collected the call detail record of the aforesaid number and on scrutiny of the call details, it was found that calls were made from this mobile number to the mobile of the complainant, whose number was of Reliance Company. The IMEI number of the aforesaid mobile phone was given to service providers and it was found that some other number of the Idea was activated on the said phone about 20 days ago. PW-22 deposed that call details of the said number was collected and that analysis of Idea number it was found that the the said number was in frequent contact with the mobile No. 9891404776. PW-22 further deposed that on further analysis he found that there was a difference of last digit in the IMEI number in the mobile phone from which the ransom FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 14 of 45 call was made i.e. 9953202208 and the mobile phone No.9891404776 . On checking from the Internet site PW-22 SI Vinay Yadav found that the model number of the mobile phone of both the aforesaid IMEI numbers was the same i.e. GILD - 7700 and therefore, it could be double SIM mobile phone number and he analyzed all the aforesaid three numbers and handed over the call details and Customer Application Form to the IO.
19. PW-23 Inspector Yogesh Malhotra:- He is the Investigation Officer, who narrated various steps taken during investigation. PW-23 deposed that on 29.12 2010 complainant Dharam Singh came at PS and told him that he had received two ransom calls on that day demanding Rs.15 lacs and asked him to come at Behta Pipeline, Loni at 4.00 pm. PW-23 deposed that he went to DCP office for making enquiry about the permission to intercept the calls and on 30.12.2010 they started intercepting the calls made on the phone of the complainant through SI Amarjeet Singh who had recording facility on his mobile phone. PW-23 deposed that on 31.12.10 on the phone of complainant six ransom calls were received, made from the phone of No.9953202208 demanding Rs.10 lacs. All the ransom calls were recorded by SI Amarjeet Singh in his mobile phone. SI Vinay Yadav of Special Staff was asked to analyzed the CDRs of the callers. PW-23 deposed that SI Vinay Yadav after analyzing the CDRs told that suspect is Manish who lives in A-186, Gali No.3, Rama Garden, Karawal Nagar.
20. PW-23 further deposed that on 01.01.2011 at about 3.00 am he constituted a raiding party and conducted the raid at the house of accused Manish. He was apprehended and interrogated. PW-23 FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 15 of 45 deposed that accused Manish disclosed that accused Anil Sharma had brought the victim and that the child was with him. Thereafter, accused Manish took them to the house of co-accused Anil Sharma. On interrogation accused Anil Sharma disclosed that the child was with JCL. Both the accused then took them at the house of JCL 'N' but the child could not be recovered. As per PW-23, thereafter they returned at Gali No.7 along with all the three accused who were separately interrogated and they gave disclosure statements Ex.PW14/A to Ex.PW14/C pursuant to which they got recovered the body of the child from BSES sub-station. PW-23 deposed regarding recovery of mobile phone and SIMs from the house of accused and proved those memos prepared at the spot. In his cross examination he confirmed that signatures of the family members of the accused were taken on the arrest memo. To a specific question, PW-23 deposed that he tried to join the neighbourers in the investigation by knocking their doors but as it was very chilly cold night and none agreed to join the investigation. To a specific question PW-23 deposed that he does not remember the date when the complainant informed that victim used to keep the key of his room and the cycle in the key chain with himself. However, clarified that complainant was called to police station during the course of investigation and during those proceedings he told about the recovery of bunch of keys. PW-23 further confirmed that the CD contained a live video coverage of the skeleton with part flesh. To a specific question he further deposed that he does not know if the gate of the sub-station remains open and volunteered deposed that it was not locked when they went there. He further confirmed that the place where the body was buried is not accessible to general public and that he did not examine any BSES official.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 16 of 4521. PW-24 Dr. C.P. Singh, Assistant Director (Physics), FSL, Rohini:- He deposed that on 11.01.2011 he received three cloth parcels and one plastic container in sealed condition with specimen seal which were received by him for examination. After breaking the seal, Parcel No.1 was found containing two audio cassettes, parcel No.2 was found containing one memory card, parcel No.3 was containing three keys and parcel No.4 was containing one lock. PW-24 deposed that he examined the exhibits and prepared his report i.e. Ex.PW23/PX3-4. In his cross examination by Ld. Counsel of accused Manish, PW-24 deposed that there is no possibility to commit any error by computerized speech lab.
22. PW-25 Sh. A.K. Shrivastava, Deputy Director (Biology), DNA Unit, FSL, Rohini, Delhi:- He deposed that on 11.01.2011 he received two parcels sealed with the seal of MAMCSM. Parcel No.2 was one small plastic container contained one small piece of jaw which teeth said to be jaw bone of deceased. He deposed that blood sample of Sh. Dharam and Smt. Rani were taken on the same day i.e. on 11.01.2011 in his presence in the DNA Unit, FSL Delhi. He further deposed that on conclusion it was found that DNA profile (STR analysis) performed on the exhibits provided is sufficient to conclude that the source of Exb.3 (blood sample of Sh. Dharam) and alleles of source of Exbt.4 (blood sample of Smt. Rani) is biological father and mother of source of Exbt.2 (jaw bone of deceased) and proved his detailed report as Ex.PW23/PX1-
2.
