Delhi District Court
State vs . Anuj Kumar Tiwari on 3 November, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 152/10
Computer ID No. 02403R0374392009
State Vs. Anuj Kumar Tiwari
S/o Shri Sudershan Lal Tiwari
R/o House no. Village Shahbad,
Beeram Pur, P.S. Pachdevra, District Hardoi, U.P.
(In Judicial custody)
FIR No : 246/09
P.S. : Lajpat Nagar
U/s. : 302/201 IPC
DATE OF INSTITUTION : 15.11.2010 (Initial date of
Institution: 21.11.2009)
JUDGMENT RESERVED ON : 03.10.2012
DATE OF DECISION : 03.11.2012
JUDGMENT:
1. Prosecution case in brief is that on receiving information through DD no. 25 dated 06.07.09 IO Inspector CK Sharma (SHO Lajpat Nagar) reached spot i.e, O2/II, Lajpat Nagar, 3rd Floor (Inflight Air Hostess Training Institute) at around 9.45 pm where he met SI Sandeep Ghai alongwith other police officials , Pammi Talwar and four other trainees, namely State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-1 of 72) Rahul, Hemant Kothari, Ramesh Chand and Ajay Singh, and on inquiry he was informed that a dead body of a female is lying in a bathroom. He inspected the dead body and thereafter, statement of Rahul was recorded by SI Sandeep Ghai. Pursuant to which rukka was prepared and FIR was registered.
2. In the meanwhile, crime team was called and dead body was identified by Ms. Pammi Talwar being of one Geeta a maid servant working in Institute for last 3 years. During inspection of dead body she was found to be wearing salwar, suit and one orange colour dupatta found tied in her neck and word 'Kishen" found tattooed on her right forearm and a mobile number 9915869233 was found written on the northern side of wall of bathroom near washbasin.
3. Rahul in his statement to the police alleged that they are studying diploma course in Aviation and Hospitality Management in that Institute and was residing alongwith Hemant Kothari and Ramesh Chand for last 67 days in Institute on temporary basis. And on the day of incident at around 5.50pm when he went on the ground floor, found maid servant Geeta then asked her to clean their clothes as they were gong to see room on rent at S.N. Puri and had given key of their room to Geeta who after cleaning was asked to put keys behind the poster near the gate and thereafter they all went away and came around 8 pm, but did not find keys behind the poster. He further alleged in his statement that when they went upstairs, they found the gate of the IIIrd floor closed and on their knocking nobody State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-2 of 72) replied, thereafter they started knocking the door briskly and about after 15 minutes one boy medium height clean shaved opened the door and told them that Geeta was washing clothes in the bathroom. Thereafter, he went down the stairs and then they thought Geeta was washing the clothes, but found their room locked thereafter they went to bathroom to take keys from Geeta and in bathroom they found Geeta was lying on floor and her neck was found strangulated through a chunni. Then, he called his three friends, Hemant Kothari called owner Pammi Talwar on mobile, as well called 100 number.
4. During investigation, crime team photographer took photographs of the spot and dead body, however, no chanceprints were found. When crime team checked the body, word Hemant in Hindi and mobile no. 99158689233 was found written on her palm. Thereafter, IO prepared site plan at the instance of Rahul and at around 1.30 am Ct. Sanjiv brought the original rukka and copy of FIR. Dead body was shifted to AIIMS mortuary at around 1.35 am. And articles lying at spot were seized and thereafter, statement of other trainees were recorded between 3 am to 4.15 am.
5. During investigation, MS. Pammi Talwar stated that deceased Geeta was working with her for last 3 years and was using mobile no. 9873231275 but the same was not found at the spot and might have been taken away by the murderer. CDR of same mobile number was collected and it was found that the said mobile number was found to be registered in the name State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-3 of 72) of one Anuj Kumar, who was her earlier driver, and was very friendly with Geeta thus shunted out from service.
6. On inquiry of CDR of mobile number 9873231275 , CDR of mobile no. 9213909227 was obtained from Tata tele services and it was found that last call was made from this number is at around 7.15 pm on 06.07.09 at mobile number 9971737785 which was found in the name of one D. Kamlesh but used by Pramod Kumar on which accused Anuj Kumar Tiwari contacted his brother Vipin Tiwari. During investigation, Mr. Pramod Kumar Tiwari took the police party to house of Vipin Kumar who stated that the mobile no. 9213909227 belongs to him however the same is used by Anuj Tiwari and further disclosed that Anuj on night of 06.07.09 came to his house and went to native village in night. Thereafter, accused Anuj Kumar Tiwari was apprehended from bus stop Shahbad Hardoi on 09.07.09.
7. During interrogation, disclosed that he had sexual relationship with deceased Geeta for last so many years and nowadays her demand started increasing and she started blackmailing him and deceased Geeta also started developing intimacy with other persons and he lost his job because of his relationship with deceased Geeta. He further disclosed that on 06.07.09 after calling her, he came to Institute and found her talking with Alok Kumar Singh @ Dipu driver of Pammi Talwar and when he raised objection, she started shouting and had altercation and finally in order to get rid of her, he strangulated her with her own dupatta. In the meanwhile, State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-4 of 72) he heard the knock at door and thereafter he placed dead body in bathroom and went away from the institute.
8. Accused was produced in court on 10.07.09 and an application for judicial TIP was moved, which was fixed for 14.07.09 but accused Anuj Kumar Tiwari refused to participate in TIP. As per postmortem report, deceased was found to be died of asphyxia due to ante mortem strangulation caused by ligature. During investigation, efforts were made to trace mobile phones but accused destroyed all of them. Therefore, section 201 IPC was also added. Word 'Geeta Anuj' was found tattooed on forearm of accused Anuj Tiwari. On completion of investigation, chargesheet u/s 302/201 IPC was filed against accused Anuj Kumar Tiwari.
9. On committal, charge u/s 302 was framed against the accused to which he pleaded not guilty and claimed trial.
10. Prosecution for substantiating charges, examined 35 prosecution witnesses. Summary details of their deposition are as follows. Deposition of Rahul (PW4), Hemant Kothari (PW10) Ajay Singh (PW13) and Ramesh Chand PW14)Witnesses of last seen:
11. PW4 Rahul deposed that in the year 2007 he was doing Diploma in Civil Aviation at Air Hostess institute Lajpat NagarII alongwith, Ramesh Chand, Ajay Singh and Hemant Kothari and were temporarily residing at 3rd floor of the Institute. And on 06.06.09 at around 5.30 pm he came downstairs for taking water bottle and met deceased Geeta who asked him State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-5 of 72) that she will wash their clothes and asked for keys of room,thereafter keeping water in room, they all came and handed over keys to Geeta and she was asked to keep keys behind the poster of the room after washing the clothes and closing room. He further deposed that thereafter they all went from Institute for searching room and at 8 pm they came back and on searching keys they did not find them and went to 3rd floor, there were three rooms at 3rd floor, one room was occupied by them and two rooms were locked. He knocked the main door for 1015 minutes, thereafter, present accused opened the main door from inside and told them that Geeta was washing clothes thereafter went away from there, when found their room locked from outside and went inside the bathroom and found door of bathroom closed and pushed the same and found dead body of Geeta. He further deposed that bathroom was outside his room which was locked and dead body of Geeta was lying on floor and dupatta was tied around her neck. He further deposed that he came out and told these facts to his colleagues then Hemant Kothari informed the incident to Pammi Talwar and called 100 number on direction of Pammit Talwar thereafter, police reached the spot and also recorded his statement.
12. In cross examination, deposed that they had taken admission in said institute 67 days back and Ajay joined institute on same very day and Hemant got admission 23 days after his admission. He further stated that he talked to Geeta regarding washing of clothes. He further deposed that police had not made any inquiry from landlord. He further deposed that State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-6 of 72) police recorded his statement thrice. He put signatures on statements. And two of his statement were recorded on same day and third on 17.08.09. however the supplementary statement of witness was shown to him which was without his signatures. He also stated that it is correct that bathroom was attached with Institute and not with balcony. He further stated that he had not seen Geeta working till late evening and other staff members of Institute remained present till 6 pm. He further stated that he did not sign on sealed pulandas of case property recovered from spot. And he was present alongwith his friends when PCR came to spot and they made inquiries from them. He also stated that PCR people also recorded their statements but he do not remember whether he signed or not. He further deposed that he do not know whether Geeta was friendly in nature or not. He further deposed that it is correct that a bathroom in which dead body was found was not attached with their room and they were using that bathroom during their stay. And he had handed over the bunch of keys to Geeta consisting of key of their room as well as their bathroom. He further stated that number written on hand of dead body was of Hemant but he do not remember the number written on wall of bathroom. He further deposed that there was no security staff in premises. And he do not know about any friendly relations between Geeta and driver of Pammi Talwar. He deposed that he also do not know whether she was having any personal mobile or not. He further deposed that police took their signatures from various documents in PS on the same day and remained State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-7 of 72) in police detention for 45 days after the incident. He further stated that he had no knowledge whether Pammi visited PS Lajpat Nagar during their detention or not. He further deposed they were kept in hotel at Lajpat Nagar but do not remember its name. He further deposed that their clothes were lying in bucket inside the bathroom where dead body of Geeta was found. However , he do not know whether police had taken their clothes in their possession and socks seized as P3 belongs to Hemant. He further deposed that he put signatures on documents prepared by police without going through them. He further denied suggestion that they all friends tried to make relations with Geeta and when they failed they killed deceased Geeta.
13. PW10 Hemant Kothari deposed that on 06.07.09 he alongwith Rahul, Ramesh and Ajay went in evening to Sri Niwas Puri in search of residential accommodation and Rahul handed over the keys of their room to Geeta and told her to keep the key behind the poster after washing their clothes and came back to their room at around 8/8.15 pm. He further deposed that thereafter they went to terrace of house, however Rahul went downstairs to bring water bottle but they did not find key behind the poster. And when Rahul knocked the main gate of their room, no response came from inside. Thereafter, one boy came out of room who told Rahul that Geeta is washing clothes thereafter Rahul went in the room to take keys from Geeta however he found her lying on floor of bathroom and shouted 'jaldi neeche aao'. Thereafter he called Mrs. State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-8 of 72) Talwar and also rang up 100 number at her instructions. Police reached within 1015 minutes. He further deposed that he accompanied police to third floor and went inside their room where they found slippers of deceased lying there. And thereafter, 1015 minutes police officials came and recorded their statements, after proceedings media persons also reached the spot. And police took them to PS and interrogated them entire night and told them to stay at rest house in PS for preparing sketch of alleged accused. He further deposed thereafter Rahul and Ajay got prepared rough sketch of accused and they remained with police till 8/9.07.09. he further deposed that after 3 days he and his room mates were called to PS and it was informed that accused is somewhere in Bareilly. He further deposed that within 710 days of their previous visit they were again called at PS for identification of accused and accused was shown to them and Rahul and Ajay identified them as same person who came out of their room on the day of incident. And lateron name of accused was revealed as Anuj present in the court.
