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Delhi District Court

Court In State Of U.P. vs . Satish, [2005] 3 Scc 114; Padala Veera on 20 August, 2011

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          IN THE COURT OF SMT. BIMLA KUMARI
      ADDITIONAL SESSIONS JUDGE-II (NORTH) : DELHI
S.C. No. 18/10
ID No. 02401R0590842009
State
Vs.
Hardeep Gulia
S/o Daya Nand Gulia
R/o 24/312, Nehru Park,
Bharai Road, Bahadurgarh
Haryana

FIR No. 154/09
P.S. Timarpur
U/S 302/201/411 r/w Sec.34 IPC

Date of Institution: 10.12.09
Date of reserving for judgment: 25.07.11 and 05.08.11
Date of pronouncement: 20.08.11

JUDGMENT

In the present case, charge has been framed against accused Hardeep Gulia in respect of offences U/S 302, 201 and 411 read with Section 34 IPC. The allegation in the charge is that on or around 02.09.09 at unknown time, at plot No. 256-257, F-Block, 3rd Floor, Gandhi Vihar, Timarpur Delhi, he [accused] in furtherance of his Sessions Case No. 18/10 Page 1/42 2 common intention with Ajay Joon alias Babbu [facing trial before Juvenile Justice Board] and Sunil Sehrawat alias Sonu [P.O], committed murder of Anita Mukhiya alias Dikki. It is also alleged that he [accused Hardeep Gulia] alongwith Ajay Joon and Sunil Sehrawat, knowingly or having reason to believe that the offence of murder having been committed, disposed of the weapon of offence i.e. knife and blood stained clothes, into the drain at Wazirabad with the intention of screening themselves from legal punishment. It is also alleged that on the aforesaid date and place he [accused Hardeep Gulia] in furtherance of his common intention with Ajay Joon and Sunil Sehrawat dishonestly retained the two mobile phones and two rings, purse, one bag, cash and documents, belonging to deceased Anita Mukhiya knowingly or having reason to believe the same to be the stolen property.

2 Accused pleaded not guilty to said charge and claimed trial. 3 To prove its case, prosecution has examined 44 witnesses. They are Divya Gurung(PW-1), Constable Deepak(PW-2), SI Dheeraj Kumar(PW3), HC Rajpal(PW-4), Lady Constable Budh Mani(PW-5), Constable Chetan(PW-6), Constable Karan(PW-7), Rajesh Kumar(PW-8), Rani Tamang(PW-9), Udayvir Singh(PW-10), Monika Mukhiya(PW-11), Gulshan(PW-12), Naresh Dawar(PW-13), Lalit Arora(PW-14), Prince Davar(PW-15), Naresh(PW-16), ASI Nihala Ram(PW-17), HC T.R Ahlawat(PW-18), HC Anil Kumar(PW-19), HC Sessions Case No. 18/10 Page 2/42 3 Sonu Kaushik(PW-20), SI Pratap Singh(PW-21), Dr. S. Lal(PW-22), Constable Chiranji Lal(PW-23), Constable Gaurav(PW-24), HC Rajesh Kumar(PW-25), Constable Rakesh(PW-26), HC Anish Kumar(PW-27), HC Manjit Singh (PW-28), Abdul Sattar(PW-29), Ajit Singh(PW-30), Vishal Gaurav(PW-31), Deepak(PW-32), ASI Gajender Kumar(PW-33), Sh. Ashish Aggarwal(PW-34), HC Rajiv Kumar(PW-35), HC Manjit Singh(PW-36), Sh. Ravinder Kumar(PW-

37), Sh. M.N. Vijayan(PW-38), HC Rajiv Kumar(PW-39), HC Devender Pawar(PW-40), Constable Pawan Kumar(PW-41), W. Constable Praveen Kumari (PW-42), Inspector Jitender Kumar (PW-

43), and Sh. Tarun Yogesh(PW-44).

4 Statement of accused U/S 313 CrPC has been recorded, wherein he has denied the allegations of prosecution. He had surrendered himself at P.S. Nangloi. The mobile phone No. 989697709 is in his name. He has been identified in court at the instance of I.O. He never visited the house of deceased on 02.09.09. He is innocent. He has submitted that he has been falsely implicated in this case. His arrest is motivated. The investigation in this case is tainted and biased. Police never visited his house. No recovery of any ring was affected from his house. Ring has been planted upon him. 5 Accused did not prefer to lead any evidence in his defence. 6 I have heard arguments from ld. counsel for accused and ld. Addl. PP for State. Ld. counsel for accused has prayed for acquittal of Sessions Case No. 18/10 Page 3/42 4 accused by submitting that material witnesses have not supported the prosecution case. Accused has been arrested by the police of P.S. Nangloi on the basis of secret information. Thereafter, he made disclosure statement, on the basis of which he has been arrested in this case. No recovery has been effected immediately in pursuance of his disclosure statement. One ring, allegedly recovered from the house of accused, is of no use to the prosecution as no public witness has been joined by I.O at the time of recovery. Chance prints lifted from the spot do not tally with the finger prints of accused. The call details record [CDR] placed on file by the prosecution is also of no use to the prosecution as it is merely a computer generated copy of call details and no certificate as required U/S 65 B of Indian Evidence Act has been placed on record by the prosecution.

7 On the other hand, Ld. Addl. PP has prayed for conviction of accused by submitting that there is no eye witness in this case. The case of prosecution rests upon circumstantial evidence. The deceased was lastly seen in the company of accused. Accused refused to participate in the TIP proceedings. No witness has been examined by the accused to prove his false implication in this case. Prosecution case is supported with the postmortem report. Prosecution has placed on record the call details of the phones to prove the conversation between the accused and deceased.