23. PW-26 SI Amarjeet Singh: Investigation was entrusted to him on 16.12.2012 and he got issued WT messages and hue and cry notice. He deposed that on 18.12.2010 the investigation of the case FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 17 of 45 was entrusted to Inspector Yogesh Malhotra and on 22.10.2010 the case was again marked to him for investigation as Inspector Yogesh Malhotra was proceeded on leave. This witness deposed that the phone No.9312894771 of Dharam Singh was put on interception and its parallel line was taken on his mobile No.9716389553. He deposed that on 31.12.2010 he recorded six ransom calls received on the phone number of Dharam Singh on his mobile phone on which he had taken the parallel line. PW-26 also joined the investigation regarding the arrest, recovery of dead body and SIM and mobile phones from the possession of accused persons as a witness and proved the various memos bearing his signatures and identified the case property. In his cross examination he confirmed that he did not record the statement of the owner of the STD booth but interrogated him and mentioned this fact in the case diary. He further confirmed that the BSES sub-station is situated in a residential area. The public persons and neighbourers were requested to join the investigation but they refused. In his cross examination on behalf of accused Manish he deposed that it was dark inside the BSES sub- station when they reached there but there was mercury light outside in the street and they waited till 6.00 - 7.00 am for the light to improve. In his cross examination on behalf of accused Anil Sharma this witness confirmed that at about 4.00 am, he along with accused made first time entry in the room from where the dead body was recovered and at that time he was not accompanied with either photographers or videographers. The Videographer and photographer had reached the spot at about 6.00 am. He further confirmed that when they entered the said BSES room for the first time i.e. at about 4.00 am, it was found closed from outside with the help of the latch (kundi). He further confirmed that first ransom call dated 23.12.10 was made from a private FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 18 of 45 PCO at Ghaziabad and he had made eqnuiry from the PCR owner and mentioned this fact in the case diary.
24. PW-27 Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd.:- He produced call detail record of mobile No.9213232528. This witness was also summoned u/s 311 Cr.P.C on an application as filed on behalf of State. This witness deposed that as per direction on checking the e-mail record, there was an e mail sent to the Investigating Agency regarding to present case through official mail ID and the print of same was proved as Ex.PW27/A. He further deposed that the aforesaid number was subscribed, Mr. Raghunandan Sharma, A-186, Gali No.3, Rama Garden, Karawal Nagar. PW-27 also exhibited the certificate u/s 65-B of the Indian Evidence Act regarding CDR as Ex.PW27/C while deposing that this certificate has been issued by him as the aforesaid CDR was retrieved from the official mail ID and the record of CDR is true and correct. In his cross examination he confirmed that server of Tata Tele Services is not situated in Delhi and volunteered deposed that it is in Hyderabad and confirmed that he does not have any control over the server.
Formal Witnesses
25. PW-3 HC Jai Bhagwan:- He was posted as Duty officer at PS Vivek Vihar on 15/16.12.2010 from 12.00 am to 8.00 am. PW-3 recorded DD No.6A & FIR of present case on the statement of complainant regarding missing of his son. The said DD is proved as Ex.PW3/A and FIR as Ex.PW3/B. FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 19 of 45
26. PW-4 Sh. Praveen Kumar:- He is the uncle of deceased Vikas who deposed that on 01.01.2011 he had gone to Karawal Nagar and there he saw a dead body having only one arm and leg with flesh and the remaining body was reduced to skeleton and after seeing the dead body he identified it to be of Vikas vide memo Ex.PW4/A. In his cross examination by Ld. Counsel for accused Manish PW-4 deposed that the face of dead body and other parts except arm and leg were fully decomposed. PW-4 denied the suggestion that the dead body was not identified as it was completely decomposed or that he identified it as of Vikas at the instance of IO.
27. PW-5 Sh. Mahender:- He deposed that he does the work of stitching on pavement. On 07.01.2011, he was taken to FSL Rohini where the police got the voice recordings of accused Manish and one JCL and got prepared the cassettes and seized the same vide memo Ex.PW5/A. PW-5 identified the signatures on both the cassettes i.e. Ex.P-3 & P-4. In his cross examination PW-5 confirmed that he was informed by a police man that he was to be taken to FSL. He further confirmed that they went to FSL via Metro and alighted at Rohini Station and that accused Manish and JCL 'N' had gone with them.
28. PW-7 SI Mukesh Jain:- Draftsman, who deposed that at the instance of Inspector Yogesh Malhotra he took rough notes and measurements on the basis of which he prepared scaled site plan Ex.PW7/A.
29. PW-15 Cr. Narender:- He took the body of Vikas to Subji Mandi Mortuary and got the same preserved. PW-15 deposed that on FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 20 of 45 01.01.2011 he was posted as constable and was called by the IO/Inspector Yogesh Mahotra at Gali No.7B, Prem Nagar, Karawal Nagar where on the pointing out of both the accused, body of Vikas was recovered from the room of the transformer. PW-15 further deposed that after postmortem the doctor handed over the sealed pullandas to him which were seized vide memo Ex.PW15/A and he deposited the said pullandas in the malkhana. In his cross examination he deposed that he cannot tell the time when he received the telephone call but it was early morning time before 5.00 am.
30. PW-16 Sh. Sushil Kumar:- He was also taken to Rohini when the voice samples of accused Manish and JCL 'N' were taken. PW-16 deposed that he runs a fruit theli and that voice samples of accused Manish and one another JCL 'N' were recorded in four audio Cassettes and his signatures along with one another public witness namely Mahender were taken on all the four cassettes. He also identified the cassettes as Ex.P-3 to Ex.P-6.