14. In cross examination he stated that it is correct that whatever is stating today is on narration of Rahul. He further deposed that today he has refreshed his memory and some part of it was explained to him by officer present in court and identified the officer present in the court. He further deposed that police had not taken any identity or admission card from him to ascertain whether he was student or not. He further deposed that he was using mobile no. 9015689233 at that time. He further deposed that he was State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-9 of 72) residing in Institute for about one week and Rahul made all conversation with Geeta and at that time Rahul was not having any mobile. He said that he searched house at S.N. Puri himself and told that address to police but today he do not remember that address. He further deposed that his statement was recorded by police and he had not given any statement in writing and further had not read any statement given to police and put his signatures on some papers but he do not know what was written on those papers. And those signatures were taken by police after second visit after arrest of accused. He further deposed that on day of incident only Rahul had seen accused and he had not seen the accused. He further deposed that statement of his friends were also recorded when police recorded his statement and they had not given their statement in writing. He further deposed that he had not signed statement given by police. He further stated that in his presence police had not recorded statement of other persons. He further deposed that police had not seized any articles from spot and PCR came to spot in his presence and PCR called local police at the spot. He further stated that police had not recorded statement of landlord at S.N.Puri. He further deposed that police recorded his statement only once and also stated that after incident they all friends remained in touch with each other. It is also correct that bathroom is attached to training hall and second entrance of bathroom is attached to terrace to their balcony. He further deposed that at the time of entrance bathroom was opened. He further deposed that madam Pammi Talwar's State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-10 of 72) driver was frequent to visit deceased and he saw dirty clothes lying in bucket. He further deposed that bathroom was not attached to their room. He further deposed that phone number found on hand of dead body and in bathroom was of him. He also stated that police had kept them in detention till the time accused was apprehended by the police. He further stated that he had not seen accused on the day of incident.
15. PW13 Ajay Singh also deposed that in 2009 they were residing in hostel in Institute on 3rd floor and deceased Geeta was working as maid servant and he had talked deceased to wash their clothes in consideration to Rs. 100/ from each of them. He further deposed that on 06.07.09 they all went to see a rented room at Sri Niwas Puri and left the hostel at around 6 pm and at that time, Rahul told deceased Geeta that they are going to see house at Sri Niwas Puri and requested her to wash their clothes. And the keys of the room was given to Geeta. When they returned back at around 8 pm , they went to take keys from Geeta however, the door of hostel was found bolted from inside and after about 15 minutes accused opened the same and told that Geeta was washing clothes and thereafter went away and they thereafter went inside and found Geeta was lying in bathroom with knot on her neck with chunni and was dead at that time, further stated that he identified the accused before police on 18.07.09.
16. In cross examination deposed that he left the Institute after this incident. Rahul had talk with Geeta regarding washing of clothes and at that time they were having mobile phone and using the same. He further deposed State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-11 of 72) that Rahul had a talk with deceased Geeta regarding washing of clothes in his presence. He further stated that it is correct that Geeta was of friendly nature and sometimes remained available in Institute even after closing of Institute and other students also resided in the Institute. He further deposed that bathroom was not attached with their room but with room of Institute and there is no way to enter in bathroom from balcony side. He further deposed that on that day they could not get rented room and had given keys of room to deceased Geeta. He further deposed that when accused opened the door Ramesh, Rahul, Hemant and he himself were present and they were also present at the time when PCR came. He further deposed that he had not checked the body of deceased however, noticed some marks around the neck. He further stated that he had given the statement to police twice firstly on 06.07.09 and secondly on 18.07.2009 and further had signed the statement on 18.07.09. he further deposed that police had not taken his signatures on any document on 18.07.2009. he further stated that he do not know whether police seized clothes and also do not know whether police had seized socks of Hemant or not. He further deposed that police had taken all of them in custody in the intervening night of 6/7.07.09 and left them at around 3.30 am thereafter they went to their respective places. He further deposed that he do not remember whether when they were taken to PS, owner of Institute was present and also stated he do not remember whether owner went to PS or not. He further deposed that his blood group is B positive. He State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-12 of 72) denied the suggestion that he alongwith his friends had tried to rape deceased Geeta and when she retaliated, they murdered her.
17. PW14 Ramesh Chand also deposed on same lines and stated that on 06.07.09 Rahul had given the keys of their room to Geeta for washing clothes and they left for Sri Niwas Puri at 5 pm and when they returned back at around 8 pm they found entrance door closed from inside and knocked the door and for around 1015 minutes, accused came out and opened the door and told them that Geeta was washing clothes and went away from their stairs. Thereafter they saw Geeta lying in bathroom with knot on her neck with chunni and no other person was found at third floor at that time. Thereafter, Hemant called Institute owner as well as police. He further deposed that on 18.07.2009 he identified accused before police.
18. In cross examination, deposed that Rahul had taken their consent to engage Geeta for washing clothes. He further deposed that timing of office was till around 6 pm but he cannot tell whether deceased Geeta used to remain present in Institute till office hours. No time for washing clothes for Geeta was fixed. He further stated that he do not know about the nature of deceased as he had not met her much. He denied suggestion that he want to develop friendship with Geeta. He also denied suggestion that there was excess to bathroom from the balcony attached to their room. He further deposed that when PCR came they were at spot and officials took them to third floor. He further stated that he do not remember up to what time they remained at spot and also stated that he State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-13 of 72) had not given any statement in writing to police however their statement was recorded in PS but could not tell whether PS was of Lajpat Nagar or some other and stated that he had signed the statement. He was confronted with his statement where the factum of talking with Geeta for washing clothes is not mentioned. He further deposed that police detained all of them for 45 days at Hotel room at Lajpat Nagar after incident. He further deposed that during their detention police had not taken their signatures on any paper. He further deposed that police had taken them for preparation of sketch of accused on 07.07.09 and further stated that he went back to native place on 18.07.09. police had shown them accused on 18.07.09. he further stated that they used to meet the police even before 18.07.09 and police had told them they have apprehended accused on 18.07.09. He further deposed that police had not mentioned about the sketch in his statement on 06.07.09.
Deposition of Pammi Talwar (PW1) owner of Institute, her driver Alok Kumar Singh (PW2), Sh Sunil Kumar (PW25) other driver regarding relationship of accused and deceased:
19. PW1 Pammi Talwar deposed that she was running Inflight Air Hostess Training Institute at O2 Lajpat NagarII and deceased Geeta used to work as maid servant having mobile no. 9873231275 and accused Anuj Kumar was working with her as driver and once she saw accused touching the face of Geeta, thereafter she scolded him and terminated him from the State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-14 of 72) job.
20. PW2 Alok Kumar Singh @ Dipu deposed that deceased Geeta used to work at Institute as maid servant and he was driver with S.K . Talwar and Pammi Talwar and accused Anuj Kumar Tiwari was also used to work as driver at the Institute and he had talk with Geeta only once before the murder of Geeta on 06.07.09 and deceased Geeta had good relations with accused Anuj Tiwari and he had seen both of them in kitchen of the Institute and was terminated from the services when the owner of Institute came to know about affairs between Geeta and Anuj Tiwari.
21. PW25 Shri Sunil Kumar deposed that he was working as driver with one madam in office at Lajpat Nagar. However, he do not know whether maid servant lady who was killed by somebody was having any affair with anybody. On being declared hostile, in cross examination by Ld. Addl. P.P. deposed that it is correct that maid servant Geeta used to serve tea to madam Pammi and was murdered on 06.07.09 in institute. However, denied of knowing of any relations of accused Anuj Tiwari with deceased Geeta. He further denied that accused Anuj Tiwari gave mobile no. 9873231275 to Geeta. In cross examination deposed that neither he nor the madam was present at the time of murder and after incident he came with madam to institute at around 6.00 p.m. and reached institute within an hour and had seen police at the institute and remained at the institute for about half an hour and came back to Noida alongwith madam in car. Deposition of Pramod Kumar (PW3), Vipin Tiwari (PW12) brother of State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-15 of 72) accused regarding use of mobile no. 9213909227 and arrest of accused:
22. PW3 Pramod Kumar Rathore deposed that in the year 2009 he was using mobile number 9971737785 and police made inquiry from him of mobile no. 9227 (complete number he do not remember) which belongs to Vipin Tiwari as he wanted to talk to his wife. On being declared hostile he denied that mobile no. 9213909227 was used by Anuj Tiwari. He also denied suggestion that on 06.07.09 at around 7.15 pm he received call from Anuj Kumar Tiwari.
23. PW12 Vipin Tiwari deposed that accused Anuj Tiwari is his real brother and used to reside with him and due to some dispute he left the services of driver of Pammi Talwar and working in Fortis Hospital, Noida. He further deposed that he had not given any mobile phone and also do not know about affair with any lady at Air Hostess institute. He further stated that he alongwith police went to Hardoi and police arrested him from his house at Hardoi, thereafter, they came back to Delhi. On being declared hostile, in cross examination by Addl. PP, he admitted that accused Anuj Tiwari was driving the vehicle of Pammi Talwar for 3 years however denied his affair with deceased Geeta and also denied that he had given the mobile no. 9213909227 to the police. In cross examination, he deposed that police had not recorded his statement and police took his signatures on blank papers and further stated that his brother left the State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-16 of 72) company because Institute had not given his salary.
Deposition of Kishan Kumar (PW29), Ram Kumar (PW17) and Anil Kumar (PW19) over identification of deceased body:
24. PW29 Shri Kishan Kumar deposed that his wife Geeta was working at institute of Pammi Talwar at Lajpat Nagar and his wife was maintaining mobile phone bearing no. 9873231275 and she was found dead in the bathroom of said institute and he identified her dead body. In cross examination deposed that he had not gone to institute on the day of incident. However, at 11.00 p.m. police came and took him to police station but not recorded his statement and had seen dead body of his wife while police was taking dead body for postmortem from the place of occurrence. He further deposed that his wife Geeta used to remain in the institute till late hours.
25. PW17 Ram Kumar Verma being brother identified the dead body of his sister Geeta. In cross examination deposed that deceased was his cousin sister. But he do not know that she reside's in her tau's house or at place of her duty or and at what time she used to go to her duty, however denied that she was not having good relations with her husband, but some times used to had quarrel with her husband.
26. PW19 Anil Kumar Verma being brother of deceased identified her dead body. In cross examination he stated that her relations were not cordial with her husband but could not tell when his sister used to go to job. State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-17 of 72) However, quarrel took place at her house when she used to come late from her office.
Deposition of Inspector Hansram (PW26) and HC Vijay (PW21) witness to the arrest of accused Anuj Tiwari:
27. PW26 Inspector Hansram deposed that on 08.07.09 on the direction of ACP he alongwith SI Ram Niwas, SI Girish, HC Vijay and Ct. Udai proceeded for Kaushambi, District Ghaziabad for search of accused Anuj, where they met one Pramod Kumar who disclosed that Anuj Kumar called on his telephone that he wants to talk to his brother or sister in law (bhabhi). Thereafter, he had talk with his brother. He further deposed that his brother Vipin also met and told them that Anuj came there and met them in the night of late hours of 06.07.09. Thereafter proceeded to Hardoi and at Hardoi accused Anuj found on bus stop of Shabad, District Hardoi. In his disclosure statement disclosed that he developed illicit relations with Geeta and when owner Pammi Talwar came to know about their relations, dismissed him from service and on 06.07.09 he went to institute and found Geeta busy on telephone, thereafter, had a quarrel with her and strangulated her.
28. In cross examination deposed that he do not know whether any rough sketch of accused was handed over on 08.07.09 and vehicle was arranged was Tata tempo driven by private person and he had not recorded the statement of driver. He further deposed that he met Vipin Kumar at State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-18 of 72) Bhopur village in the evening but do not remember the time and also could not tell number of tolls and cities came while reaching to Hardoi district and further stated that he intimated the arrest of Anuj Tiwari to local police and the said information was entered in the roznamcha and he had handed over the copy of said roznamcha to IO. He further deposed that the documents were prepared at Hardoi by one constable on his instructions but he do not know his name. He further deposed that when they left the PS he made the departure entry that they were going to Hardoi and not to Bhopur and in this regard they not intimated the local police at Bhopur. He further deposed that he cannot tell whether name of constable who helped him in writing was Ct. Udai or not. He further deposed that Vipin signed on the disclosure statement, personal search and arrest memo of accused Anuj as witness., However, stated that no signatures of Vipin Kumar was found on disclosure statement, personal search memo and arrest memo of accused Anuj. He further deposed that no driver or any other employee of bus terminal was joined in the investigation. He further deposed that accused was apprehended in the morning but cannot tell whether it was 8.00, 9.00 or 10.00 in the morning.