8 In the present case, as per prosecution story, accused Hardeep Gulia, Ajay Joon and Sunil Sehrawat used to go to the house of deceased for sex. On the relevant day also, they all had gone to her home for sex. At about 8:00 PM, co-accused Sunil left the house of deceased as he had to go to attend a birthday party at Gurgaon alongwith Prince Dabar [PW-15] and Lalit Arora [PW-14]. Thereafter, accused Hardeep Gulia and Ajay Joon took drinks with deceased and asked her for sex. But the deceased refused for sex. Then, the accused talked co-accused Sunil, who told them to cut her [kaat-peet dena] if she did not agree for sex. Accused Sunil also persuaded the deceased on phone to provide sex to accused Hardeep Gulia and Ajay Joon, otherwise, they would cut her body, but the deceased did not agree. Thereafter, both the accused took out a knife and gave knife blow on her neck and stomach and killed her. Thereafter, they talked to Sunil on phone, who told them not to leave any proof on spot and asked them to come to him to Gurgaon after taking the articles of deceased, whatever they get from the room. Thereafter, both the accused changed their clothes, took some belongings of deceased and locked the room from outside. They went to Majnu Ka Tilla via Wazirabad. They threw their blood stained clothes into Wazirabad Nala and took a taxi from Majnu Ka Tilla and went to Gurgaon where they told the whole story to co-accused Sunil. Thereafter, they came to Majnu Ka Tilla from Gurgaon and spent the Sessions Case No. 18/10 Page 5/42 6 night there in the house of Sunil. The accused threw the two mobiles of deceased and the mobile of accused Hardeep Gulia in a river at Bahadurgarh.

9 In the present case, there is no eye witness and the prosecution case rests on the circumstantial evidence. 10 In State of Goa V. Sanjay Thakran and Anr. And Subhash Chandra Nanda V. Sanjay Thakran and Anr., AIR 2007 SC [Supp] 61, it has been observed by Hon'ble Supreme Court that "it is a well settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:

1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.

3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any Sessions Case No. 18/10 Page 6/42 7 other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

Similar observations have been made by Hon'ble Supreme Court in State of U.P. vs. Satish, [2005] 3 SCC 114; Padala Veera Reddy vs. State of Andhra Pradesh and Others, 1989 Supp. [2] SC 706; Sharad Birdhichand Sarda vs. State of Maharashtra, [1984] 4 SCC 116; Gambhir vs. State of Maharashtra, [1982] 2 SCC 351 and Hanumant Govind Nargundkar and Another vs. State of Madhya Pradesh, AIR 1952 SC 343.

11 In the present case, there are following incriminating circumstances against the accused:

1. Telephonic conversation between accused Hardeep Gulia and co-accused Sunil Sehrawat [P.O] and conversation between deceased and accused

2. Recovery of one ring allegedly belonging to deceased, from the house of accused.

3. Deceased was lastly seen alive in the company of accused.

12 To prove the first circumstance, prosecution has examined PW-14 Lalit Arora. He has not supported the prosecution story either in examination-in-chief or in cross-examination by Ld. Addl. PP. He has deposed that he does not know anything about this case. The Sessions Case No. 18/10 Page 7/42 8 police never made enquiry from him. He has no knowledge about this case. He knows Sunny who is his neighbour. He does not know Sonu. He never went anywhere with Sunny.

13 In cross-examination by Ld. Addl. PP, PW-14 has deposed that he did not make the statement Mark A1 to the police. He has denied that on 02.09.09 his friend Sunny met him at about 9:30 PM and asked him to go to Disco. He has denied that Sunny asked him to bring bottle of liquor for Sonu. He has denied that at about 11 PM, he received a telephonic call from Sunny to go for Disco and at about 11:30 PM he alongwith Sunny and Sonu boarded in the car to Disco. He has denied that during the travelling, Sonu received a phone call at about 12 midnight and call was of some girl. He has denied that Sonu was saying on the telephone that "maan ja, vo kaat denge"

and then the phone was disconnected. He has denied that thereafter, Sunny received call of his wife Rosy, who talked to Sunny as well as to Sonu. He has denied that at about 1:15 AM they entered inside Disco, where during the dance, Sonu received 2-3 calls and everytime he went out to hear the call. He has denied that at about 2 AM Sonu went out from the Disco and when he did not return for about 20 minutes and then, he alongwith Sunny went to see Sonu outside Disco, where they saw that two boys were standing with Sonu Sessions Case No. 18/10 Page 8/42 9 and Sonu told them that he was coming to Disco after getting the entry of those two boys. He has denied that he told to police that after about 20 minutes Sonu again came into Disco and he [PW-14] asked him where the other two boys were and that he told him [PW-14] that said two boys were wearing chappals and therefore, their entry could not be affected and at about 4:30 AM they finally came out of the Disco and then, the said two boys talked with Sonu. He has denied that he alongwith Sunny and Sonu was returning to the house, then on the way, the said two boys, who met outside the Disco, met on the way and at the instance of Sonu, the driver of their car, picked up the said two boys, who also boarded in their taxi. He has denied that on reaching Majnu ka Tila, the taxi driver demanded the fare from the said two boys, on which some hot talks took place between the two boys and the driver. He has denied that they reached at Majnu Ka Tila at about 5 AM on 3.9.09 and Sonu went to his room. He has deposed that he cannot identify the accused Sonu. He has volunteered that he did not see Sonu. He cannot identify accused Sonu even if he is shown to him [accused Sonu is P.O]. He has denied that he has been won over by accused persons. He has denied that he, being the friend of Sunny and Sonu, is deposing falsely in order to save accused persons.

14 An opportunity to cross-examine the PW-14 has been given to ld. counsel for accused but he did not avail of that opportunity.

15 Another material witness is PW-15 Prince Dabar alias Sunny. He has also not supported the prosecution case. He has deposed that he does not know anything about this case. He knows Sonu by face only. He has deposed that Sonu used to come to a room at first floor of his house, which was let to a lady, namely Rosy. Sonu used to come in that room to meet that lady. He has no concern with Sonu. He is not having friendship with Sonu. He never went anywhere with Sonu.