31. PW-17 Ct. Jagbir Singh:- He was posted as photographer in mobile crime team. He deposed that at the instance of IO he took 19 photographs i.e. Ex.PW17/A-1 to Ex.PW17/A-19 and their negatives as Ex.PW17/A-22 to Ex.PW17/A-38. In his cross examination he confirmed that he reached at the spot at about 6.00 am on 01.01.2011. To a specific question he deposed that the depth of the pit was about two and a half feet
32. PW-18 Ct. Ravi Dutt:- He took sealed pullandas from malkhana and deposited the same in FSL Rohini. After depositing the FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 21 of 45 pullandas in FSL Rohini he deposited the copy of receipts in the malkhana and deposed that so long as the pullandas remained in his custody, same were not tampered with or interfered by anybody.
33. PW-19 Ct. Yudhbir Singh:- He deposed that on 01.01.2011 he was posted as Head Constable at police station Vivek Vihar and on that day Inspector Yogesh Malhotra deposited two pullandas bearing the seal of YM in the malkhana and he made entry in register No.19 and proved the copy of same as Ex.PW19/A. PW-19 further deposed regarding the deposit of case property in malkhana during investigation and proved various memos in this regard as Ex.PW19/B to Ex.PW19/F. PW-19 further deposed that on 11.01.2011 exhibits were sent to FSL Rohini through Ct. Ravi Dutt and receipts were deposited with him. He made entries in this regard i.e. Ex.PW19/G to Ex.PW19/I.
34. PW-20 Ct. Sube Singh:- He deposed that on 01.01.2011 he was posted in East District Line, Photo Section and on that day duty officer sent him to 7 - B, Prem Nagar, Karawal Nagar for videography. The body of a child was being extracted from a pit in the BSES transformer room. He did videography of the same and handed over the CD to IO. PW-20 deposed that CD Ex.PW20/A is genuine and same is not tampered with. In his cross examination, PW-20 deposed that he reached at the spot at about 6.45 am and about 8 - 10 police officials were present at the spot. To a specific question this witness deposed that he does not know trick photography and denied the suggestion that he did not make the videography or tampered the CD at the instance of IO.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 22 of 4535. PW-21 Ct. Deepak Rathi:- He deposed that he is working as record keeper in the office of DCP, East and brought the permission to intercept the calls. PW-21 deposed that permission order for seven days u/s 419A of Telegraph Act was issued by Sh. P.N. Aggarwal, Special Commissioner of Police, Special Cell and proved the copy of same as Ex.PW21/A. He further proved the permission for interception of telephone calls for a period of 60 days by Principal Secretary Home as Ex.PW21/B. PW-21 deposed that the order Ex.PW21/B was sent to the Nodal Officer with the forwarding letter Ex.PW21/C and that the record is genuine and not tampered with. His testimony remained unrebutted Statement and Defence of Accused persons
36. The statement of both the accused were recorded u/s 313 Cr.P.C. and the incriminating circumstances were put to both the accused to record their explanation to the same. They simply denied the allegation and pleaded false implication by the police. Accused Anil Kumar Sharma stated that he was attending marriage ceremony of his brother-in-law (saala) namely Kishan at Shiv Vihar on 15.12.2010 and remained in the said function till 16.12.2010 along with his family and thus claimed his involvement in the present case as false. He further claimed that sub- station of BSES where the prosecution has shown that deceased was killed and burnt or recovery of dead body was affected, 3 - 5 persons/employees of BSES always remained present in the said sub- station therefore, alleged story of prosecution is false and fabricated. Whereas accused Manish Sharma stated that he has been falsely FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 23 of 45 implicated by the police just to solve a blind case. They examined two witnesses in their defence.
37. DW-1 Sh. Raghunandan Sharma:- He is father of accused Manish Sharma. DW-1 deposed that on 29.12.2010 at about 9.00 to 9.30 am a quarrel had taken place between him and his son Manish. He visited police station Karawal Nagar on that day and he made complaint to ASI Desh Raj. DW-1 further deposed that ASI Desh Raj asked from him about the name and address and told him that he would call his son at police station Vivek Vihar on next day. On 30.12.2010 police persons of police station Vivek Vihar took his son and left him at around 5.30 pm. Manish told him that police persons again called him for next day. He further deposed that at around 10.00 pm his son was not at the house therefore he visited police station Vivek Vihar and met some police officers, who assured him that they will release the accused in the morning. DW-1 also filed the certified copy of the judgment passed in favour of JCL 'N' as Ex.DW1/A. In his cross examination by Ld. Addl. PP for State, DW-1 confirmed that he never made any written complaint against any police officer about the alleged false implication of his son. He further confirmed that no DD entry was lodged by him on 29.12.2010 and thereafter, against his son Manish for the alleged quarrel. To a specific question as put by Ld.Addl. PP for State this witness deposed that his son Rajneesh might be using mobile phone No. 9213232528 but he is not sure and due to this reason cannot admit or deny. He further denied the suggestion that he is making false and baseless allegation against the police persons only to save his son.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 24 of 4538. DW-2 Sh. Ram Babu Singh, Senior Manager, Operation & Maintenance, BSES, YPL, Karawal Nagar:- DW-2 deposed that he was working as senior manager since April 2010 and responsible for maintenance of substations of the area and proper supply of the electricity. DW-2 deposed that in each sub-station board of "Danger mark" is always there at front gate. All the sub-stations are locked with a common key and the said key remained with the officers of BSES including breakdown team, maintenance team, substation maintenance team and MMG team. He further deposed that no public persons are allowed to enter inside of the said sub-station but he cannot tell who was having responsible/control of sub-station in question from 15.12.2010 to 31.12.2010. In his cross examination by Ld. Addl. PP for State this witness deposed that he cannot say whether lock of the said sub-station was in proper condition during 15.12.2010 to 31.12.2010. To a specific question he further deposed that he cannot say whether the said sub- station was accessible during this period by anybody or not and voluntarily deposed that some portion of the said sub-station is always opened and anybody can enter after jumping the wall.