29. PW21 HC Vijay Singh deposed that on 08.07.09 he alongwith Inspector Hans ram and two SI Ram Niwas and SI Girish Jain and Ct. Udai reached Bhopur Kausambi where they met Pramod Kumar Rathore and on inquiry he told that mobile no. 9213909227 belongs to Anuj kumar. He further disclosed that on 06.07.09 at around 7.15 Anuj Kumar Tiwari had also State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-19 of 72) called on his mobile. His brother Vipin Kumar talked to Anuj Tiwari through his mobile phone on request of accused Anuj. Thereafter they went to house of Vipin Kumar brother of Anuj who told that his brother went to Native place on 06.07.09 in night. And at bus stop they apprehended Anuj Kumar at instance of his brother. In cross examination, deposed that he do not know whether prior to 07.07.09 IO collected CDR of phone nos and they went to Ghaziabad on Tata Safari (a private vehicle) but do not know who driving same and not aware of any departure entry. He further deposed that he is not aware of whether local police of Ghaziabad was informed or not. He further deposed that in his presence no ID card of Pramod Kumar was collected and nothing was recovered from Pramod kumar and IO recorded the statement of Vipin in his presence. He further deposed that in same vehicle they went to Hardoi alongwith Vipin. But could not tell the route. He further deposed that no local police of Hardoi was informed and entire proceedings and disclosure were collected at bus adda by sitting below tree on stones. He further deposed that accused was asked to remain in muffled face. Deposition of IO C.K. Sharma (PW35), Sandeep Ghai (PW34) and SI Shyamlal Bhardwaj (PW28):
30. PW35 IO/Inspector C K Sharma (retd.) deposed that on 06.007.2009 when he was on patrolling, he received information at around 9.50 p.m., thereafter reached the institute where he found SI /Sandeep Ghai, ASI State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-20 of 72) Shyam Lal , HC Sanjeev alongwith owner of institute and crime team and dog handler were also called at the spot. Four boys viz., Rahul, Hemant, Ramesh and Ajay were also present. He further deposed that exhibits lying at the spot were also seized. He further deposed that on next day i.e, 07.07.09 he alongwith SI Sandeep Ghai reached mortuary and recorded statement of Ram Kumar Verma and Anil Verma regarding identification of dead body and in the evening Ms. Pammi Talwar came to PS and stated that deceased was using mobile no. 9873231275 and that phone was not found at the spot. He further deposed that thereafter they had taken the CDR of that mobile phone and found the mobile number 9213909227 of accused Anuj Kumar Tiwari and sent a team to arrest the accused. He further deposed that on 10.07.2009 accused Anuj Kumar was produced in court in muffled face and his TIP application was listed for 14.07.2009 and on 18.07.2009 accused was taken on PC and all the four boys who were present on day of incident, identified accused Anuj and on 20.07.2009 he had taken specimen signature and handwriting of accused Anuj Kumar Tiwari. He further deposed that on 11.09.2009 he seized the staff attendance register of institute.
31. In cross examination deposed that he do not remember whether he had seen any PCR at the spot or not and had not recorded any statement of PCR official and reached the spot at around 10.00 p.m. and made inquiries from four boys in the institute but do not find their hand in the offence. He further deposed that he had not verified that those boys went State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-21 of 72) to Sri Niwaspuri for taking room on rent and the phone number which was found in the bathroom and hand of the deceased, he had not collected CDR of that number. He further denied suggestion that to save those boys from culpability he had not taken the CDR of that number. He further deposed that during inquiry he found that the socks which were lying outside the bathroom was of Hemant and phone number which in the bathroom was also of Hemant. He further deposed that premises where the boys were staying was found closed but cannot tell whether it was locked and closed. He further deposed that boy had not entered into said room. Vol. dog could not give any lead. He further deposed that he had not recorded proceedings in his own handwriting but documents were prepared in his supervision and most of the proceedings are in the handwriting of SI Sandeep. He further denied suggestion that proceedings were not conducted in his handwriting because he was not present at the spot. He further deposed that he got to know about the name of suspect in the evening of 07.07.09 from Pammi Talwar and they had not prepared any rough sketch of the suspect as per the description given by those boys a nd those four boys remained with them till inquiry till 4.30 a.m. and those boys were left at the spot because they were residing there and they had not left any official at spot for preserving the same as nothing was left at the spot for preservation. He further deposed that they do not any clue about the suspect / accused till it was told by Pammi Talwar and statement of Pammi Talwar was recorded by SI State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-22 of 72) Sandeep in his handwriting in his presence. He further deposed that he do not remember when he first asked Pammi Talwar to produce register and she had manipulated the entries and for that reason she had not produced the same. He further deposed that Pammi Talwar told them that deceased Geeta using one mobile no 9873231275 which was of accused Anuj Tiwari provided by deceased Geeta and said mobile phone was not found at spot. He further deposed that Pammi Talwar also told them that Geeta had illicit relations with accused Anuj Tiwari. He further deposed that he do not remember whether this fact whether accused Anuj Tiwari had provided mobile phone to Geeta. He further denied suggestion that no mobile phone was given by accused Anuj to deceased Geeta. He further deposed that on 08.07.2009 he recorded statements of Sunil and Alok driver of institute regarding illicit relations of Geeta with accused Anuj Kumar Tiwari. He further deposed that after 07.07.2009 those four boys joined investigation on 14.07.2009 for identifying accused, which accused had refused. He further denied suggestion that accused refused to join the TIP because he was shown to those boys before TIP. He further deposed that he is not aware about the above mentioned four boys where they stayed after 07.07.2009 till date and had not taken signatures of those boys on the pulanda prepared on 06/07.07.2009 and seal was not handed over to those boys or other public person after use. He further deposed that he had not inquired about the second marriage of deceased Geeta and not collected CDR of his husband. He further deposed that State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-23 of 72) copy of CDR was received on email ID of concerned ACP and he had not recorded statement of ACP in this regard and those four boys were not interrogated by him after 07.07.2009 and no fingerprints or chance prints of accused was found at the spot.
32. PW34 Inspector Sandeep Ghai deposed that on 06.07.09 on receiving information through DD no. 25A reached the spot, where met ASI S L Bhardwaj and Ct. Sanjeev and two rooms were found locked and one dead body was found in a toilet attached with a room and near washbasin one phone number was found written with pen and four boys were also found present, Rahul, Hemant Kothari, Ramesh and Ajay and he recorded the statement of Rahul and prepared rukka and called crime team, photographer and dog squad and investigation was marked to inspector C K Sharma. He further deposed that crime team inspected the place of occurrence and dog squad also inspected the spot but no clue was found. He further deposed that articles were seized from the spot and during proceedings owner Pammi Talwar was also came and she was also examined, thereafter statements of witnesses were recorded by the IO. He further deposed that on 18.07.2009, present accused was in police custody and was identified by all four boys i.e, Rahul, Hemant, Ajay and Ramesh. He further deposed that on 20.07.2009 he joined investigation with IO and specimen handwriting and signature of accused were obtained by the IO, to tally the signatures of the accused on the forms available with the service provider and on the right hand arm of accused Anuj, "Geeta State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-24 of 72) Anuj" was also tattooed. He further deposed that on 11.09.2009 owner of institute Pammi Talwar produced one attendance register and same was also seized.
33. In cross examination deposed that when he reached the spot, PCR was already at the spot and already visited the spot prior to him and neither him nor ASI Shyam Lal conducted inquiries from PCR officials. He further deposed that he recorded statement of Rahul only. He further deposed that his presence inspector C K Sharma had not prepared any document in his handwriting and besides Rahul he recorded statement of Hemant Kothari, Ajay and one more persons present at the spot at the instructions of inspector C K Sharma. He further deposed that they had not suspected those boys after inquiry and stated that it is correct that on the hand of the deceased, mobile number of Hemant Kothari was written. He further deposed that he do not know whether socks recoverd at the spot was of Rahul and had not seen dirty clothes in the bathroom. Vol. he had not seen any clothes in the bathroom and only seen cloth washing brush and even had not seen any dirty clothes on third floor or at any other place of the building. He further deposed that it is correct that Hemant Kothari, Rahul, Ajay and another boy Ramesh hired deceased for washing their clothes. He further deposed that four boys had also given physical description of the suspected accused and he remained with inspector C K Sharma during entire night and left the spot alongwith inspector C K Sharma. He further deposed that it is correct the room State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-25 of 72) where these boys were living in the institute was found opened. He further deposed that he do not remember whether dog moved around the entire premises and sat in the room of these four boys. He further deposed that terrace of the said premises was not having any lock.
34. He further deposed that statement of Rahul got recorded at around 10 p.m. in the conference room of institute adjacent to bathroom He further deposed that statements of all the boys were recorded at the same time one by one and all the boys remained with them at the spot during entire night and no signatures of those boys were taken on pulandas and they were freed after inquiry and not called to the police station. He further deposed that he do not know whether these boys remain in touch after that day or not and he do not know whether those boys went to native place on the next day or thereafter. He further deposed that intervening night of 06/07.07.2009 he had no knowledge about accused Anuj Kumar being suspect in the present case. He further deposed that those boys were not called in police station on the day when accused Anuj Kumar Tiwari was brought to PS after arrested. He further deposed that he had recorded statement of Dipu at instance of IO who told that deceased had illicit relations with many persons and this was also confirmed by witness Sunil Kumar also . He further denied suggestion that accused was shown to those boys in PS before TIP and to fill up the lacuna the identification of those boys were recorded on 18.07.2009. He further deposed that no chanceprints of the accused were found at spot and he had not signed on State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-26 of 72) the pulandas at the spot. IO had left one security person at the spot after they left the spot but he do not remember his name.
35. PW28 SI Shyamlal Bhardwaj deposed that on 06.07.2009 received one DD no. 25A regarding one lady lying at Sainik Institute, thereafter, he alongwith Ct. Sanjeev reached the spot where he met Hemant, Rahul, Ajay and Ramesh. He further deposed that Hemant disclosed that he informed 100 number and was doing diploma over there and also stated that someone killed their maid servant, then found one lady in bathroom in dead condition and one orange colour chunni was found tied over her. He further deposed that he immediately informed SHO and duty officer, thereafter, SI Sandeep Ghai also reached at the spot. He further deposed that there were four rooms at 3rd floor and two were found locked. He further deposed that on the right hand of deceased word "Kishan" was engraved in Hindi and on the north side wall, near washbasin one no. 9919989233 was written with pen. He further deposed that Rahul was stopped by SI Sandeep Ghai and three other boys were sent on terrace and SI Sandeep Ghai made inquiries from Rahul and recorded his statement. SHO C K Sharma also came to spot. Thereafter, the case was registered and SHO called crime and dog squad through wireless and during inspection of deceased on her left palm the phone no. 9915689233 and Hemant were found written. Photographs in different angles were taken. IO prepared site plan at the instance of Rahul and further seized the article lying there and Ct. Sanjeev after registration of FIR came to spot State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-27 of 72) and handed over the rukka and FIR to IO. He further deposed that IO had examined, Rahul, Hemant, Ajay and Ramesh and their statements were recorded. Thereafter, they were freed. He further deposed that SI Sandeep Ghai examined the owner of institute viz., Pammi Talwar and S K Talwar and Pammi Talwar was not well and she was called on next day.