16 In cross-examination by ld. Addl. PP, PW-15 has deposed that police never recorded his statement in this case. He has denied that he made the statement Mark A2 to the police. He has denied that Sonu told him that he is the husband of Rosy who was living at the first floor of his house on rent. He has denied that Sonu and his wife Rosy remained absent for about 10-12 days before 02.09.09. He has denied that on 2.09.09 he called Sonu on telephone to join his birthday party and he[Sonu] promised him to join the same. He has denied that on the second call made by him to Sonu, Sonu told him that he was present on the first floor in his room and he [PW-15] went to meet him in his room and at his instance he took a liquor bottle of Mcdonald No. 1 brand at his room and Sonu took 2-5 pegs of liquor. He has denied that at about 11 PM he alongwith Sonu boarded a taxi and also took his [PW-15's] friend Lalit alongwith them and went to MGF Mall, Sessions Case No. 18/10 Page 10/42 11 Gurgaon to see Disco. He has denied that they entered the Disco at about 12:30 AM. He has denied that Sonu had received a mobile phone call on the way and Sonu was calling to the caller as Dikki, and some noise of male was also heard on the telephone and to whom Sonu was talking in the Haryanvi language. He has denied that during the conversation over phone, Sonu was taking the names of Gulia and Babbu and he said on phone that " Tum meri patni ke baare me galat baate bol rahi ho" and he asked to keep mum. He has denied that Sonu further said on telephone that his men were sitting with her and "agar jyada bologi toh ye tujhe kaat peet denge". He has further denied that Sonu told to Gulia that he had made understood the said Dikki and if she did not agree, "toh isko kaat peet dena or mujhe phone kar dena". He has denied that Sonu continued talking on mobile phone and he [Sonu] spoke the name of Gulia and that after sometime, Sonu again called on telephone to Gulia that achchi tarah safai kar dena or koi saboot mat chodna and come to MGF Mall Gurgaon. He has denied that thereafter, they entered the Disco and took the beer. He has denied that after sometime, Sonu had received a call on mobile on which Sonu went out from Disco and that when he did not come for a long time, then he and Lalit at about 2:30 AM went out from Sessions Case No. 18/10 Page 11/42 12 Disco and came down and that they saw that there were two boys with Sonu to whom Sonu was calling as Babbu and Gulia, and they were talking to each other. He has denied that at that time, one Gulia was saying to Sonu that there was no matter of tension and "humne sara samaan side kar diya, jisme kuch naale mein daalne ki baat bhi aayi thi". He has denied that Sonu asked him [PW-15] to go inside as they were busy in some personal talks. He has denied that thereafter they started for Majnu Ka Tila from MGF Mall and both the boys who were talking to Sonu also boarded with them. He has denied that on reaching at Majnu Ka Tila, the taxi driver demanded money from those boys for taxi-fare by which they went to MGF Mall, to which they refused and he [PW-15] made the payment of the same. He has denied that those two boys went alongwith Sonu at his room and in the morning of 03.09.09, when he woke up then Sonu and other two boys were not found in the room. He tried to contact Sonu on telephone but could not be contacted. He has deposed that he cannot identify Gulia and Babbu as he never saw Gulia and Babbu. He has deposed that he can only identify Sonu, who is not present [since P.O]. He has denied that being the landlord of Sonu, he is deposing falsely in order to save accused persons. He has denied that he has been won over by accused persons with the connivance of accused Sonu and that Sessions Case No. 18/10 Page 12/42 13 he is concealing the facts to save the accused persons. He has denied that he is deposing falsely.

17 In cross-examination by ld. counsel for accused, PW-15 has deposed that the I.O of this case has met him outside the court. He has deposed that I.O forced him to depose in the court as per his wishes. He has deposed that he never made statement Mark B2 to the police. He has admitted that I.O of this case has fabricated statement in his name.

18 Another material witness is PW-13 Naresh Dawar. He has deposed that on 02.09.09 he took three boys namely, one Lalit, Sunny [PW-15] and one more boy to Gurgaon in his taxi No. DL-9C-1236 at MGF Mall at about 11.00 PM. He does not know the third boy, but Sunny [PW-15] and Lalit were calling his name as Sonu. He stayed at Gurgaon. On the next morning, he took all the three boys back to Delhi from Gurgaon MGF Mall. On the way, two more boys met and boarded in his taxi. They had also gone to Gurgaon in another taxi. He took all the five boys to Majnu Ka Tilla. Sunny made the payment to him. He [PW-13] has identified accused Hardeep Guliya in court. 19 In cross-examination by ld. counsel for accused, PW-13 has deposed that police never met him in connection with the present case. The Investigating Officer met him outside the court room before appearing in the witness box. He has denied that he has been tutored Sessions Case No. 18/10 Page 13/42 14 by the Investigating Officer and as such he has deposed according to his wishes. He has further deposed that police met him in this case on 02.09.2009. The IO had called him in the Police Station. He has denied that his statement was read over to him before appearing in the witness box. He reached at MGF Mall Road at about 11:30 pm. Police never took him to the MGF Mall Road. He also did not take the police to MGF Mall Road. On 02.09.09 he parked his taxi in an unauthorized parking. He did not pay any parking fee. Police never took him to the MGF Mall Road for his identity as to whether he had gone to that place on 02.09.2009. He has deposed that accused was not known to him prior to 02.09.2009. Accused was never arrested by the police at his instance. He did not participate in any Test Identification Parade after the arrest of the accused. He has deposed that in the court he has seen the accused for the first time. He has denied that he is an interested witness in this case. He has denied that he has deposed in the court as per the wishes of IO. He has denied that he was never called by the IO on 02.09.2009 in connection with the present case.

20 Another material witness is PW-16 Naresh. He has also not supported the prosecution story either in examination-in-chief or in cross-examination by ld. Addl. PP. He has deposed that he does not know anything about this case. He does not know any Sonu and Sessions Case No. 18/10 Page 14/42 15 Sunny.