Arguments and Conclusion
39. Arguments have been advanced by Sh. Sanjay Kumar, Ld. Addl. PP for State as also by Sh. D.K. Bhatia, Ld. Defence Counsel for accused Anil Kumar Sharma and by Sh. S.S. Singh, Ld. Defence Counsel for accused Manish Sharma. Ld. Addl. PP for State argued that the nature of circumstantial, electronic and scientific evidence produced by the prosecution completes the chain of circumstances to lead only to one conclusion i.e. the accused persons had committed this crime. In FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 25 of 45 order to buttress the said arguments, he also referred to the testimony of prosecution witnesses particularly that of PW-10 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd., PW-11 is Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service Ltd, PW-12 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. and PW-13 Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd. He also pointed out that as per DNA finger print report Ex.PW2/PX, complainant Dharam Singh and his wife Smt. Rani are found to be biological parents of the deceased Vikas.
40. Per contra Ld. Defence Counsel for accused Anil Kumar Sharma @ Sethi argued that there is no eye witness so as to prove that accused Anil Kumar Sharma kidnapped the deceased although the area where the crime was committed is a thickly populated area. It has been argued that joint recovery of dead body is meaningless. Ld. Defence counsel argued that recovery of SIM from the possession of accused Anil cannot connect him with the alleged kidnapping and murder. Ld. Defence counsel has also filed written submissions. Ld. Defence Counsel for accused Manish Sharma argued that prosecution has failed to explain how suspect was accused Manish when the SIM from which ransom calls were made, was in the name of one Anjum Alam who was not examined by the IO. It has been argued that skeleton was lying in open and its recovery cannot be read against the accused persons as it was accessible to general public.
41. There is no ocular version of the incident and the entire case of prosecution is just on circumstantial and scientific evidence. It is a settled law that criminal jurisprudence begins with the presumption that unless otherwise proved the person facing the trial would be deemed to FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 26 of 45 be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the act of the accused with ultimate crime and where the material links constituting the chain of circumstantial evidence are found missing then the benefit of the same goes in favour of the accused. Also in a case based on circumstantial evidence, the settled legal position is that the circumstances from which the conclusion of guilt is drawn should be full proved and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
42. As observed by Hon'ble Supreme Court in case of Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622, the following five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this court in Shivaji Sahebrao Bobade vs. State of Maharashtra MANU/SC/0167/1973 : 1973 CrilJ1783 where the following observations were made:-
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 27 of 45(1) Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(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.
43. In the light of above, let me now examine whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to inescapable conclusion that accused persons had committed the crime.
1.) Ransom calls received on the mobile phone of complainant
44. PW-1 Sh. Dharam Singh, father of deceased Vikas received first call for the ransom after about a week on his mobile phone No. FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 28 of 45 9312894771, the caller demanded ransom of Rs.15 lacs and asked him to come at Behta Pipeline, Loni where he would find his son. After 3 - 4 days he again received a call and caller asked him to come with ransom money at the same place. This time complainant went there along with 5
- 6 police officials but his son was not found there. Next day he again received a call questioning him why he had come at Behta Pipeline with police. On 30.12.2010, police started intercepting the call made on the phone of the complainant and a parallel line of complainant's phone was taken on mobile phone No. 9716389553 of PW-26 SI Amarjeet Singh. Permission orders to intercept the calls of complainant u/s 419A of the Telegraph Act were obtained and proved on record as Ex.PW21/A and Ex.PW21/B. Lastly on 31.12.2010, complainant received six ransom calls from mobile phone No. 9953202208.
45. It was vehemently argued by Ld. Counsels for both the accused that the SIM No. 9953202208 from which ransom calls were made was allotted to Anjum Alam, who was not even interrogated during investigation and therefore doubted how police got suspicion on accused Manish and arrested him. The simple answer to the querry raised is IMEI number. PW-22 SI Vinay Yadav who scrutinized the call detail record of mobile No. 9953202208 deposed that on scrutiny of the call details, it was found that the said number was of Reliance Company. The IMEI number of the aforesaid phone was given to service provider and it was revealed that some another number of Idea was activated on the said phone 20 days ago and the said phone number was in frequent contact with mobile No. 9891404776. On further analysis he found that there was a difference of last digit in the IMEI number of the mobile phone from which the ransom call was made i.e. 9953202208 and FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 29 of 45 9891404776 and on checking Internet Site, PW-22 came to know that the model number of the mobile phone of both the aforesaid IMEI numbers was the same i.e. GILD - 7700 and therefore, it could be a dual SIM mobile's phone. He analyzed the call detail records and Customer Application Form and handed over to the IO.