36. In cross examination deposed that he went to spot on his motorcycle and PCR was already there when he reached at spot, PCR remained at the spot till the arrival of SHO i.e, for around one hour. He further deposed that he found four boys of institute and made inquiries from them but not written anything. He further deposed that in his presence statement of all four boys was recorded by SHO with help of SI Sandeep Ghai. He further deposed that he had inspected the spot even prior to reaching of SHO, however, had not prepared any documents in this regard. He further deposed that when the statements of four boys were recorded, Pammi Talwar and her husband were also present. He further deposed that at that time, Pammi Talwar was also interrogated but during interrogation she did not feel well, therefore, her statement was not recorded and they have not seized any documents from institute at that time. He further deposed that four boys also give description of person who came out of room. He further deposed that no rough sketch of suspect / person was prepared and no clothes were lying in bathroom for purpose of washing. He further deposed that he had not inspected the rooms of those four boys and also do not remember whether any other member of team had inspected their State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-28 of 72) room. He further deposed that dog squad came in his presence but he do not remember whether the dog after sniffing sat into the room of those four boys and at that time two rooms were opened and two were closed and they have not tried to open the closed rooms and he do not remember whether balcony attached with that room have access to the bathroom. He further deposed that Pammi Talwar remained at the spot till 4.00 a.m. and no medical aid was provided to her during that time. And after recording of the statements, those boys were sat free at about 3.00/4.00 a.m. and denied suggestion that those four boys were detained by them in nearby hotel. He further deposed that before arrival of dog squad, statment of complainant of Rahul was recorded and statements of other three boys were recorded later on after sending of rukka and all the documents were written at spot by SI Snadeep Ghai and no public witness from outside was called to join the proceedings. He further deposed that neither Pammi Talwar nor those boys were made witness to the seizures. He further deposed that seal was handed over to him by SHO but no memo in this regard was prepared. He further denied entire prosecution story is fabricated in connivance with Pammi Talwar.
Deposition of doctors, nodal officers and Metropolitan Magistrate:
37. PW11 Dr. Raghvender Kumar conducted the postmortem of deceased on 07.07.2009 and found the cause of death asphyxia due to ante mortem strangulation by ligature. In cross examination he deposed that they have not done any finger test on deceased and also stated he cannot say whether State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-29 of 72) police made any query from them to determine whether rape was committed on deceased or not. He also deposed that they had not conducted anything in postmortem to infer rape. Vol., that they had taken vaginal swab to determine whether sexual intercourse committed before death or not and also taken blood sample of deceased and blood sample was sent to forensic lab for determination of blood group but do not know the result of blood group. He further deposed that by seeing the nature of injuries on deceased it cannot be confirmed whether it was caused by one person or more than one person. He further deposed that they did not find anything in nails of deceased and also not seen any external bleeding on body of deceased. And also did not notice the blood on clothes of deceased.
38. PW15 Dr. Shiva Prasad examined accused Anuj Tiwari on 10.07.09 and found nothing on examination to suggest that person was not capable of performing sexual intercourse under normal circumstances and handed over blood in gauze 3 ml of blood for DNA finger print to police alongwith sample seal. In cross examination he stated that it is correct that he had not conducted any test to determine any internal injury on the body of accused.
39. PW32 Dr. Dhruv Sharma deposed that on examining the sealed parcels he found blood group B on Ex. B.
40. PW23 Tarun Khurana Nodal Officer Bharti Airtel brought CDR of mobile no. 9818486173 for the period from 01.07.09 to 08.07.09 which is State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-30 of 72) in the name of one Alok Singh s/o Ram Lakhan Singh. And further brought CDR of 9971737785 for period of 01.07.09 to 08.07.09 in the name of Kamlesh. In cross examination he deposed that all call details of subscribers are saved in servers and not in memory of his computer. He further deposed that it is correct that there are number of servers owned by service providers on different locations. He further deposed that it is correct that record do not bear any server number from where CDR are obtained.
41. PW24 M.N. Vijayan Nodal Officer Tata Tele services Ltd. brought the CDR record of mobile number 9213909227 for the period 01.03.08 to 08.07.09 and said phone was registered in name of Angad Singh Bedi. He further brought computer generated statement of DEL No. 9211881713 from 01.03.09 to 08.07.09. and further stated that print out of CDR was taken by him from the computer. In cross examination, stated that they do not keep hard copy and soft copy preserved in computer on his work station. He further deposed that as per their record phone no. 9211881713 was issued in name of Anuj Kumar. And documents Ex. PW20/D of his CDR is not having any call details. He further deposed that it is correct that CDR's which he produced do not have any identification of server from where CDR are extracted.
42. PW30 Israr Babu, Nodal Officer, Vodafone deposed that as per record 9873231275 registered in the name of Anuj Kumar S/o Sudarshan Lal and in cross examination denied that he is not authorized to issue certificate State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-31 of 72) Ex. PW30/E
43. PW27 Shri Devender Kumar Jangala deposed that on 14.07.2009, he conducted TIP of accused Anuj, however, accused refused to join TIP proceedings. In cross examination stated that accused did not tell him any reason for refusal of TIP.
Deposition of other police officials:
44. PW5 ASI Kishan Kumar received a call at around 8.50 pm from PS regarding lying of dead body of lady at Institute near Sai Market. And also deposed that around 11 pm he registered FIR on the basis of rukka sent by SI Sandeep through Ct. Sanjeev.
45. PW6 SI Mahesh Kumar prepared scaled site plan of the spot. And in cross examination stated that the bathroom where dead body was lying can be approached through balcony also. And from training room one has to pass from balcony in order to enter the bathroom.
46. PW7 Ct. Archana received PCR call at around 8.52 pm on 06.07.09 from mobile no. 9015689233.
47. PW8 Ct. Udai Chand took accused Anuj at AIIMS hospital on the instructions of IO C K Sharma for examination.
48. PW9 SI Vijay Pal Singh Kasana being Incharge of crime team reached spot at around 11.45 pm on the night of 06.07.09 and inspected the site and Ct. Girdhar took the photographs of spot from various angles and gave his report Ex. PW9/A. In cross examination stated that he made State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-32 of 72) entries in DD register while leaving his office however he do not remember the DD number and nor handed over the said DD entry to IO. He further deposed that his statement was recorded at the spot. He further stated that his statement was recorded by Inspector C.K. Sharma in his own handwriting. He further deposed that he had not made any log entry in official register and remained at spot for 1 to 1.5 hours. Further stated he do not remember whether ACP, DCP were present at the spot or not and also do not aware whether any senior official came to spot during his stay. He further deposed that he handed over report to IO on very same day. He further stated that dog squad reached spot in his presence. He further deposed that it is correct that in his statement Ex. PW9/DA it is mentioned that he will hand over inspection report lateron.
49. PW16 HC Laxmi Narain MHC(M) deposed about depositing of case property at malkhana. In cross examination stated that it is correct that there is no signature available of depositor of case property in malkhana register. He further deposed that he had not taken signature of HC Vijay while handing over pulanda however taken his signature on register no 21. He further deposed that no seal of the officer concerned was deposited in malkhana alongwith case property. He further deposed that he had mentioned the details of pulanda in register no.21 not in register no.19.
50. PW18 HC Raj Kumar being member of crime team took several photographs of dead body but could not find any chanceprint at spot.
51. PW20 Ct. Sanjeev reached the spot alongwith ASI Bhardwaj and found State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-33 of 72) the dead body of lady lying inside bathroom and 34 boys were also present there. And after sometime Inspector Sandeep Ghai and C.K. Sharma also reached the spot and Inspector Sandeep Ghai recorded statement of Rahul and prepared rukka and thereafter he went to PS with rukka for registration of FIR and went to mortuary of AIIMS alongwith dead body. In cross examination, he deposed that when they reached at spot no public person were found gathered however 23 boys who were staying were present and PCR officials were also present. He further deposed that in his presence only statement of Rahul was recorded by SI Sandeep Ghai. And statement was recorded at 3rd floor of house on terrace. He further deposed that he do not know whether SI Sandeep Ghai or Inspector C.K. Sharma made any inquiries from PCR officials. He further deposed that site plan as well as no seizure proceedings were conducted in his presence.
52. PW22 Ct. Girdhar deposed that he took photographs of deceased and found Kishan written on right hand of deceased and on left hand Hemant was written and phone number was also written on wall. In cross examination he deposed that they came to spot in Government vehicle but he do not know about log book and remained at spot for around 45 minutes. He further deposed that whether any DCP,ACP or dog squad reached at spot in their presence.
53. PW31 Ct. Satender Kumar as dog handler on 06.07.2009, he went to spot at around 11.00 p.m., where one found one female body lying in State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-34 of 72) bathroom and chunni tied around her neck and dog smelled the chunni, thereafter, sat in the room of institute only and could not go further.
54. PW33 Inspector Bijender Singh deposed that on 28.09.2009 he received present FIR for further investigation and had written letter to Nodal Officer, Airtel, Vodafone and Tata to preserve the call details relating to phone no. 9818486173 and no. 9971737785 and further regarding mobile no. 9213909227 and 9211881713 and further 9873231275 and after completion of investigation filed the chargesheet.
55. Accused Anuj Kumar Tiwari in his statement u/s. 313 Cr.P.C. denied all the incriminating circumstances put to him and stated that he was shown to the four boys in police station, therefore, he refused the TIP and further police has manipulated the attendance register in connivance with owner Pammi Talwar. Accused further stated in his statement u/s. 313 Cr.P.C. that he was lifted from his house at Hardoi by police and was implicated in the present case because he was having salary dispute with owner Ms. Pammi Talwar but not opted to lead defence evidence.
Material Exhibits
56. Ex. PW5/A is DD no. 25A recorded at police station Lajpat Nagar on information received through PCR at around 8.50 p.m. regarding lying of one lady at Lal Sai Market, Lajpat Nagar. Ex. PW34/A is DD no. 27A recorded at 9.00 p.m., whereby SI Sandeep Ghai proceeded towards the spot. Ex. PW4/A is statement of Rahul pursuant to which rukka Ex. State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-35 of 72) PW34/B was prepared at around 10.45 p.m. and FIR Ex. PW5/B registered at around 11.00 p.m. Ex. PW34/C is site plan of place of occurrence. Ex. PW6/A is scaled site plan of the place of occurrence. Ex. PW4/B is seizure memo of exhibits lifted from the spot and the same is witnesses by SI Sandeep, ASI S L Bhardwaj and Rahul. Ex. PW20/A is seizure memo of articles taken out from dead body at mortuary. Ex. PW35/B is death report. Ex. PW35/C is application for conducting postmortem. Ex. PW20/B is seizure memo of exhibits of viscera and other things, given after postmortem of deceased. Ex. PW17/A and Ex. PW19/A are statement of Ram Kumar Verma and Anil Verma regarding identification of dead body. Ex. PW15/A is MLC of accused Anuj Kumar Tiwari . Ex. PW11/A is postmortem report of deceased showing cause of death as asphyxia due to antemortem strangulation by ligature. Ex. PW12/A is arrest memo of accused showing his place of arrest as bus stand, Shabad, U.P. Ex. PW21/A is personal search memo of accused. Ex. PW21/B is disclosure statement of accused. Ex. PW24/B is application form of Tata Indicom of mobile number 9213909227 in the name of one Angad Singh dated 12.02.2006. Ex. PW34/D is seizure memo of attendance register and Ex. PW35/X1 to Ex. PW35/X13 are the sheets of attendance registered. Ex. PW27/B is TIP proceedings of accused Anuj Kumar Tiwari, in which he refused to participate. Ex. State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-36 of 72) PW14/A is memo of identification of accused by Rahul, Hemant, Ramesh and Ajay Singh on 18.07.09 in presence of SI Sandeep Ghai.