21 In cross-examination by ld. Addl. PP, PW-16 has deposed that police never recorded his statement in this case. He has denied that he made statement Mark PW16/A to the police. He has deposed that he is a taxi driver and working as driver in the taxi No. DL 3CB 4436 of Rinku. He has denied that on 02.09.09 at about 12 midnight he reached at Auto Taxi Stand , Majnu ka Tila, from where he took two boys to Gurgaon, Metropolitan Mall, for a sum of Rs. 550/-. He has denied that on the way, the two boys purchased one water bottle and one Goldflake cigarette from the stall of Javed at Majnu Ka Tila. He has denied that they made a phone call to one Sonu and they informed him that they had engaged a taxi and were coming to Gurgaon. He has denied that at about 2 AM he dropped said boys at Gurgaon. He has denied that he demanded fare from the two boys; that then they went away and told that they would pay after their return. He has denied that he waited for them till 3:30 AM; that then the two boys alongwith three other boys came altogether. He has denied that said two boys did not pay him the fare and at about 4 AM he received a phone call from other taxi driver Naresh Dawar, who called him at IFFCO Chowk. He has denied that the passengers did not allow Naresh Davar to stop at IFFCO Chowk. He has denied that at about 5 AM, he again received the phone call from Naresh Davar Sessions Case No. 18/10 Page 15/42 16 who called him [PW-16] at Javed Tea Stall, Majnu Ka tila. He has denied that one Lalit and Sunny promised to make the payment on their behalf. He has volunteered that he does not know any Lalit and Sunny. He never went to P.S to identify any person. He has denied that on 23.9.09 he went to P.S Timarpur and identified the two boys as Ajay Joon alias Babbu and Hardeep Gulia to whom he had taken to Gurgaon in his taxi in the intervening night of 2/3.9.09. He has denied that police recorded his statement Mark PW16/B on 23.9.09.

22 An opportunity to cross-examine the witness has been given to ld. counsel for accused but he did not avail of that opportunity.

23 PW-10 Rajesh Kumar, has proved on record that on 02.09.09, accused Sonu [P.O] was having a mobile phone, the last digits of which were 430. By using that phone, he [accused Sonu, P.O.] had asked him to arrange a taxi for Gurgaon as he [Sonu] wanted to attend a dance party.

24 PW-32 Deepak has deposed that one mobile make Excite 415 bearing IMEI No. 354468011997765 was sold by him to deceased on 27.04.99 vide receipt Ex. PW32/A. He has further deposed that deceased Anita alias Dikki was the friend of his wife. Since, deceased was not having any address proof for getting the mobile phone Sessions Case No. 18/10 Page 16/42 17 connection, his wife bought a SIM card vide phone No. 9971421142 and same was given to deceased. At the time of death of Anita, the said mobile phone was in the possession of deceased. 25 In cross-examination, PW-32 has deposed that mobile phone No. 9971421142 stands in the name of his wife. He has denied that the said mobile phone was used by his wife and it was never parted with. I am of the considered view that it is proved from the testimony of PW-32 that at the time of death of deceased mobile phone No. 9971421142 was in the possession of deceased. It is worth noting that PW-32 has deposed so categorically and there is nothing in the cross-examination o the contrary.

26 PW-30 Sh. Ajeet Singh, Asstt. Nodal Officer, Idea Cellular Ltd. has inter-alia deposed that customer application form of Anita Mukhiya and her I.D. Proof are Ex. PW30/E and Ex. PW30/F respectively. There is nothing in cross-examination to the contrary. Thus, PW-30 Sh. Ajeet Singh has proved on record that mobile phone No. 9911296417 was in the name of deceased Anita Mukhia vide application form and I.D. Proof Ex. PW30/E and Ex. PW30/F respectively.

27 From the testimony of PW-30 and PW-32, it is proved on record that mobile phone No.s. 9911296417 and 9971421142 were in the possession of deceased and mobile phone No. 9718240430 was used by co-accused Sunil [P.O] at the relevant time.

28 It is worth noting that accused Hardeep Gulia has admitted in his statement U/S 313 CrPC that mobile phone No. 989697709 belonged to him.

29 In the present case, PW-30 Ajit Singh, Nodal Officer, Idea Cellular Ltd., has produced the call details record of mobile phone number 9911296417 and 9718240430. The call details of mobile number 9911296417 is Ex. PW30/A and call detail of mobile number 9718240430 is Ex. PW30/B. 30 PW-31 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel has proved the call details of mobile number 9971421142 as Ex. PW31/C and call details of mobile number 9896979709 as Ex. PW31/D. 31 Now, the question for consideration is whether the call details record [CDR] produced by PW-30 and PW-31 are admissible in evidence without certificate as required U/S 65B [4] of Indian Evidence Act? If Yes, what is the evidentiary value of these CDRs? 32 The Hon'ble Supreme Court, while deciding the Criminal Appeals No. 373-375/04, Crl. Appeal No. 376-378/04, 379-380/04 and 381/04 titled as State V. Navjot Sandhu, State V. Syed Abdul Rehman Gilani, Shaukat Hussain Guru V. State and Mohd. Afzal V. State, AIR 2005 Supreme Court 3820 [1], has observed that "according to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes Sessions Case No. 18/10 Page 18/42 19 which in themselves ensure the accuracy of the copy, and copies compared with such copies".Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 and 65. It may be that the certificate containing the details in sub-Section [4] of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 and 65."

33 It is worth noting that in the present case, no suggestions have been put by ld. counsel for accused to PW-30 and PW-31 touching the authenticity of the call details or regarding the possibility of tampering with the entries or fabrication of call details. Thus, in view of the judgment of Hon'ble Supreme Court discussed above, I am of the considered view that the CDRs produced by PW-30 and PW-31 are admissible in evidence in the absence of certificate as required U/S 65 B of Indian Evidence Act.