46. In oder to distort the evidence accused Manish Sharma purchased a SIM for making ransom call but did not give his identity proof to the vendor. In this regard PW-2 Sh. Ayush Jain deposed that he was running a mobile shop in the name of Jain Computer and Mobile Solution at Raghuvar Pura X/ 782, Delhi. Accused Manish used to come to his shop for last two months to recharge his phone. In December Manish had come to him for purchasing a new SIM. He demanded ID proof from him but Manish told him that he would give the ID proof in the evening since his mother was ill and on this assurance he gave the new SIM of Vodafone to him and requested company to activate it. As per PW-2, thereafter Manish neither come to his shop, nor gave his ID proof. The mobile phone recovered from the house of accused Manish vide seizure memo Ex.PW8/D was a Chinese phone make GILD of dual SIM.
47. In an authority reported as Gajraj vs. State (NCT) of Delhi MANU/SC/1104/2011, it was observed by Hon'ble Supreme Court in para No.10 "...... the evidence produced by the prosecution is based on one irrefutable fact, namely, every mobile handset has an exclusive IEMI number. No two mobile handsets have the same IEMI number and every time a mobile handset is used for making a call, besides recording the number of the caller as well as the person called, the IEMI numbers of the handset used are also recorded by the service provider......,the FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 30 of 45 IEMI number of the handset, on which the accused-Appellant was making calls by using a mobile phone (sim) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies. In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid scientific evidence...."
48. Adverting back to the facts of the present case, PW-11 Israr Babu, Alternate Nodal Officer, Vodafone exhibited the call detail records of mobile phone No.9953202208 as Ex.PW11/A from which ransom calls were made on the phone of the complainant i.e. 9312894771. A perusal of Ex.PW11/A further goes to show that all the six ransom calls from mobile SIM No.9953202208 were made on 31.12.2010 and the IMEI number of the handset is reflected as 352604035109790.
49. Mobile phone No.9891404776 and 9213232528 were allotted to Sh. Raghunandan Sharma, father of accused Manish Sharma, as proved vide Customer Application Form (CAF) Ex.PW10/B and Ex.PW27/A. Mobile No. 8750116038 was allotted to accused Manish Sharma as proved vide CAF Ex.PW10/F. It would be relevant to point out here that although Ld. Defence Counsel had objected mode of proof of allotment of mobile No.9213232528 vide Ex.PW27/A as it was retrieved from the official mail ID of service provider but suffice it to state that Sh. Raghunandan Sharma, father of accused Manish Sharma had also given this SIM number i.e. 9213232528 as his alternative number in Customer Application Form of mobile No.9891404776 i.e. Ex.PW10/B which was applied on 15.09.2010 i.e. prior to the incident. A perusal of CDR Ex.PW10/C shows that IMEI number of mobile SIM FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 31 of 45 No.9891404776 is reflected as 352604035109780 and CDR Mark 'A' shows that IMEI of mobile No. 8750116038 of accused Manish Sharma as 352604035109790 for calls made from 09.12.2010 to 10.12.2010. The IMEI number of SIM of accused Manish Sharma i.e. 8750116038 is the same which was reflected as the IMEI number of SIM No.9953202208 from which ransom calls were made to the mobile of complainant. This electronic evidence proves beyond reasonable doubt the fact that the SIM No. 9953202208 from which the ransom calls were made to complainant was made from a handset/phone of dual SIM having IMEI numbers 352604035109790 and 352604035109780 and on the same handset SIM No. 9891404776 of Sh. Raghunandan Sharma i.e. father of accused Manish Sharma and SIM No.8750116038 of accused Manish Sharma were also activated.
2. Recovery of SIM No.9953202208 from which ransom calls were made from the possession of accused Anil Sharma.
50. Accused Manish Sharma in his disclosure statement Ex.PW14/A and accused Anil Sharma in his disclosure statement Ex.PW14/C disclosed that the new SIM No.9953202208 which was used in making ransom calls was purchased on 31.12.2010 by accused Manish Sharma from Gandhi Nagar and was given to accused Anil Sharma. The recovery of SIM No.9953202208 from the possession of accused Anil Sharma was affected in the presence of PW-8 Mohan Lal. His lengthy cross examination has not yielded any fruits. It would be relevant to highlight that although accused persons had taken a plea that the SIM was allotted to one Anjum Alam but how it was recovered from their FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 32 of 45 possession is unexplained. Recovery of SIM No.9953202208 from the possession of accused Anil Sharma is another incriminating evidence against him.
3. Ransom calls received on 31.12.2010 proved to be made by accused Manish Sharma @ Pappan.
51. Permission to intercept calls under rule 419-A of the Indian Telegraph Rules 1999, made on the mobile number of complainant Dharam Singh i.e. 9312894771 to be diverted for recording on the mobile phone No. 9716389553 of PW-26 SI Amarjeet Singh was granted vide memo Ex.PW21/A and Ex.PW21/B. On 31.12.2010, SI Amarjeet Singh recorded six ransom calls received by complainant Dharam Singh. Voice samples of accused Manish Sharma @ Pappan were taken on 07.01.2011 at F.S.L Rohini in presence of two public witnesses PW-5 Mohinder and PW-16 Sushil Kumar. Both have deposed that voice of accused Manish Sharma & JCL 'N' was taken in their presence and took in possession vide memo Ex.PW5/A and identified the Cassettes as Ex.P-3 to P-6. These voice samples with recorded ransom calls were examined by PW-24 Dr. C. P. Singh, Assistant Director (Physics), FSL, Delhi, who proved his report as Ex.PW23/PX3 - 4. According to which voice "Exhibit Q1" and "Exhibit S-1" are the voice of same person (i.e. Manish @ Pappan). In his cross examination by Ld. Defence Counsel for accused Manish, PW-24 confirmed that there is no possibility to commit any error by Computerized Speech LAB, while comparing the exhibits/samples. Thus, it is proved beyond reasonable doubt that six ransom calls which were made on 31.12.2010 by SIM No.9953202208 to the phone of complainant Dharam Singh were in the voice of accused Manish Sharma @ Pappan.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 33 of 454. Recovery of skeleton and half burnt remains of deceased.