57. Ex. PW33/A is request made by IO to Nodal Officer, Airtel for preservation of CDR of mobile no. 9818486173 and 9971737785. Ex. PW33/D is letter issued by IO to Angad Singh Bedi regarding use of mobile connection number 9213909227 in his name by one Vipin Tiwari, who handed over the same to his brother Anuj Kumar Tiwari and accused was using the same from 01.07.2009 to 06.07.09. Ex. PW33/B is letter written by IO to Nodal Officer, Tata Teleservices to preserve the CDR of mobile number 9219309224, 92111881713 from 16.05.2009 to 06.05.2009. Ex. PW33/C is letter written by IO to Nodal Office, Vodafone regarding preservation of mobile no. 9873231275 from 01.7.2009 to 06.07.2009.
58. Ex. PW9/A is crime team report alleged to be prepared between 11.45 p.m. to 12.30 a.m. on the intervening night of 06/07.07.2009. Ex. PW9/DA is statement u/s. 161 Cr.P.C. of SI Vijaypal Singh Kasana. Ex. PW10/DA is statement of Hemant Kothari. Ex. PW14/DA is statement of Ramesh Chand u/s. 161 Cr.P.C. Ex. PW25/A is statement of Sunil Kumar u/s. 161 Cr.P.C. Ex. PW12/B is statement of Vipin Kumar recorded u/s. 161 Cr.P.C. Ex. PW32/A and Ex. PW32/B are FSL report and Serological report by which blood in gauze was found to be of B group and further blood was to be of human on lady's kurta, salwar, underwear but no reaction was found and semen or saliva could be State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-37 of 72) detective on exhibits. Ex. PW7/A is PCR form. Ex. PW22/P1 to Ex. PW22/P10 are photographs of the deceased lying in the bathroom.
59. Ex. PW30/A is application form of Vodafone mobile no. 9873231275 issued in the name of accused Anuj Kumar dated 17.09.2008. Ex. PW30/B is photocopy of driving license. Ex. PW30/D1 to Ex. PW30/D3 are details of mobile phone no. 987323275 from 01.07.2009 to 07.07.2009. Ex. PW30/E is certificate u/s. 65B regarding CDR of mobile no. 987321275. Ex. PW30/F is cell ID chart (of tower location). Ex. PW23/A1 to Ex. PW23/A6 is CDR of mobile no. 9818486173 for period 01.7.2009 to 08.07.2009 and the customer application no. Ex. PW23/B showing above mobile number in the name of one Alok Singh S/o Shri Ram Singh. Ex. PW23/E1 to Ex. PW23/E2 are CDR of mobile no. 9971737785 issued in the name of Kamlesh w/o Ram Kishan vide application form Ex. PW23/F. Ex. PW24/A1 to Ex. PW23/A38 are CDR record of mobile no. 9213909227 from a period from 01.03.2009 to 08.07.09 registered in the name of one Angad Singh Bedi vide application form Ex. PW24/B. Ex. PW24/D is CDR record of mobile no. 92111881713 issued in the name of Anuj Kumar with certificate Ex.PW25/B. Ex. PW16/A from P 1 to P 4 is the copy of register no. 19 and Ex. PW 16/B is the deposit entry of personal search of accused Anuj Tiwari on 09.07.2009. Ex. PW16/D is the entry of deposit of attendance State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-38 of 72) register on 11.07.2009 by Inspector C. K. Sharma.
60. Ld. counsel for the accused submitted that accused is falsely implicated in the present case. Entire prosecution case is based on circumstantial evidence and prosecution unable to prove any of the incriminating circumstance conclusively against the accused. Ld. Counsel for the accused submitted that the main circumstance relied by the prosecution evidence is the last seen evidence of seeing of the accused at the institute as he opened the bolt of the 3rd floor and went out of the institute. Ld. Counsel for the accused submitted that for proving this circumstance, prosecution has examined PW4 Rahul, PW10 Hemant Kothari, PW13 Ajay and PW14 Ramesh the trainees of the institute. Ld. Counsel for the accused submitted that as per prosecution case all these witnesses had seen the accused while coming out of that floor after the incident and these witnesses also deposed before the court that they have seen the accused while leaving the institute. Ld. Counsel for the accused submitted that however PW10 in cross examination categorically stated that he had not seen the accused while opening the door and only PW4 Rahul had seen him. Ld. Counsel for the accused submitted that this averment of PW10 completely falsified all these 4 witnesses and it clearly shows that nobody has seen the accused at the spot. Ld. Counsel for the accused submitted that these all witnesses are tutored witnesses and deposed under pressure of police and they have categorically stated in their testimonies that they were illegally detained by the police after the incident for 45 State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-39 of 72) days however, the same is denied by IO PW35 and SI Sandeep Ghai PW34. Ld. Counsel for the accused submitted that therefore these 4 witnesses are not found reliable for believing circumstance of last seen. Ld. Counsel for the accused submitted that relied upon the judgment of Delhi High court in case titled, "Sonu Arora Vs. State, 2010 (IV) JCC 2614" for the proposition that if the contradiction relates to main incident forming the core part of the testimony then it seriously effect the credibility and truthfulness of the witness. Ld. Counsel for the accused submitted that thus in view of this judgment, the testimonies of these four witnesses cannot be relied upon for proving the last seen evidence.
61. Ld. Counsel for the accused submitted that there are various other discrepancies in the prosecution case. Ld. Counsel for the accused submitted that PW1 Pammi Talwar owner of the institute was present at the spot with the police officials however, the police official had not recorded the statement on that night and recorded her statement on the next day on the ground that she was not in a position to give the statement on that night because not feeling well. Ld. Counsel for the accused submitted that this reason itself is not sufficient to explain the delay in recording the testimony of Pammi Talwar. Ld. Counsel for the accused submitted that prosecution even not able to prove any motive of accused to kill the deceased and prosecution could not even prove the illicit relations between accused and deceased. Ld. Counsel for the accused submitted that prosecution in this regard relied upon the statement of PW2 Alok and State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-40 of 72) PW25 Sunil Kumar driver of the institute but none of them have supported the prosecution on this factum.
62. Ld. Counsel for the accused submitted that the place of incident was institute and no other person from institute was made the witness and number of persons were residing on that floor therefore, the prosecution not able to prove that only the accused were present on the 3rd floor at the relevant time, thus the circumstance of last seen cannot be read against the accused and in this regard relied upon the judgment of Delhi High court in "Ashok Kumar Vs. State of NCT of Delhi 2012 (1) JCC 59".
63. Ld. Counsel for the accused submitted that prosecution tried to connect the presence of accused on the basis of mobile number 9213909227. Ld. Counsel for the accused submitted that this mobile number do not belong to accused and prosecution unable to prove that accused was using this mobile number. Ld. Counsel for the accused submitted that as per prosecution case this mobile number belongs to one Angad but that Angad is not examined before the court. Ld. Counsel for the accused submitted that PW12 Vipin Tiwari and PW3 Pramod Rathore also not supported the prosecution case over the possession/ using of that mobile phone by accused Anuj.
64. Ld. Counsel for the accused submitted that accused was shown to be arrested from Hardoi but no local police was informed in this regard before and after his arrest. Ld. Counsel for the accused submitted that even the police officials who went to arrest the accused at Hardoi could State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-41 of 72) not tell the way of Hardoi neither any record is filed to show that they went to Hardoi in private car . No statement of driver was recorded in this regard. Ld. Counsel for the accused in this regard relied upon the judgment of Delhi High court in "Anil Kumar Goswami Vs. State, 2012(1)JCC 47" that when no independent witness was joined by IO at the time of recording the disclosure statement of accused or at the time of effecting of recovery then bare testimonies of police officials cannot be relied upon.
65. Ld. Counsel further submits that identification of the accused by these witnesses cannot be relied upon because accused was shown to these witnesses prior to holding of TIP and this fact is clear from their deposition in which they stated that they were retained in illegal detention and PW10 in cross examination stated that they were released from illegal detention after apprehension of the accused. Ld. Counsel for the accused submitted that thus no adverse inference could be drawn from refusal of TIP by the accused, thus substantive evidence of identification in the court becomes valueless.
66. Ld. Counsel for the accused also pointed out number of other discrepancies in the prosecution case by stating that no chanceprints of the accused was found at the spot. Ld. Counsel for the accused submitted that statement of landlords where the witnesses went to search the house was not recorded. Ld. Counsel for the accused submitted that even the identity cards that these witnesses were studying in institute were not filed State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-42 of 72) on the record. Ld. Counsel for the accused submitted that these witnesses were not made witnesses to the recovery memos. Ld. Counsel for the accused submitted that thus on overall consideration prosecution unable to prove even single circumstance against accused conclusively.
67. Ld. Addl. PP on the other hand submitted that entire prosecution case is based on circumstantial evidence and the entire evidence is to be appreciated in the light of surrounding and attending circumstances associated with offence. Ld. addl. PP submits that all the four witnesses have correctly identified the accused and minor contradictions regarding the non telling of the name of the landlord etc. have no bearing on the facts in the present case.
68. Ld. Addl. PP submits that the identification of the accused cannot be doubted at all as complete description of assailant also given in FIR even before the name of accused came in the picture and further the said description also matched with the physical traits of the accused. Ld. Addl. PP submits that none of the witnesses of last seen was suggested that they were shown the accused before TIP and accused himself refused TIP and even not stated any reason for his refusal, therefore adverse inference is to be drawn against the accused.
69. Ld. Addl. PP submits that prosecution proved that deceased was using mobile number 9873231275 and accused was using mobile number 9213909227 and on the day of incident, the location of these mobiles found to be in the vicinity of the Lajpat Nagar area where the spot was State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-43 of 72) located. Ld. Addl. PP submits that there is prompt recording of FIR and further the testimony of all those boys is completely credible as they given the detailed description of the incident and further found present when the police reached the spot and also informed the police promptly. Ld. Addl. PP submits that prosecution further proved the illicit relations between accused and deceased and because of this reason he was removed from service, further despite this he was maintaining relations with the deceased. Ld. Addl. PP submits that prosecution has proved the last seen circumstance beyond reasonable doubt and there is complete proximity between the time and place of incident in explaining the same and only this circumstance is sufficient to convict the accused. Ld. Addl. PP submits that accused had not rebutted this circumstance and prosecution able to prove its case beyond reasonable doubt.
70. Arguments heard. Record perused.
71. Brief background of the prosecution case is that deceased Geeta was working as a maid servant in Inflight Training Institute run by PW1 Pammi Talwar at Lajpat Nagar. Accused Anuj Kumar Tiwari also worked as driver of PW1 Pammi Talwar but was removed from service some months prior to the date of incident on the ground that he was seen touching deceased Geeta by PW1 Pammi Talwar. As per prosecution case deceased Geeta was having illicit relationship with accused Anuj Kumar Tiwari and also with PW2 Alok Kumar Singh @ Dipu, driver of PW1 Pammi Talwar and S K Talwar at the time of incident.