34 Now, the question is about the evidentiary value of these call details records.

35 In the present case, PW-31 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. has proved the Cell I-D Chart Ex. PW31/E running into 75 pages, which only shows the site ID and site name and addresses of consumers. However, it [Cell I-D Chart] does not show the conversation between accused Hardeep Gulia and co-accused Sunil Sehrawat [P.O.] and the conversation between the deceased Anita and co-accused Sunil. Since, the cell I.D Chart Ex. PW31/E does not contain the conversation between the accused persons and the conversation between accused and deceased, I am of the considered view that the call details records [CDRs] produced by PW-30 and PW- 31 have no evidentiary value, particularly, when there is no other evidence connecting the accused with crime.

36 It is worth noting that in the present case, the telephonic conversation between accused Hardeep Gulia and Sunil Sehrawat [P.O] and between deceased and Sunil [P.O] was partially heard by PW-14 Lalit Arora and PW-15 Prince Dabar alias sunny. But unfortunately, both of them, have turned hostile and did not support the prosecution case. They have denied of having made any statements to police. Thus, I am of the considered view that the first incriminating circumstance against accused is of no help to prosecution case and thus, is discarded.

37 Another incriminating evidence against the accused is the recovery of ring Ex. P-4.

38 PW-43 Inspector Jitender has deposed that on 11.09.09 an information was received from P.S. Nangloi that accused Hardeep Guliya and Ajay Joon wanted in this case have been arrested by the police of P.S. Nangloi U/S 41.1 CrPC. The police of P.S. Nangloi produced accused Hardeep Guliya and Ajay Joon before Tis Hazari Courts and with the permission of court, he [PW-43] formally arrested accused Hardeep Guliya and Ajay Joon and interrogated them. Their arrest memos Ex. PW43/E and Ex. PW43/F were prepared. SI Pratap Singh of P.S. Nangloi had handed over him the relevant documents pertaining to accused. Thereafter, both accused were sent to J.C. He moved an application for conducting TIP of accused Hardeep Guliya and Ajay Joon. However, both accused refused to participate in TIP Sessions Case No. 18/10 Page 21/42 22 proceedings. He has further deposed that on 22.09.09 he obtained the police custody of both accused for recovery of case property and weapon of offence. He interrogated both accused persons and recorded their disclosure statements Ex. PW7/A and Ex. PW7/B respectively. Both accused disclosed that they had thrown the weapon of offence and blood stained clothes worn by them at the time of commission of offence in the Nala Wazirabad. Thereafter, he alongwith accused persons reached Nala and made efforts to search the weapon of offence but the same could not be recovered. Accused further disclosed that they had thrown mobile phone in the Nahar of village Rohad, Distt. Bahadurgarh, Haryana. He has further deposed that on 24.09.09 he alongwith staff, both accused and one diver Abdul Sattar went there and made efforts to search the mobile but same could not be traced. Accused persons had further disclosed that they could get recovered the gold ring, ladies purse, driving licence from their respective houses. Accordingly, he went to their respective houses and one gold ring was recovered from accused Hardeep Guliya from his pocket of pant hanging in his room. The said ring belonged to the deceased Anita. On the same day, one ladies purse, driving license of deceased Anita and two Nepali currency notes were recovered at the instance of accused Ajay Joon from his house. Same were taken into possession vide memo Ex. PW26/B. Thereafter, both accused persons were brought to P.S. Timarpur. Case property was deposited in Sessions Case No. 18/10 Page 22/42 23 malkhana. Both accused were sent to J.C. He has further deposed that on 05.12.09, TIP of case property was conducted by Ld. MM, wherein PW-11 Monika Mukhiya correctly identified the recovered ring as belonging to her deceased sister Anita.

39 In cross-examination by ld. counsel for accused, PW-43 has deposed that house of accused Hardeep Guliya fell within the area of P.S. Bahadurgarh. No arrival entry was made by him in P.S. Bahadurgarh. House of accused was at less than five kms from P.S. Bahadurgarh. He has admitted that house of accused Hardeep is surrounded with multiple residence houses. As few public persons were coming and going, no witness was asked to join before going to the house of accused. Before entering into the house of accused Hardeep, no neighbour was asked to accompany them. He did not notice as to how many storeys the house of accused Hardeep had. At that time, two persons were present at the house of accused. One of them was his mother but he does not know about the other person. Abdul Sattar and the taxi driver Ghumman Singh were not joined by them at the time of going to the house of accused. He did not offer his search to the occupants of the house of accused. He even did not offer his search to accused Hardeep. The pant from where the recovery of ring was effected was accessible to all and was in open place. At the time of recovery of ring, Ghumman Singh and Abdul Sattar were not Sessions Case No. 18/10 Page 23/42 24 called to join the recovery. He has denied that on 24.09.09 he had not taken accused hardeep to his house or that no ring was recovered from the house of accused. He has denied that ring has been planted upon the accused Hardeep in collusion with the complainant party. No public person was asked to join even after recovery. The ring was not deposited in the concerned PS of Bahadurgarh. No arrival was made at PS Bahadurgarh. The seal after use was handed over to member of raiding party but he does not remember the name of person. He returned back to PS at about 1:00/2:00 PM. Arrival entry was made in PS. He did not mention the fact of recovery of ring from accused in the arrival entry however, the case property was deposited by him in the malkhana. He does not remember the DD number or the name of duty officer. He has denied that accused Hardeep Guliya was not taken out of PS Timarpur on 24.09.09 or that the ring has been planted upon accused in this case. In September, October and November 2009 the TIP in respect of ring was not held nor any request was made by him to the concerned MM. During this period the seal of JK remained with him. He has denied that subsequently, the ring in this case was planted and got identified. He has denied that the arrest of accused in this case is motivated. He has denied that his investigation is tainted, biased and mischievous.