52. Pursuant to disclosure statements made by accused person i.e. Ex.PW14/A to Ex.PW14/C and on their pointing out vide memo Ex.PW8/A the body of deceased Vikas was recovered in a skeleton condition from BSES Sub Station. PW-8 Sh. Mohan Lal, brother-in-law of deceased deposed that on 01.01.2011 he was present at his in laws house and a phone call was received from the police station. The police gave them an address and asked them to reach at the address in Karawal Nagar. As per testimony of PW-8 Sh. Mohan Lal, three persons i.e. accused Anil Sharma, Manish Sharma and JCL(N) were with the police at the spot. PW-8 explained that there was a transformer room and there was a pit surrounding the wall of the room. A burnt headless dead body was lying in that pit and same was covered with badarpur, stones and bricks. The head of the body in a burnt condition was lying separately in the pit. PW-8 Sh. Mohan Lal further deposed that the right hand and palm of the right foot of the body were not in burnt condition and he identified the body on the basis of the hand to be that of Vikas. The body was brought out from the pit and was photographed and then kept in a white colour bag and was seized vide memo Ex.PW8/A. The photographs Ex.PW17/A-1 to Ex.PW17/A-19 also corroborate the condition of unburnt hand and palm of the right foot of the body. This witness clarified that the house of accused Anil Sharma was adjacent to the boundary wall of transformer room from where the body of Vikas was recovered.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 34 of 4553. The next limb of arguments of Ld. Defence Counsel was that joint recovery of dead body cannot be read in evidence against all the accused persons. In this regard, it would be relevant to mention that on 31.12.10, after recording the ransom calls on the parallel line of PW-26 SI Amarjeet Singh and on analysis of call details by SI Vinay Yadav, IO/ PW-23 Inspector Yogesh Malhotra came to know that suspect is accused Manish Sharma who lives in A-186, Gali No.3, Rama Garden, Karawal Nagar. On 01.01.2011 at about 3.00 am, a raid was conducted at the house of accused Manish Sharma and he was enquired about kidnapped child on which he disclosed that co-accused Anil Sharma had brought the victim and child Vikas was with him. Thereafter, accused Manish Sharma led police party to the house of accused Anil Sharma who disclosed that child was with JCL (N) and thereafter they both took the police party to the house of JCL (N) but the child could not be recovered.
54. Hon'ble Supreme Court in State of (NCT of Delhi) vs. Navjot Sandhu, 2005 (11) SCC 600, has observed that "infact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officers at the same time.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 35 of 45We do not think that such disclosures by two or more persons in police custody go out of the purview of sec 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of section 27".
55. In the instant case accused were interrogated separately on which they made disclosure statements Ex.PW14/A to Ex.PW14/C and then led the police party to BSES sub Station from where on their pointing out vide memo Ex.PW8/A dead body of Vikas was recovered. Therefore, I do not find any force in the contention of Ld. Defence Counsel that this recovery cannot be read against accused persons u/s 27 of the Evidence Act. Accused persons have not disclosed how alone they were aware about the dead body of the deceased Vikas which was recovered pursuant to their disclosure statements. In this regard I am guided by an authority reported as Shankar Yadav vs. State of NCT of Delhi 186 (2012) DLT 610, Hon'ble Division Bench of High Court of Delhi held as under;
" As to whether the recovery of a dead body stands on the same footing as the recovery of any other object, cannot be open to debate. The position was spelt out clearly in State of Maharashtra v. Suresh MANU/SC/0765/1999 : (2000) 1 SCC 471 wherein Hon'ble Supreme Court observed as under:
" Three possibilities are there when an accused points out the place where dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 36 of 45 else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well - justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."
56. In an another authority reported as Suresh & Anr. Vs. State of Haryana 2015 V AD (S.C.), it was held as under;
"Apart from the above, this is a case where Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give any explanation or giving of false explanation is an additional circumstance against the accused as held in FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 37 of 45 number of Judgments, including State of Rajasthan Vs. Jaggu Ram (2008) 12 SCC 51".
57. The recovery of dead body of Vikas at the instance of accused persons from BSES transformer room, adjacent to the house of accused Anil Kumar Sharma is also a strong incriminating evidence against them. Now coming to the plea that a dead body could not have been burnt in a room which is nearly 10 x 10 fit area wherein an electric panel for distribution of electricity also installed. It was further submitted that the BSES transformer room usually remained locked and no public persons are allowed to enter inside the said sub station therefore the question arises, how the body can be burnt in the said room. In this regard accused also examined Sh. Ram Babu Singh, Senior Manager, Operation & Maintenance, BSES, YPL, Karawal Nagar, Delhi as DW-2 who was working as Senior Manager deposed in his examination-in- chief that he cannot tell who was having responsibility/control of this sub station from 15.12.10 to 31.12.2010. In his cross examination by Ld. Addl. PP for State he deposed that he cannot say whether lock of the said sub station was in proper condition and that same was accessible during this period by anybody or not. However, he voluntarily deposed that some portion of said sub station is always opened and anybody can enter after jumping the wall.