State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-44 of 72)
72. According to prosecution at the time of incident, deceased Geeta was using mobile no. 9873231275 which was issued in the name of accused Anuj Kumar Tiwari. However, he handed over the same to Geeta for using and she was using the same since long and accused Anuj Kumar was using mobile no. 9213909227, though issued in the name of one Angad, which during investigation found to be illegally obtained by misusing the identity papers of Angad. Though, prosecution could not connect the accused with the said illegality in issuance of that mobile phone but as per prosecution case, the said mobile phone is being used by accused Anuj Kumar Tiwari. On the day of incident i.e, 06.07.2009 he had communication with deceased from this mobile to the mobile of deceased i.e, 9873231275, 34 times during the day and lastly both talked at around 6.46 p.m. and thereafter, accused Anuj Kumar Tiwari reached the said institute and meet deceased Geeta and at that time when accused met Geeta she was found talking with PW2 Alok Singh @ Dipu from her mobile no. 9873231275 on the mobile of Alok Kumar Singh (PW2) at around 6.59 p.m. and that call lasted for around 195 seconds. As per prosecution story because of this accused Anuj Kumar Tiwari got annoyed, thereafter, quarrel took place between two and accused then strangulated deceased Geeta with her chunni. Accused also called his bhabhi Neeta at mobile no. 9971737785 at around 7.15 p.m., which is in the name of one D Kamlesh however used by one Pramod Kumar Rathore (PW3) and that call lasted for around 158 seconds. As per prosecution State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-45 of 72) case the last call on the mobile of the deceased was at around 6.59 p.m. with mobile of Alok Kumar Singh (PW2) and last call on the mobile no. 9213909227 of accused Anuj Kumar Tiwari was at around 7.15 p.m. which lasted for around 158 seconds and as per cell ID location records when the last calls at those relevant times were made, both these mobile phones were found in the vicinity of Lajpat Nagar area.
73. Further as per prosecution case the accused Anuj Kumar Tiwari after strangulating deceased Geeta stretched her to the bathroom and when Rahul (PW4), Hemant Kothari (PW10), Ajay Singh (PW13) and Ramesh (PW14) came on that floor and knocked at the main door at around 8.00 p.m., then accused Anuj Kumar Tiwari opened the door and told these boys that deceased is washing clothes in the bathroom, thereafter, went downstairs. These, witnesses who were student of the institute then saw deceased lying inside the bathroom. Thereafter, PW10 Hemant Kothari called Pammi Talwar and on her instructions called police at 100 number. Then PCR reached the spot and local police also arrived at the spot and inspected the dead body. Thereafter, the statement of PW4 Rahul was recorded in which he alleged to have seen the accused and also given the description of the accused, pursuant to which rukka was prepared and FIR was registered.
74. According to prosecution PW1 Pammi Talwar also reached the spot after getting the information in the night and remained associated with investigation till 3.00/4.00 a.m in the morning. However, as she was not State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-46 of 72) feeling well her statement was not recorded on that night. Thereafter, she came back at police station on 07.07.2009 and given the statement that deceased was using the mobile no. 9873231275 and on getting CDR details it was found that it was registered in the name of accused Anuj Kumar Tiwari. Pammi Talwar (PW1) also informed that accused Anuj Kumar Tiwari was her previous driver who was removed being friendly with deceased. Kishan Kumar (PW29) husband of deceased Geeta also confirmed to police that deceased Geeta was using mobile no. 9873231275.
75. On searching the call details of deceased Geeta police found number 9213909227 in the name Angad and a call was made from this mobile no. to the mobile of Pramod Kumar at around 7.15 p.m., who stated that from this no. accused Anuj called him to talk to his bhabhi Neetu as his brother Vipin was staying in the adjacent room. Thereafter, police made inquiries from Vipin Tiwari, brother of the accused, who told that accused met him in the night at around 10.00 p.m., and went to Hardoi without disclosing anything on the night of 06.07.09. Thereafter police alongwith Vipin Tiwari went to Hardoi and arrested the accused Anuj Kumar Tiwari and brought him to Delhi and produced before the court and date for his TIP was fixed for 14.07.2009 at Tihar Jail. However, accused refused to participate in the TIP. Then during PC remand on 18.07.09, accused was identified in police station by all four eye witness i.e, Rahul (PW4), Hemant Kothari (PW10), Ajay Singh (PW13) and Ramesh (PW14). State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-47 of 72) Accused during interrogation disclosed that he had destroyed both his mobile bearing no. 9213909227 and also mobile no. 9873231275 of deceased Geeta while going to Hardoi. Therefore, both the mobile phones could not be found during the investigation.
76. Main thrust of prosecution rests upon the circumstance of last seen as Rahul (PW4), Hemant Kothari (PW10), Ajay Singh (PW13) and Ramesh (PW14) saw the accused on the day of incident while coming out of the institute soon after murder and the mobile records of both deceased and accused showing their presence at the institute, further their talking with each and with PW2 Alok Singh @ Dipu.
Last seen circumstance of seeing of accused Anuj Kumar Tiwari by Rahul (PW4), Hemant Kothari (PW10), Ajay Singh (PW13) and Ramesh (PW14) on the day of incident at around 8.00 p.m. while coming out of the main gate at third floor of the said institute soon after murder
77. PW4 Rahul in his statement Ex. PW4/A to police stated that on the day of incident at around 5.30 p.m., he had a talk with deceased Geeta regarding cleaning of their clothes. When he went downstairs to take water he asked her to clean their clothes as they are going to see a room for rent at Sriniwapuri area and handed over the key of their room to Geeta and asked her to keep the keys behind the poster after cleaning the same. Thereafter, they all went from there and came around at 8.00 p.m. State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-48 of 72) and when they could not get the keys behind poster, they went upstairs and found the main door closed from inside thereafter, knocked the same and after 15 minutes it was opened by one person of medium built, clean shaven and of medium height, who told them that deceased Geeta was washing clothes, thereafter, went downstairs and vanished away from the institute. Then, saw dead body of deceased Geeta lying inside the bathroom. Thereafter, immediately called all the three associates and then Hemant Kothari called Pammi Talwar and also PCR.
78. PW4 Rahul in his testimony also deposed on the same lines. PW10 Hemant Kothari also deposed that on that day they all went to see the room on rent at Sriniwas puri and came at back 8.00/8.15 pm. And on not finding keys behind the poster and Rahul knocked at main gate but no response came out from inside, then accused came out of the room and told that Geeta is washing the clothes. PW13 Ajay Singh also deposed that at around 6.00 p.m. they went to see the rented room at Sri Niwas Puri and requested deceased Geeta to wash their clothes and came back at around 8 pm and on knocking the door for about 15 minutes accused opened the same, and after saying that Geeta was washing the clothes went away. PW14 Ramesh Chand also deposed that at around 5 pm they went to Sri Niwas Puri for seeing the room and gave keys of room to Geeta for washing their clothes and when they came at around 8 pm found the main entrance door closed from inside then knocked the door and accused opened the same and said that Geeta washing clothes then went State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-49 of 72) down the stairs and found Geeta lying in the bathroom and no third person was found on that floor.
79. All these four witnesses are consistent to the fact that they all went to see a rented room in Sri Niwas Puri and PW4 gave keys of their room to Geeta for washing their clothes and came back at around 8/8.15 pm and on knocking the door saw the accused coming out from the main gate and told that deceased was washing their clothes. Nothing was suggested to these four witnesses in their cross examination that they had not seen the accused in the manner stated by them or had not been told to them by accused that deceased Geeta was not washing clothes inside the room. These witnesses were also not cross examination on the aspect that there was no such bolting from inside of main gate at third floor. As per site plan prepared by the prosecution of third floor, there is only one entrance gate to enter that floor.
80. Defence counsel tried to discredit these witnesses on ancillary grounds on the factum that none of the witnesses could state the particulars of the rented room, they had seen in Sri Niwas Puri. PW4 Rahul in cross examination stated that they have got the residential accommodation on that day at Sri Niwas Puri however, PW 13 Ajay Singh stated that they have not got any residential accommodation on that day. Ld. Defence counsel also tried to discredit these witnesses on the ground that none of these witnesses could tell the name of the landlord or no inquiry was made from the landlord from Sri Niwas Puri whether in fact these boys State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-50 of 72) went to Sri Niwas Puri for seeing the room on rent.
81. As per testimony of all these four witnesses they had all seen the accused while getting down from the Institute, however, PW10 Hemant Kothari in cross examination stated that on the day of incident only Rahul had seen accused and he had not seen the accused at that moment. Whereas PW13 Ajay Singh stated that they all were present when accused opened the door. Thus, PW10 created some sort of doubt on the factum whether all has seen accused while coming out. However, effect of this anamoly is to be evaluated on considering the entire facts and circumstances of the case lateron.
Factum of prompt recording of FIR mentioning therein description of the accused and also preparation of sketch of the accused at the instance of these four witnesses:
82. According to statement of Rahul, Hemant Kothari, Ajay Singh and Ramesh, they reached 3rd floor at around 8/8.15 pm and found the main gate of the 3rd floor bolted from inside. Thereafter, on knocking for about 15 minutes, it was opened by accused Anuj and accused after telling them that deceased was washing clothes in the bathroom went downstairs and vanished from the spot. Hemant Kothari telephoned Pammi Talwar and Pammi Talwar then instructed them to call PCR, thereafter, PCR was called and as per PCR form and statement of Ct. Archna PW7, PCR received the call about this incident at around 8.52pm from mobile no. State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-51 of 72) 9015689233 (Hemant Kothari). Immediately the police station was informed and DD no. 25A in this regard was recorded pursuant to which SI SL Bhardwaj alongwith Ct. Sanjeev reached the spot and thereafter on receiving DD no.27A, SI Sandeep Ghai also reached the spot and after sometime SHO/IO CK Sharma also reached the spot. These all circumstances indicates that information of the incident was promptly sent to the police and all the four boys were found at the spot and not tried to abscond from there and immediately informed Pammi Talwar (PW1) the owner of institute about the incident on seeing the dead body.
83. The presence of those 4 boys and immediate information to police and consequent mentioning of description of the accused in FIR, indicates that they have seen one person leaving out the main gate and their testimony also confirmed the fact that accused opened the door after 1015 minutes of knocking by them and nobody else found inside on that floor after opening of the door except the dead body of the deceased.
84. Ld. counsel for the accused vehemently submitted that these four boys are detained by the police illegally for 45 days and during that detention the sketch of the assailant was also prepared at instance of these boys. However, IO CK Sharma and PW34 SI Sandeep Ghai denied of any preparation of sketch at the instance of these boys and also stated that they had freed these boys from the spot after recording their statement in the morning of the incident at around 3 to 4 am. Ld. Counsel submits that PW4 Rahul , PW10 Hemant and PW14 Ramesh categorically stated in State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-52 of 72) their depositions that they were detained by police for 45 days after the incident.
85. Perusal of the statement of PW4 Rahul, PW10 Hemant Kothari and PW14 Ramesh Chand clearly shows that these witnesses were detained by police for 34 days after incident and police also tried to prepare the sketch of assailant from them on 07.07.2009. Though, IO CK Sharma PW35 and SI Sandeep Ghai PW34 denied of any detention of these boys and preparation of sketch of the assailants at their instance, but perusal of police file shows that these boys were detained for preparation of sketch of the assailant and sketch of assailant was also prepared at their instance on 07.07.09 by the police.