40 In Chaman Lal v. State, Crl. Appeal No. 109/86 decided on Sessions Case No. 18/10 Page 24/42 25 24.02.87, by Hon'ble Delhi High Court "the investigating officer also had not complied with the provisions of section 166 Cr.PC. In that case the recoveries had been made within the jurisdiction of a different police station. The recoveries were made by an officer, who did not belong to the police station where the appellant resided. It was observed by Hon'ble High Court that in law the investigating officer was bound to report the matter of seizure to the concerned police station. It had failed to make a record of the search in the books of that police station and had failed to inform the Magistrate about it. In those circumstances, the Court held that, since the search was conducted within the jurisdiction of a police station different than the one in which the case was registered and was conducted by a police officer of the station, where registration was done, the provisions of section 166 CrPC had to be followed. Thus, non-compliance of the provisions of Section 166 Cr.PC rendered the investigation as suspect.

In Sahib Singh V. State of Punjab, Crl. Appeal No. 61/92 decided on 13.09.96 against the judgment and order dated 21.12.91 of the designated court of Amritsar, it is observed by Hon'ble Supreme Court that:

"Before conducting a search, the concerned police officer Sessions Case No. 18/10 Page 25/42 26 is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such person later on turns hostile. In any of these eventualities, the evidence of the police officers, who conducted the search, cannot be disbelieved, solely on the ground that no independent and respectable witness was examined to prove the search but if it is found-as in the present case- that no attempt was even made by the concerned police officer to join with him some persons of the locality, who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."

In Aslam Parvez etc.V. Govt. of NCT of Delhi, 2003[2] JCC, 827, it was observed by Hon'ble Supreme Court that "when the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that so being so, the fact of recovery cannot be regarded as conclusive proof that the accused was in possession of these articles."

41 In the present case, PW-43 did not join the diver Abdul Sessions Case No. 18/10 Page 26/42 27 Sattar, taxi driver Ghumman Singh at the time of recovery of ring, who were present with the I.O. I.O has did not offer his search to the occupants of the house. More over, I.O has categorically admitted in his cross-examination that the pant from which recovery of ring was made, was accessible to all and was in open place. I.O did not make any arrival entry at P.S. Bahadurgarh. He did not join any public witnesses from the neighbourhood, despite the fact that the house of accused was surrounded with residential houses and people were coming and going. Even the mother of accused, who was present in the house, was not joined by the I.O at the time of recovery of ring Ex. P4. I.O did not join any witness from P.S. Bahadurgarh, Haryana, 42 Besides these infirmities, PW-11 Monika Mukhiya, who is the real sister of deceased Anita Mukhiya and has identified the ring Ex. P-4 in the TIP of case property, could not produce any record to show that the ring belonged to deceased Anita as she could not tell any identification mark on the ring Ex. P-4. She did not produce any receipt regarding purchase of ring from Mohit jewellers. She has deposed that neither police took her to the shop from where she purchased the ring Ex. P-4 nor she took the police to that shop. 43 In view of above discussed infirmities in the recovery proceedings of ring Ex. P-4, I am of the considered view that the second incriminating circumstance against accused is also of no avail to the prosecution and thus, this circumstance is also discarded.

44 The last incriminating circumstance against the accused Hardeep Guliya is that PW-9 Rani Tamang had lastly seen the deceased Anita alias Dikki alive in the company of accused. 45 PW-9 Rani Tamang has deposed that deceased Anita @ Dikki was her cousin aunt (mausi). She [the deceased] was staying at F-256, 3rd floor, Gandhi Vihar. On 02.09.09, she [PW-9] had spoken to Anita @ Dikki on telephone and asked as to how she was. Thereafter, in between 10:00/10:30 AM, Anita @ Dikki made a phone call to her [PW-9] and invited her for dinner at her [Anita's] house. She asked Anita as to who else was there at her house and she told her that she was alone. She went to her in the afternoon. When she reached there, she saw that Anita alongwith other three persons was playing cards. She [PW-9] asked Anita as to why she told a lie that she was alone, at which Anita replied that one of them namely, Sonu, is her Mausa. Thereafter, she [PW-9] wished him (Sonu). She [PW-9] asked Anita as to how many days they were staying there. Upon that, Anita replied that they had been staying with her for the last about 10-15 days. The washed wearing apparels of those three persons, were also hanging at the railing in front of the room. Thereafter, Anita took her [PW-9] inside the room and showed the photograph of Sonu, kept upon the television. Thereafter, she took the meal. She [PW-9] has further deposed that those persons started Sessions Case No. 18/10 Page 28/42 29 drinking the liquor. She could not understand the conversation between those three persons. Thereafter, when those persons were drinking, she left that place at about 8:00 PM and went home. Thereafter, on 06.09.09, her elder Mausi Monika made a phone call to her in the morning and told her about the death of Anita @ Dikki. She told Monika that on 02.09.09 she had visited Anita @ Dikki and took meal there. Monika asked her [PW-9] to come to P.S. Timarpur. She reached P.S. Timarpur. Thereafter, she, Monika and police persons reached the house of Anita @ Dikki. She saw that Anita @ Dikki was lying in the pool of blood and the wearing apparels of those persons, which were hanging at the railing were also not there. The photograph of Sonu, which was kept on the television, was also found missing. Thereafter, she went to the kitchen, where the kitchen knife was also not there and two mobile phones belonging to Anita @ Dikki were also missing. The money/offerings, kept in the mandir, inside the house, were also not there. Thereafter, they went to mortuary, where she saw that gold rings which Anita @ Dikki used to wear, were also not there in her fingers. However, one artificial ring was there in one of her fingers. The police had inquired from her and she made a statement to police. Thereafter, on 23.09.09 she was called in the P.S. Timarpur, where she was shown two persons, whom she immediately identified and told the police that they were present Sessions Case No. 18/10 Page 29/42 30 at the house of her Mausi Anita @ Dikki on 02.09.09. She also asked those two persons as to why they had killed her Mausi Anita @ Dikki, at which they said that "yes, we have killed your Mausi". She tried to strike one of them, but her elder Mausi Monika stopped her and on that, accused persons said that "mara toh mara". On 02.09.09, all those persons were also smoking and Sonu was calling one of them as Guliya and also that "Guliya give me soda". She has deposed that accused Hardeep Guliya is the same person, whom Sonu was calling Guliya on 02.09.09 and thereafter, she had seen him in the police station. She has deposed that on 02.09.09, the accused persons were calling each other as Sonu, Guliya and Babbu. She has deposed that on 23.09.09, she came to know the full name of Guliya as Hardeep Guliya and name of other accused as Ajay Joon @ Babbu.