58. Scaled Site Plan Ex.PW7/A shows that BSES Electric sub station is not just a room of 10 x 10 feet as argued by Ld. Defence Counsel, rather there is separate space for two transformers installed there having separate Iron jalidar door and a separate hall of 610 x 660 cm (approx. 20 x 22 feet) apart from an open space. The dead body FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 38 of 45 remains of Vikas were recovered from this separate hall, where Electric Panel Box have been installed. The adjacent house to this sub station is of accused Anil Kumar Sharma. The portion 'A' and 'B' as shown in Ex.PW7/A, from where dead body remains of Vikas were recovered are not visible from outside the gali, benefit of which must have been taken by accused persons in burning the dead body of Vikas.
59. The video CD Ex.PW20/A showing digging out of remains/skeleton of dead body was played in the court room in the presence of accused persons and their respective counsels. It was argued that accused persons could not be seen in the video while remains of body were being dug out with the burnt head lying separately. In this regard, suffice it to state that dead body remains of child Vikas were recovered at the instance of accused persons in presence of PW-8 Sh. Mohan Lal who was called at the spot by the police. This witness deposed specifically that accused persons were present along with JCL (N) at the spot of recovery of dead body but no suggestion was given by Ld. Defence Counsel to this witness that accused persons were not at the spot when body was taken out from the trench. PW-20 Ct. Sube Singh, videographed the body being dug out from the transformer room of BSES, produced the original cassettes Ex.PW20/A before the court. No suggestion was given by this witness also that accused persons were not at the spot or as to why they are not being depicted in the CD. In fact the CD Ex.PW20/A which was played before the court is mainly focused on the trench and the persons who were searching the parts or taking the remains of the body of Vikas from the BSES room. Therefore, if accused persons are not being depicted while remains of the body are being taken from the trench, it is not fatal to the case of prosecution.
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 39 of 455. Identification of dead body remains and postmortem report
60. PW-25 Sh. A.K. Shrivastava, Deputy Director (Biology) DNA Unit, FSL, Rohini, deposed that on 11.01.2011, he received two sealed parcels sealed with the seal of MAMCSM and parcel No.2 was one small plastic container which was containing one small piece of jaw which teeth said to be jaw bone of deceased. On the same day i.e. on 11.01.2011, blood sample of Sh. Dharam Singh and Smt. Rani were collected in his presence in the DNA Unit, FSL, Delhi and as per his detailed report Ex.PW23/PX1-2, Sh. Dharam Singh and Smt. Rani are the biological father and mother of the source of Exbt.2 i.e. jaw bone of the deceased. The testimony of PW-25 remains unrebutted. Although accused Anil Sharma in his statement u/s 313 Cr.P.C. took the defence that during his judicial custody he came to know a news related to this case that police has claimed that the dead body of Vikas was found from a drain however, when the expert came into the witness box, no suggestion was given in this regard. The DNA report Ex.PW23/PX-1-2 proves beyond reasonable doubt that the dead body remains which were recovered in the presence of PW-8 from BSES sub station and seized vide memo Ex.PW8/A were of Vikas i.e. son of the complainant.
61. Both the accused in their disclosure statements Ex.PW14/A and Ex.PW14/C disclosed that when the child Vikas was brought to the house of accused Anil Kumar Sharma, he started shouting and thereafter he caught hold the foot of the child and JCL 'N' caught hold his hand while Manish pressed his neck and thereafter killed him after putting pillow on his mouth. Postmortem of the dead body remains of Vikas was conducted by Medical Board and as per their report FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 40 of 45 Ex.PW6/A, the possibility in this case of death having occurred as a result of smothering and strangulation cannot be ruled out. PW-6 Dr. Sreenivas M, Associate Professor, MAMC also deposed in this regard and proved his report. In his cross examination he confirmed that postmortem report was prepared at the instance of all the doctors. Cross examination of PW-6 was not directed that the cause of death of Vikas could not have been due to smothering or strangulation. It is further pertinent to note that a key chain ring with two keys were also recovered from the body remains. As per PW-1, father of deceased, the keys of two locks used to remain with Vikas and after Vikas was kidnapped the lock of the room was broken and the lock of cycle was got opened from a vendor, who prepares duplicate keys. Both these locks were seized vide memo Ex.PW1/A and the key chain ring with two keys which were recovered by the Board of Doctors who conducted the postmortem were also examined by the FSL experts and vide report Ex.PW23/PX, it was opined that the keys of lock marked Ex.PW5/A were operational by the key Mark Ex.PW4/A. Thus, it was also proved that the keys recovered along with the remains of the dead body of Vikas were in fact of the lock of his bicycle and room. Thus, prosecution has successfully proved that the dead body remains recovered from BSES sub station was of Vikas i.e. son of the complainant. Thus, identity of the recovered dead body remains is proved beyond any reasonable doubt.
6. Conspiracy and kidnapping
62. Now, the next question that arises is whether accused persons pursuant to their agreement to commit the offence, kidnapped Vikas. Before proceeding further it would be relevant to mention the law FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 41 of 45 as settled by Hon'ble Supreme Court in an authority reported as Shiv Narayan Laxminarayan Joshi & Ors. Vs. State of Maharashtra, (1980) 2 SCC 465, wherein it was held by the Hon'ble Apex Court that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible.