86. No doubt IO (PW35) and SI Sandeep Ghai (PW34) wrongly stated before the court that they have not detained these boys for preparation of sketch of the assailant, but testimony of the boys as discussed shows that they were detained for preparation of sketch and sketch was also found on the police file. However, this instead of having any adverse affect on prosecution case, strengthens the prosecution case from the perspective that these boys had seen the assailant while coming out of the main gate of third floor and this fact also reinforces the veracity of statement of PW4 Rahul given in FIR and also over the fact that Rahul had rightly described the assailant and the built of accused Anuj Tiwari also appears to have been matched with the description mentioned in FIR. Therefore, on overall appreciation though the police tried to conceal this fact of State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-53 of 72) illegal detention of these boys and preparation of sketch at their instance, however, this circumstance of preparation of sketch and detention of those boys for preparing sketch itself shows that they have seen the assailant in the manner stated in the FIR. Further description as mentioned in FIR somehow appears to be matching with the physical appearance of the present accused.
Circumstance of identification of accused Anuj Tiwari:
87. Ld. Counsel for the accused vehemently argued that accused Anuj Tiwari was shown to those boys before conducting of TIP and this fact is well corroborated from the fact as those boys were released from illegal detention by police after apprehension of accused Anuj Tiwari. Hence, no adverse inference could be drawn against accused for refusal to participate in TIP. And further the showing of the accused before TIP also makes the substantive evidence of these four boys of identifying the accused in court valueless.
88. According to prosecution case accused was arrested from Hardoi on 09.07.09 and produced before the local court at Delhi on 10.07.2009 in muffled face and thereafter sent to judicial custody and his TIP proceedings were posted for 14.07.2009 and thereafter on 14.07.2009 accused Anuj Tiwari refused to participate in TIP proceedings. Sh Devender Kumar Jhangla, Ld. MM (PW27) has conducted the TIP and as per TIP proceedings accused simply refused to join the TIP and there is nothing stated by him at the time of refusal that he was shown to the State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-54 of 72) witnesses. PW27 Sh Devender Jhangla (MM) also in cross examination stated that accused did not tell any reason for refusal for TIP therefore, from TIP proceedings it cannot be inferred that accused raised a plea of showing to the witness by the police before TIP. PW10 Hemant Kothari, PW4 Rahul and PW14 Ramesh though stated in their depositions that they were illegally detained but nobody nowhere stated that they were shown the accused before TIP. Though, PW10 Hemant Kothari stated that they were released from illegal detention after apprehension of the accused however, it is nowhere suggested to PW4 Rahul, PW10 Hemant Kothari, PW13 Ajay and PW14 Ramesh that they were shown the accused while they were in illegal detention. These four boys categorically stated that they were called by police on 18.07.09 again and in PS they identified the accused person.
89. Thus, from the testimony of these four witnesses i.e, PW4,10,13 and 14 it cannot be inferred that they were shown the accused prior to TIP proceedings and this circumstance coupled with the circumstance that in TIP proceedings accused Anuj Kumar Tiwari had not even raised a plea that he was shown to the witnesses prior to the TIP, in these circumstances mere on the point of illegal detention of these witnesses it cannot be inferred that accused was shown to them before TIP. Defence counsel though gave suggestion to IO (PW35) and SI Sandeep Ghai (PW34) regarding showing of accused to these boys before TIP however, no such suggestion was given to those boys i.e, PW4, 10, 13 and 14 and further State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-55 of 72) raised this plea in 313 Cr.P.C but this is too late thus adverse inference is to be drawn against accused for non joining TIP.
Circumstance of using of mobile no. 9873231275 by deceased Geeta:
90. As per testimony of PW1 Pammi Talwar deceased Geeta was working as maid servant in their institute and using above said mobile number and PW29 Sh Kishan Kumar husband of Geeta also deposed that she was maintaining above said mobile phone i.e, 9873231275. Mobile records also shows that on the day of incident she was talking with PW2 Alok Kumar Singh @ Dipu from her mobile number to mobile of Alok Kumar Singh @ Dipu (PW2) i.e, 9818486173, CDR details shows that on the day of incident i.e, 06.07.09 she had a talk with PW2 at around 6.59 pm in the evening and prior to that she had a talk with PW2, 3 times on 01.07.09, 8 times on 02.07.2009, one time of 03.07.2009, 5 times on 04.07.2009, once on 05.07.09 and 4 times on 06.07.09 i.e, the day of incident and she had a last call with PW2 at around 6.59pm. The said mobile phone as per record in possession of Geeta is also found to be in name of Anuj Kumar Tiwari and Anuj had provided this mobile phone to deceased Geeta.
91. The last calls from these mobile phones as per prosecution case is on the mobile phone of PW2 Alok Singh and accused Anuj Tiwari on mobile nos. 9818486173 at around 6.59 pm and 9213909227 at around 6.46pm. Both these times the cell ID record of this mobile number shows that she was present in Lajpat NagarII area and this also confirms the factum that State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-56 of 72) she was making calls while she was present in Institute which was in Lajpat Nagar area.
92. Therefore, on overall appreciation of this circumstance, prosecution able to prove that deceased was using this mobile number and interacted with PW2 Alok Singh and accused Anuj on mobile number 9818486173 and 9213909227 on the day of incident and prior to day of incident quite frequently.
Circumstance of using of mobile number 9213909227 by accused Anuj Kumar Tiwari:
93. According to prosecution accused Anuj Kumar Tiwari was using above said mobile number and the mobile number (i.e, 9873231275) which was in his name he had given to deceased Geeta and mobile call records clearly shows that there is a fair amount of interaction between the two vide these two numbers. As per prosecution case this number is found to be in the name of one Angad Singh however, that Angad Singh during inquiry stated that he do not have this mobile number and also do not know how this mobile number was allotted on his ID proofs. This itself shows that this mobile number is allotted on wrong ID proofs but prosecution unable to connect the accused with providing of the illegal proofs for taking this mobile number. However, as per prosecution case this mobile number was taken by Vipin Tiwari PW12 brother of the accused Anuj Tiwari and handed over for use to Anuj Tiwari.
94. Prosecution for proving this circumstance that this mobile number State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-57 of 72) 9213909227 used by accused examined PW3 Pradeep Kumar Rathore. As per prosecution story accused lastly called from the place of incident from this mobile to Pramod Kumar Rathore (PW3) on his mobile number 9971737785 at around 7.15 pm for talking to his bhabhi Neeta i.e, wife of Vipin Tiwari his brother, residing as neighbour of Pramod Kumar Tiwari and this call lasted around 158 seconds and as per cell ID chart this mobile phone at that time located in the area of Okhla phaseII and the tower of Tata cellular of this mobile number do not lie in Lajpat NagarII and Lajpat Nagar calls also located through Okhla PhaseII tower.
95. PW3 Pramod Kumar Rathore though stated that he received a call at that time from mobile no. "9227" but unable to tell the complete mobile number i.e, 9213909227. And further stated that this belongs to Vipin Tiwari, though resiled from statement that this number used by Anuj Tiwari or of receiving any call at around 7.15 pm on the day of incident from Anuj Kumar Tiwari but stated to have received call from Vipin Tiwari. However, from his testimony one thing is clear that from this mobile phone he had received a call at 7.15 pm. Vipin Tiwari examined as PW12 however, he denied to have given said mobile phone to accused Anuj Tiwari and nor stated that he was using said mobile phone. Therefore, prosecution could not conclusively prove from direct evidence that accused Anuj Tiwari using the said mobile phone number however, from the other circumstances that is PW3 Pramod Kumar received the call at 7.15pm and further the Cell ID chart that at that time that mobile phone State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-58 of 72) number was in Lajpat Nagar area i.e, where institute also situated and also from other circumstances that with this mobile phone the accused is interacting with deceased number of times for number of days reasonably proves that he was using this mobile number. Accused could not laid any defence that he was not using this number and was using some other number or that he was not having any mobile phone at the relevant time. Circumstance of intimacy between accused Anuj Kumar Tiwari and deceased Geeta:
96. PW1 Pammi Talwar categorically stated that she had seen accused with the company of deceased Geeta and found touching her therefore, thrown him out of job. And there is nothing came in cross examination that she had not seen both of them in that condition. PW2 Alok Kumar Singh who also alleged to have relations with deceased Geeta also stated that deceased Geeta had good relations with accused Anuj and had seen both of them in the kitchen and because of this he was terminated from the services. Prosecution also examined Sunil Kumar (PW25) another driver of Pammi Talwar, however, he has not supported the prosecution on relations of Anuj with Geeta. PW29 Kishan kumar husband of deceased Geeta also stated in cross examination that deceased used to remain in institute till late hours. PW19 Anil Kumar Verma brother of the deceased also stated that deceased was not having very cordial relations with her husband. Further material circumstance is that on the hand of accused Anuj the name of deceased i.e "Anuj Geeta" was found engraved which State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-59 of 72) itself shows that he had intimate relations with deceased Geeta and accused had not given any explanation or led any evidence to rebut this circumstance. Further accused provided deceased mobile phone bearing number 9873231275 which was issued in the name of accused. As already discussed, the CDR details of mobile phones of both accused and deceased shows the fair interaction between them despite the fact that accused was thrown from the services from that institute. Therefore, these circumstance in totality suggest that accused Anuj and deceased Geeta had intimate relations between themselves.
Circumstance of arrest of accused:
97. According to prosecution case Pammi Talwar PW1 provided the mobile number of deceased to police on the next day of incident and said mobile number was not found alongwith the deceased, therefore after searching the call details, Sh Pramod Kumar Rathore (PW3) was contacted who stated that he received call from mobile of Anuj and thereafter police went to his house and contacted his brother Vipin Tiwari on 08.07.09 who told them that accused came on the night of incident and went to his native place at Hardoi thereafter on the night of 08.07.09 police alongwith accused Anuj went to Hardoi and arrested the accused on 09.07.09.
98. According to prosecution case accused was shown to be arrested from the bus stand of Hardoi at the pointing out of PW12 Vipin Tiwari in the morning of 09.07.09. Ld. Counsel stated that the version of police in this regard cannot be believed because no public witnesses were associated at State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-60 of 72) the time of arrest of accused neither any intimation in this regard given to local police before or after his arrest. PW26 Hansram who alongwith his team went to arrest the accused could not tell the way to Hardoi. Ld. Counsel further submitted that accused was not arrested from Hardoi bus stand but lifted from his house from Hardoi.
99. Though the prosecution could not prove the place of arrest of accused i.e, bus stand Shahbad Hardoi however, it is not disputed by the accused that he was not arrested from Hardoi. PW12 Vipin Tiwari brother of accused also stated that police had taken him to Hardoi and arrested accused from his house and came back to Delhi. Accused in his statement u/s 313 Cr.P.C stated that he was lifted from his house at Hardoi. Even if it is believed that accused was not arrested from bus stand but from his house, no benefit of wrong arrest of the accused could be given because the place of arrest i.e, Hardoi or the factum of arrest of accused in his presence of PW12 from Hardoi is not disputed. Further, the circumstance of taking brother of accused i.e, PW12 Vipin Tiwari by the police itself shows that the whereabouts of accused is given by PW12 Vipin Tiwari and this circumstance itself somehow also supports the prosecution case that the said mobile number was used by accused Anuj Tiwari and through that they able to first contact Pramod kumar PW3 and thereafter Vipin Tiwari PW12 brother of the accused.
Discrepancies and tutoring of PW4 Rahul, PW10 Hemant Kothari, PW13 Ajay Singh and PW14 Ramesh:
State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-61 of 72)
100. Ld. Counsel for the accused had stated that there are number of discrepancies in the testimony of these witnesses and further they are tutored by the police before their depositions in court and circumstance of their illegal detention for 45 days itself shows that they are deposing against accused under the pressure of police.