46 In cross-examination by ld. counsel for accused, PW-9 has deposed that her statement was recorded only once. The I.O did not ask her to sign the said statement. Deceased Anita was living in Delhi for the last so many years. She has deposed that Anita was living in Darjeeling prior to her coming to Delhi. Deceased Anita was having two sisters. On 06.09.09 she received the information about the death of Anita. She did not lodge any report to Police immediately after coming to know about the death of Anita. I.O of this case called her Sessions Case No. 18/10 Page 30/42 31 in PS on 06.09.09 in the morning hours and he recorded my statement. She did not take her husband to dinner on 02.09.09. She did not disclose to her other two mausis about the presence of three persons at the house of deceased Anita. She even did not disclose the aforesaid Mausis about taking of liquor and playing cards by those three persons present at the house of deceased. She did not ask deceased Anita as to why the three persons were taking liquor in her house. She never visited the house of deceased after 02.09.09. Police never seized the clothes of the said persons in her presence. She does not know as to when accused Gulia was arrested by the police. She has deposed that accused Gulia was not arrested by police in her presence. She never visited Tihar jail to identify accused present in the court. She was called by the I.O in the P.S Timarpur and the I.O pointed out towards accused Gulia. She has denied that she has deposed in the court as per the wishes of I.O. She has denied that she had no talk on telephone with deceased Anita on 02.09.09. She has denied that Anita had not called her on that day for dinner. She has denied that she had neither gone to house of deceased Anita on 02.09.09 nor accused met her there. She has denied that her mausi Monika did not disclose about the death of Anita to her on 06.09.09. She has denied that she did not disclose to Monika about Sessions Case No. 18/10 Page 31/42 32 her dinner at the house of deceased on 02.09.09. She has denied that Monika had not called her on 06.09.09 and she never called her at P.S Timarpur. She has deposed that accused Hardeep Guliya, present in court, was not known to her prior to the incident. From 02.09.09 to 06.09.09 she did not take her husband or any other relative to house of deceased to know the reason as to why the accused persons were residing with her. She had told to police in her statement that she asked Anita as to why she told a lie that she was living alone or that she [deceased] replied that one of them namely, Sonu was her Mausa [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had stated to police in statement that thereafter, she wished Sonu [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also stated to police in statement that thereafter, her Mausi Anita took her inside the room and showed the photograph of Sonu kept upon the T.V. [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She also told to police that thereafter, she took the meal but she could not understand the conversation between those persons [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in statement when those persons were taking liquor, she left that place and went home [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had told in her statement to police Sessions Case No. 18/10 Page 32/42 33 that Monika told her about the death of Anita [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in statement that she told Monika that on 02.09.09 she had visited the place of Anita alias Dikki and had taken meal there. [confronted with statement Ex. PW9/DA, wherein it is not so recorded]. She had also told to police in statement that her elder Mausi asked her to come to PS Timarpur and she reached P.S Timarpur [confronted with statement Ex. PW9/DA, wherein it is not so recorded]. She had also told police in statement that thereafter, she, her Mausi and police officials reached the house of Anita [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in her statement that after reaching at the house of Anita the wearing apparels of those persons, which were hanging at the railing were not there. [confronted with statement Ex. PW9/DA wherein it is not so recorded] She had also told to police in statement that photograph of Sonu which was kept on T.V was also found missing [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in her statement that two mobile phones belonging to her mausi Anita were also found missing [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in her statement that the money/offerings kept in the mandir inside the house, were also not Sessions Case No. 18/10 Page 33/42 34 there [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in statement that thereafter, they went to mortuary, where she saw gold rings which Anita used to wear were also not there in her fingers [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in statement that one artificial ring was there in one of the fingers of Anita [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in her statement that she asked two persons, who were shown to her by police at PS Timarpur as to why they had killed her mausi Anita alias Dikki, at which they said that they had killed her mausi [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She has denied that no such talks took place between her and those two persons. She does not remember that her elder mausi Monika stopped her when she tried to strike one of them and then accused persons said that "

maara toh maara". [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She had also told to police in statement that on 02.09.09 all those persons were also smoking and Sonu was calling one of them as Gulia and also that Gulia gave him soda [confronted with statement Ex. PW9/DA wherein it is not so recorded]. She has denied that she being niece of deceased, is Sessions Case No. 18/10 Page 34/42 35 deposing falsely in this case. She has denied that she is an interested witness in this case.

47 In State of Goa V. Sanjay Thakran and Anr., 2007 [3] SCC 755, it has been observed by Hon'ble Supreme Court that " Last seen theory comes into play where the time gap between the point of time when the accused and the deceased was last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases...".

48 It has been further held by Hon'ble Supreme Court that " the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so Sessions Case No. 18/10 Page 35/42 36 small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other Sessions Case No. 18/10 Page 36/42 37 person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."