In an another authority reported as Mohammad Usman Mohammad Hussain Maniyar & Ors. Vs. State of Maharashtra, (1981) 2 SCC 443, it was observed by the Hon'ble Apex Court that for an offence under Section 120 B, the prosecution need not necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication.
63. In this regard following incriminating facts have been proved by the prosecution.
(I) Deceased Vikas was previously known to accused Anil Kumar Sharma. PW-1 Sh. Dharam Singh, complainant and PW-9 Sh. Ved Singh, both have deposed that deceased Vikas used to perform the role of Hanuman in Ramleela and accused Anil also used to act in Ramleela, due to this deceased used to call accused Anil Kumar Sharma @ Sethi as uncleji and used to touch his feet in respect. Accused Anil Kumar Sharma had also taught riding motorcycle to deceased Vikas as he was having motorcycle as deposed by PW-9 who is running a tailoring shop in the same vicinity.
(II) The child Vikas as per PW-1 left the house on 15.12.2010 at about 6.30 pm while saying that he had left the ball in the FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 42 of 45 park and thereafter, he did not come back to the house. Mobile phone No. 8527170744 was allotted to accused Anil Kumar Sharma and he had given his alternative mobile number as 9350443693 in CAF Ex.PW12/B. A perusal of CDR Ex.PW12/E shows that accused Anil Kumar Sharma made a call on mobile phone No.9891404776 i.e. in the name of Sh. Raghunandan Sharma (father of accused Manish Sharma @ Pappan) on 15.12.2010 at 18:59:10 i.e. 6.59 pm and thereafter, number of calls were exchanged between accused persons till 21:58:39 on the same day and the location as per CDR Ex.PW12/E is Karawal Nagar, Delhi. These call details exchanged between accused persons on the day of incident at the relevant time i.e. 15.12.2010 at about 7.00 pm corroborates the fact as disclosed by accused persons in their disclosure statements Ex.PW14/A and Ex.PW14/B that accused Anil Kumar Sharma after kidnapping the child made a call to co-accused Manish Sharma, who told him to bring the child to Karawal Nagar.
(III) The dead body remains of child Vikas were recovered pursuant to their disclosure statements from BSES sub station adjacent to the house of accused Anil Kumar Sharma. It is specifically deposed by the witness that there is one common wall between the BSES transformer room and house of accused Anil Kumar Sharma.
(IV) Child Vikas was aged about 13 - 14 years and of good built as appearing in the photograph of child placed on record and also from the fact that he used to play the role of Hanuman in Ramleela. Therefore, it is not probable that someone could kidnap him without his resistance or shouting, unless the kidnapper was known to him and kidnapped him on some other pretext.
(V) Accused Anil Kumar Sharma took the defence in his statement recorded u/s 313 Cr.P.C. that he was attending the marriage FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 43 of 45 ceremony of his brother-in-law (saala) namely Kishan at Shiv Vihar on 15.12.2010 and remained in the said function on the next day i.e. 16.12.2010 along with his family and thus claimed his involvement in this case as false. However, no evidence is led by the accused in support of his defence, which he took first time in his statement u/s 313 Cr.P.C.
All these incriminating circumstances and call detail records between accused Anil Kumar Sharma @ Sethi and Manish Sharma @ Pappan made at the relevant time proves beyond reasonable doubt that accused persons hatched a conspiracy to commit offence pursuant to which accused Anil Kumar Sharma kidnapped the child on the pretext to give him ride on his motorcycle and thereafter murdered the child Vikas with co-accused Manish Sharma @ Pappan.
7. Disappearance of Evidence.
64. The dead body remains of the child were recovered after a period of 15 days on the pointing out of accused persons from the BSES room after digging a trench by 4 - 5 feet. It has come on record that some badarpur, sand, rori and brick were put on the dead body remains of the deceased child and the door of the BSES room was shut from outside after putting a latch (kundi) as deposed by PW-26 SI Amarjeet Singh. The photographs Ex.PW17/A-1 to Ex.PW17/A-19 and CD Ex.PW20/A as well as the testimonies of prosecution witnesses proves that accused after committing the murder of the child burried his half burnt remains into a pit after putting badarpur, sand, rori and bricks and thus caused disappearance of the evidence of offence.
65. In the light of aforesaid discussions, court is of the considered opinion that Prosecution has successfully established FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 44 of 45 beyond reasonable doubt and the chain of circumstantial evidence, electronic and scientific evidence is so complete and it does not leave any reasonable ground for the conclusion consistent with the innocence of the accused persons and proves beyond reasonable doubt that accused Anil Kumar Sharma @ Sethi and accused Manish Sharma @ Pappan pursuant to their criminal conspiracy kidnapped Vikas for ransom and in furtherance of their common intention murdered him and after partially burning his dead body buried it at BSES sub station, Karawal Nagar, Delhi to cause disappearance of evidence of offence. Therefore, both the accused, Anil Kumar Sharma @ Sethi and Manish Sharma @ Pappan are held guilty for offence punishable u/s 363/364-A/ 302/201/120-B/34 IPC and stands convicted thereunder.
Announced in the open court (Sanjeev Kumar Malhotra)
On 04.02.2017 ASJ/FTC/E-COURT
Shahdara/KKD/Delhi
FIR No. 288/2010 State Vs. Anil Kumar Sharma @ Sethi & Ano. Page 45 of 45