101. As per testimony of all these witnesses they stated that they went to see the rented house on the day of incident and therefore at that time they had given the keys of their room to deceased Geeta for washing clothes and when came back they found accused coming out of that floor and Geeta was found murdered. As far as the factum of their searching of room at Sri Niwas Puri is concerned police had not made any inquiries where they have searched the room in Sri Niwas Puri neither recorded the statement of any landlord. PW4 Rahul stated that they got residential accommodation at Sri Niwas Puri. Whereas PW14 Ramesh Chand stated that they could not get any room in Sri Niwas Puri on that day.
102. PW10 Hemant Kothari in his cross examination stated that he is deposing the facts on narration of Rahul and also some part of his statement was also explained by officer present in the court. PW4 Rahul, PW10 Hemant Kothari and PW14 Ramesh stated that they were illegally detained by the police for 34 days however PW13 Ajay Singh told the police version and stated that they were freed on the night itself at 3.30 am and went to their native places. This all shows that police had tutored these witnesses before their depositions in court.
State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-62 of 72)
103. Further there are discrepancies in prosecution story that despite presence of all these four boys and Pammi Talwar at the spot they were not made witness to lifting of various exhibits from the spot. All these 4 boys stated that they have seen dirty clothes in bathroom however photographs and testimony of police official shows that no dirty clothes were found inside the bathroom.
104. Thus, on overall appreciation of the circumstances as discussed above the prosecution case primarily rest upon the testimony of PW4, PW10, PW13 and PW14 on the circumstance of last seeing accused Anuj Tiwari while going out of the floor and further the circumstance of his interaction with deceased Geeta by way of mobile phone calls and also his relationship with Geeta as already discussed. Further his presence at the spot on basis of mobile phone records.
105. It is necessary to reappreciate the circumstance of last seen i.e, seeing of the accused by PW4, PW10, PW13 and PW14 visavis to the discrepancies and contradiction in their statements and other associated circumstances. All these witnesses stated that they have seen the accused leaving from 3rd floor room and when accused opened the door he told that deceased was washing clothes and after seeing went downstairs and vanished away from the institute. However, PW10 Hemant Kothari in cross examination categorically stated that only Rahul had seen the accused while opening the door and he had not seen the accused at that time. None other witness stated that they had not seen the accused State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-63 of 72) neither any question was put to these witnesses that they have not seen the accused on that day. Now the question arose whether from this contradiction of PW10 it can be inferred that accused was not seen by these witnesses in the manner relied upon by the prosecution.
106. Undeniably, the cross examination of PW10 Hemant Kothari suggest that he had not seen the accused, further except Rahul nobody else seen the accused. Now the question arose that on the basis of this statement whether the testimony of Rahul (PW4), Ajay (PW13) and Reamesh (PW14) to be disbelieved that they had not seen the accused also.
107.It is bounden duty of the court to search the truth from the evidence on record and court is not supposed to adopt easy resort of disbelieving the prosecution case on the basis of non support due to any material contradiction without considering the same in the entire set of facts and circumstances of the case. Though, the averment of PW10 in cross examination that only Rahul and no other boy had seen the accused dented the credibility of PW10 and other witnesses i.e, PW4,13 and 14 because all stated that they had seen the accused while coming out. However, the question remains whether from this averment of PW10 in cross examination it can be inferred that even PW4 Rahul had not seen the accused while coming out from that floor.
108. Apex court in number of judgments had held that maxim "falsus in uno falsus in omnibus" is neither a sound rule of law nor rule of practice and is not applicable as far as criminal jurisprudence of our country is State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-64 of 72) concerned. Apex court in "Jakki @ Selvaraj Vs. State, 2007 Cr.L.J 1671 (SC)" held that skill of appreciation of evidence itself demands for disengaging truth from falsehood therefore, wholesome rejection of the testimony of a witness because some or other part of his statement has not been found to be true may lead to injustice.
109.Apex court in catena of judgments held that while appreciating evidence of witness the approach must be whether the evidence of witness read as a whole appears to have ring of truth and once that impression is formed it is necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, drawbacks and infirmities pointed out in evidence as a whole and evaluate them to find out whether it is against general tenor of the evidence given by the witness as to render it unworthy of belief. Apex court in "Bhagwan Tana Patil Vs. State of Maharashtra, AIR 1974, SC 21" ordained that function of the court is to disengage the truth from the falsehood and to accept what it finds to be true and rejects the rest. Thus in the light of above principles we have to appreciate the evidence of PW4 Rahul, PW10 Hemant Kothari, PW13 Ajay and PW14 Ramesh.
110.All these 4 witnesses stated that they have seen the accused coming out of the floor after the incident but PW10 Hemant Kothari categorically stated in cross examination that he had not seen the accused while coming out of the room and only Rahul had seen the accused coming out of the said floor. Even if it is believed that only Rahul had seen the accused State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-65 of 72) coming out from the floor and Rahul has also duly identified that accused in the court then atmost the statement of PW10 Hemant Kothari, PW13 Ajay and PW14 Ramesh could be disbelieved to the extent that they had not seen the accused while leaving out from the 3rd floor. However, from this contradiction it cannot be inferred that these witnesses were not present at the relevant time. Further, if the testimony of these witnesses is seen as a whole and with other associated circumstances their presence at the spot cannot be doubted.
111. These witnesses remained unimpeached on the factum that they are present at the spot at the relevant time. The testimony of these witnesses if scrutinized carefully despite contradiction of Hemant Kothari )PW10), maximum it could be inferred that these three boys might be on the terrace and immediately came after being called by PW4 Rahul on seeing the dead body. The associated circumstances which gives credibility to the factum of their presence at the spot at relevant time is that immediately they called the owner Pammi Talwar and at her instructions called PCR, PCR and local police immediately reached the spot and found all the four boys at the spot. Owner Pammi Talwar also reached the spot immediately. Statement of PW4 Rahul was also recorded immediately in which he had also given description of present accused. It is worth to be noted that this description is given by PW4 quite prior to the knowing of involvement of the accused in the present case. The first lead of the involvement of the accused in the present case is after checking the mobile records of the State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-66 of 72) deceased on 07.07.2009 and in this regard he was traced through Pramod Kumar (PW3) , Vipin Tiwari his brother and thereafter arrested on 09.07.2009 from Hardoi. Though there is a dispute on the place of arrest in Hardoi but there is no dispute over the fact that he was not arrested from Hardoi. Prosecution case is found sound on the fact that he was arrested from Hardoi on 09.07.2009.
112. Therefore, from these circumstances atleast it cannot be doubted that PW4 Rahul also had not seen the accused and thus on the basis of above principles of appreciation of evidence of the witnesses, the testimony of PW4 cannot be viewed with any distrust because of the contradiction found in the testimony of PW10 Hemant Kothari who in cross examination categorically stated that he had not seen the accused and except Rahul no other person had seen the accused.
113. There are other discrepancies, infirmities found in the prosecution story as discussed earlier but it is also settled principle of law that court has to appreciate the evidence after weighing the effect of above discrepancies and deficiencies. Apex court in number of judgments have also settled that even despite some omissions and illegalities in investigation, the court has to see the believable evidence which could exist without its impact. (State of Karnataka Vs. K. Yarappa Reddy 1999(8) SCC 715 relied upon). Thus despite various discrepancies, drawbacks and infirmities in investigation or in the testimonies of these four witnesses, one thing is quite creditworthy and fully reliable is that PW4 Rahul had State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-67 of 72) seen the accused while leaving out from the third floor.
114.Now the next question arose whether this circumstance itself is sufficient for proving the guilt of the accused. Division Bench of Hon'ble Delhi High Court in case titled "Arvind @ chhotu Vs. State (NCT of Delhi) ILR (2009) Supp.1 Delhi 704" exhaustively not only dealt with the probative value of the circumstance of last seen but also dealt that how to appreciate the last seen circumstance after considering the number of apex court judgments. In para 105 have summarized the legal position regarding the last seen evidence:
(i) Lastseen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the lastseen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of lastseen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of lastseen.
(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-68 of 72) the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last seen, a convict can be sustained.
(v) Proximity of place i.e, the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found in an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the lastseen theory.
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory.
115. It is clear from the judgment that corroboration by other evidence is not necessary in each and every case. Let us examine this proposition in regard to facts of the present case. In present case as already discussed, the deceased and the accused had illicit relations between them and accused himself had provided her the mobile and both were frequently State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-69 of 72) interacting with themselves on mobile and on the day of incident also they called each other number of times and at around 6.46 pm also he had a talk with deceased on mobile thereafter found talking deceased on mobile with PW2 Alok Singh at Institute and further talked to his Bhabhi from institute at around 7.15 pm and thereafter seen by PW4 while leaving out from the institute. Deceased admittedly found present at around 5.30pm, also at around 6.59 pm when she called Alok and found dead at around 8 pm when those boys had seen the dead body in the institute. As per last seen evidence accused was found on that floor which was bolted from inside while leaving out from that floor. Thus, there appears no possibility of any other person found there on that floor. In these circumstances, the last seen evidence clearly points towards the culpability of the accused.
116. It is further dealt in the above judgment that once the last seen evidence is reasonably proved by the prosecution then it is the bounden duty of the accused to rebut the same. Section 106 of Evidence Act embodies the legal principle that where a fact is especially within the knowledge of the person the burden of proving that fact is upon him. However, the accused had not offered any explanation in this regard neither any other plausible explanation came from the prosecution evidence which could in any manner relieve the accused from that burden. Thus, the circumstance of last seen by PW4 in the present case appears to be sufficient to hold accused guilty in the present case .
117. However, as already discussed there are other incriminating State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-70 of 72) circumstances which points towards the guilt of the accused i.e, his presence at the spot on the basis of mobile records, his intimate relationship with the deceased and further there is no explanation by accused in his statement under section 313 Cr.P.C that he was not present at the spot at that time or present at some other place at that time. Accused even not placed anything on record that what mobile phone he was using.
118. It is well settled by catena decisions of apex courts that in order to find conviction on circumstantial evidence each of the incriminating pieces of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the proved pieces of circumstantial evidence taken together form such a chain where from no inference other than of guilt can be drawn against the accused person or, in other words, the proved pieces of circumstantial evidence should not be capable of being explained on any hypothesis other than the guilt of the accused. It is also settled principle even in cases of circumstantial evidence as discussed in above case by Hon'ble Delhi High Court that even a single circumstance in circumstantial evidence is enough to convict an accused if found cogent and reliable and points towards the guilt of the accused and negates any chance of his innocence. However, in present case as earlier discussed there are other circumstances also beside last seen evidence which points towards the guilt of the accused.
119. The postmortem report clearly shows that deceased died due to State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-71 of 72) strangulation by said dupatta. The other circumstances , photographs of deceased and deposition of other witnesses clearly points towards homicidal death and as there is no explanation offered regarding that incident, there cannot be any other inference than to infer that she was murdered by the accused. Hence, accused is found guilty for commission of offence u/s 302 IPC.
120. As already discussed, prosecution has also proved that deceased was using mobile number 9873231275 and accused was using mobile no. 9213909227 and the said mobile phone were taken by accused and destroyed. Accused had offered no plausible explanation that these mobile phones are not in his possession, therefore, prosecution also able to prove the charge for offence u/s 201 IPC against the accused for destruction of evidence.
121. As already discussed prosecution able to prove its case beyond reasonable doubt against accused, hence accused is found guilty for commission of murder of deceased Geeta and for destruction of evidence hence, convicted for commission of offence u/s 302/201 IPC. Accused be heard on quantum of sentence.
Announced in Open Court
On 3rd November 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Anuj Kumar Tiwari, SC No. 152/10, (pg-72 of 72)