In Jaswant Gir V. State of Punjab, [2005] 12 SCC 438, it has been observed by Hon'ble Supreme Court that "in the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant on the basis of 'last seen' evidence, even if the version of PW-14 in this regard is believed." 49 In the present case, as per the testimony of PW-9 Rani Tamang, she had seen the deceased alive on 02.09.09 at about 8:00 PM in the company of accused. As per the testimony of PW-10 Udayvir Singh, he informed the police on 05.09.09 at about 7:30 PM by making a phone call at number 100 about a foul smell, coming from H.No. 256-257, third floor, Gandhi Vihar, Delhi, when one Panna Lal informed him about the bad smell. That information was received by Sessions Case No. 18/10 Page 37/42 38 PW-17 ASI Nihala Ram at P.S. Timarpur. He reduced that information into writing vide DD No. 8A, the copy of which is Ex. PW17/A. He [PW-17] directed ASI Gajender on phone to attend the said call. PW-33 ASI Gajender Singh went to the spot alongwith Constable Devender and found that premises No. F-256-257, 3rd Floor, Gandhi Vihar, Delhi was locked and foul smell was emanating from the house. The lock of the premises was broken. He found that a female dead body was lying in the room. The body was in decomposed condition. The tongue and eyes of deceased had come out. He sent Const. Devender to bring a bag for packing the dead body. Constable Devender went to PS and brought a plastic bag alongwith DD No. 8A/Ex. PW33/A. He made his endorsement on Ex. PW33/B and rukka was handed over to Constable Devender for registration of FIR. Crime team was called at the spot. Inspector Jitender Kumar [PW-43] and beat officials of that area also reached at the spot. Inspector Jitender Kumar and crime team inspected the spot. 50 PW-22 Dr. S.Lal has conducted the postmortem on the dead body of deceased. He has deposed the the cause of death was shock and haemorrhagic shock due to antemortem cut throat injuries produced by sharp edged weapon. All injuries were antemortem in nature and recent in duration. Injury No. 1 and 2 were produced by sharp edged weapon and injury No. 1 was sufficient to cause death in ordinary course of nature. Time since death was about 4-5 days. He Sessions Case No. 18/10 Page 38/42 39 has further deposed that there was no injury in and around the vagina which indicate that there was no sexual assault before her death. However, the vagina swab could not be taken because the deceased was in the stage of mensuration. All clothes, viscera of deceased, blood of deceased soaked in a gauze piece and ornaments recovered from deceased body were sealed and handed over to the I.O alongwith the sample seal. He prepared the postmortem report Ex. PW22/A bearing his signature at point A. 51 Since PW-22 has opined the time since death about 4/5 days, it can be concluded that deceased might have died on 02.09.09. 52 In the present case, PW-6 Constable Chetan has taken/developed the chance prints from the spot and submitted his detailed report Ex. PW6/A to the I.O. The developed/lifted chance prints were sent to Finger Print Bureau, Malviya Nagar. 53 In cross-examination by ld. counsel for accused, PW-6 has deposed that he had minutely inspected the spot and minutely seen the dead body. He did not observe any foot prints at or near the spot or near the dead body. He also did not observe any finger prints on the dead body. He has further deposed that he did not observe any finger prints on the main door of the house. No finger print was found or observed on the iron almirah.

54 Later on, those chance prints were examined by PW-37 Sh.

Ravinder Kumar. He has deposed that on examination, the chance prints were found unfit for comparison with specimen slip supplied by the I.O. The report was prepared and signed by him. It was also signed by the Director of the Finger Print Bureau. The chance print report is Ex. PW37/A. In other words, the chance print report also does not show the presence of accused at the spot. 55 Moreover, the weapon of offence i.e. knife, allegedly used by the accused in the commission of murder of deceased Anita, has also not been recovered.

56 So far as the question that accused Hardeep Guliya refused to participate in TIP proceedings, I am of the considered view that the refusal by the accused to face the TIP proceedings will not go against him as he has sufficiently explained the reason as to why he did not face the TIP proceedings. PW-34 Sh. Ashish Aggarwal has deposed that accused submitted to him that he did not want to join the TIP proceedings Ex. PW34/A as he had been shown to the witnesses, when he had surrendered in P.S. Nangloi.

57 It is worth noting that as per the testimony of PW-21 SI Pratap Singh, accused Hardeep was arrested on 11.01.09 at about 6:00 AM from Shani Road Mandir, Bakarwala, Nangloi, on the basis of secret information alongwith co-accused Ajay Joon, when they went to meet their friend Sunil. In cross-examination by ld. counsel for Sessions Case No. 18/10 Page 40/42 41 accused, PW-21 has admitted that Hardeep Guliya was produced in court in an unmuffled face. Since accused Hardeep Guliya was produced in court in an u nmuffled face, I am of the considered view that an adverse inference cannot be drawn against accused in these circumstances.

58 Since the testimony of PW-9 is not corroborated with other facts and circumstances of case, I am of the considered view that conviction of accused cannot be based on the last seen theory, particularly, when the testimony of PW-9 is full of contradictions, as are highlighted in her cross-examination. Moreover, it cannot be ignored that deceased Anita was a tenant in the premises, where the murder took place. Accused Hardeep Gulia was an outsider. Therefore, the possibility of accused Hardeep Gulia leaving the spot before the murder of deceased Anita cannot be ruled out. 59 After going through the evidence on record, I am of the considered view that there is no material on record to connect the accused with commission of crime. All the circumstances, from which conclusion of guilt is to be drawn, are not fully and cogently established. The circumstances are not consistent with the hypothesis of guilt of the accused. They are not of conclusive nature with definite tendency, unerringly pointing towards the guilt of accused. I am of the considered view that the chain of evidence furnished by the Sessions Case No. 18/10 Page 41/42 42 circumstantial evidence is not complete and are leaving reasonable ground for conclusion consistent with the innocence of accused. Accordingly, Hardeep Guliya is acquitted of the offence he was charged with.

60 In this case, accused Hardeep Guliya is on bail. In view of amended provisions of Section 437A CrPC, accused is directed to furnish personal bond and surety bond in the sum of Rs. 10,000/- for a period of six months with the directions that he will appear before Hon'ble High Court as and when any notice is received by him in respect of any appeal filed by the State against the judgment. 61 In this case, accused Sunil P.O. Accordingly, prosecution will be at liberty to re-open the case as and when accused Sunil Sehrawat is arrested.

62 With these observations, file be consigned to Record Room.

Announced in the open court today
on 20.08.11                         (Smt. Bimla Kumari)
                           Additional Sessions Judge-II(North)
                                Tis Hazari Courts, Delhi.




Sessions Case No. 18/10                                            Page 42/42