Delhi District Court
State vs . Vidhya Sagar And Others on 20 May, 2022
IN THE COURT OF SAMAR VISHAL,
ADDITIONAL SESSIONS JUDGE-08,
WEST DISTRICT: TIS HAZARI COURTS: DELHI
CNR NO.: DLWT01-000300-2010
SC No. 57807/2016
State Vs. Vidhya Sagar and Others
FIR No. 92/2010
Police Station: Nihal Vihar.
Under section(s): 302/120-B/34 of Indian Penal Code
and 25/27 of Arms Act
20.05.2022
In the Session Case of :
State
Versus
1. Vidhya Sagar
S/o Triloki Nath,
R/o H.No. S-317, Gali No.11,
Prem Nagar-II, Nangloi
Delhi.
2. Sunil @ Sonu
S/o late Jai Kishan
R/o Old Subzi Mandi,
Ward No.3, Babra Mohalla,
Rohtak, Haryana,
3. Suraj @ Bittu
S/o Sh. Hoshiyar Singh,
R/o Babra Mohalla
Rohtak, Haryana,
FIR No. 92/2010
State vs Vidya Sagar & Others Page No. 1/44
4. Rakesh Kumar @ Raju,
S/o Sh. Ram Kumar
R/o House No. 2627/2, Sector -31,
Rajiv Colony, Rohtak, Haryana.
5. Kishan Kumar Maheshwari
S/o Late Mool Chand
R/o D-146-A, Laxmi Park,
Nangloi, Delhi.
6. Gulab Singh
S/o Sh. Triloki Nath
R/o C-120-A, Kunwar Singh Nagar,
Nangloi, Delhi
Date of Institution : 20/10/2010
Date of reserving Judgment : 25/04/2022
Date of pronouncement : 20/05/2022
Appearances
For the State : Mr. Santosh Kumar,
Additional Public Prosecutor
For accused : Mr. Praveen Dabas, Advocate for Vidya
Sagar
Mr. D.S. Kohli, Advocate for Gulab Singh
Mr. R.S. Malik, Advocate for
K.K.Maheshwari.
Mr. S.S. Saini, Advocate for Rakesh Kumar.
Mr.Dhirender Singh, Amicus Curiae for
accused Suraj and Sunil
JUDGMENT
FIR No. 92/2010
State vs Vidya Sagar & Others Page No. 2/44
1. This is a trial of the murder of Gajraj Sharma on 06/05/2010 at around 9 PM while he was going in his car at Najafgarh Nangloi Road and the six accused Vidhya Sagar, Sunil @ Sonu, Suraj @ Bittoo, Rakesh Kumar @ Raju, Kishan Kumar Maheshwari and Gulab Singh are accused of conspiring together and killing the deceased Gajraj Sharma through the contract killer accused Sunil and are therefore prosecuted in this case. The determination of the fact whether deceased Gajraj Sharma was murdered in furtherance of the conspiracy of accused as alleged by the prosecution is the subject of the present judgment of this trial in which Vidhya Sagar, Sunil @ Sonu, Suraj @ Bittoo, Rakesh Kumar @ Raju, Kishan Kumar Maheshwari and Gulab Singh stood accused of murdering Gajraj Sharma before this Court. At the outset, I must state that the case is based purely on circumstantial evidence and that there is no eye witness to murder.
2. The prosecution alleges that, on 06.05.2010 at about 9-10 PM, an information was received in police station police Nihal Vihar through DD no. 47 A, that some accident had happened at Mansa Ram Hospital, near Narayana Dharm Kanta and three persons were injured in it. SI Kuldeep was assigned this information who with Ct. Pradeep reached the spot that is Najafgarh Nangloi Road near Mansa Ram Hospital, where he saw an accidental Maruti Wagon Car no. DL 2CAC 6681 which collided with a tree after scaling the footpath, near Usha Shri Ram Enterprises A-13/5 Aman Vihar, Nangloi. He came to know that the injured were shifted to Sanjay Gandhi Memorial (SGM) hospital.
FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 3/443. SI Kuldeep then went to SGM hospital. The first injured he found was brought dead to the hospital. His MLC number was 6778. The dead body was shifted to the mortuary for autopsy. He then met in the hospital, two persons who were injured in the accident, Jai Prakash and Mukesh. Their MLC numbers were 6686 and 6779. He recorded their statements. They said that two more persons were injured in the accident who went to Mansa Ram Hospital. SI Kuldeep then went to Mansa Ram hospital where he met injured Kanti Kumar and Uma Shanker. They were under treatment vide MLC no. 019 and 020. SI Kuldeep recorded the statement of Kanti Kumar Ex.PW9/B which became the basis of registration of FIR. According to this statement, on 06.05.2010, he was going to his house on cycle after finishing his duty. At about 9 PM, when he reached at Mansa Ram Hospital, one Maruti Wagon R Car, which was been driven rashly / carelessly, hit him and one more cyclist. It then hit a pedestrian, who was going on footpath and thereafter, after breaking a barber's shop, collided with a tree on the footpath. On the above-said statement of Kanti Kumar, FIR u/s 279/337/304A IPC was registered.
4. On the next day ASI Mahender Singh was deputed for the autopsy of deceased who by that time was identified as Gajraj Sharma. The doctor who conducted autopsy informed ASI Mahender Singh about the bullet injury beneath the right ear of the deceased. The matter was informed to senior officers.
5. The doctor who conducted the autopsy handed the bullet lead recovered from the body of the deceased, his blood clotted cloths and his blood gauze to ASI Mahender who seized them and deposited in police station. SI Kuldeep seized the Wagon R car on 06/05/2010. He FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 4/44 also seized the damaged cycles of the injured. ASI Mahender got the car inspected though crime team which recovered a bullet lead lying among the shattered pieces of glass from the car and seized it. After that, section 302 IPC was added in the investigation and the sections of accident were deleted. The case was then investigated by the new investigation officer Inspector Sahdev Kumar Rana. He recorded the statements of witnesses under section 161 Cr.PC and obtained the post mortem report of the deceased from the hospital, according to which the death was caused by spinal cord damage, consequent upon fire arm injury number-1. Injury number-1 was caused by bullet fired from fire arm. Bullet found stuck in the left side of neck during post mortem was handed to the investigation officer. According to post mortem report injury number-1 was sufficient to cause death in the ordinary course of nature. The car was again inspected by ballistic division of FSL. The scientific officer V.R. Anand gave the control swab and swab H1 to H2 from the car to the investigation officer. The investigation officer seized the shattered glass pieces of front and right-side window pane and a plastic piece of dash board. He then recorded the statement of Babita, who was the wife of the deceased under section 161 CrPC. According to her statement, her husband deceased Gajraj Sharma, accused Gulab Singh and KK Maheshwari started a business in the name of Semicon in 1998 in Nangloi. They make control panels in their factory. They were equal partners in the business. They struck it rich, when the business progressed and sales started inflating, the profits / turn over reached in crores of rupees. Later in order to dodge tax liabilities, they converted the business into three different firms, though in essence the business was same. The name of the firm of FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 5/44 deceased was Semicon, whereas the name of the firms of accused Gulab Singh and KK Maheshwari were Weld Tech and Bharat Components. However, with the progress of profit, the partners started falling apart and disputes emerged between them. Her husband told him that things were not going well in the factory and that accused Gulab Singh and KK Maheshwari have become dishonest and they were cooking the books. Vidya Sagar who is the brother of Gulab Singh was also complicit with them and has fought many times with the deceased for money. She said that the accused asked her husband to leave the business of the factory which he refused on the ground that he had worked very hard to take the business to this level. For few days there was stress in the factory and she raised a strong suspicion on Gulab Singh, KK Maheshwari and Vidya Sagar for this murder.
6. The investigating officer investigated the matter on these lines on his satisfaction with the statement of wife Babita about the business of the three, the division into three firms to save tax and the success made by their business.
7. The chargesheet further states that on 14.07.2010, a secret informer informed the investigating officer that two boys involved in the incident will come on motorcycle at Tikri Border. He formed a team and apprehended those two boys who were coming on a motorcycle no DL8ST 2425. The boy who was driving the bike was Suraj @ Bittu and the one sitting as pillion rider was Sunil. The accused Sunil is stated to be the contract killer who killed Gajraj Singh and he is assigned the role of killing the deceased by the prosecution. On search of Sunil, a pistol was recovered from the right pocket of his trouser, which was loaded with four live cartridges. The investigating FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 6/44 officer seized the pistol, the cartridges and the motorcycle. They both were arrested after interrogation. The accused Sunil then made a confessional statement to the police that a person Rakesh (later made accused) who was known to him, introduced the accused Vidya Sagar to him. Vidya Sagar wanted him to kill a man and he (Sunil) agreed to kill that person for four lakh rupees. The accused Rakesh was to be given Rs.25,000/-. Sunil received Rs.1,00,000/- out of which he purchased the pistol for Rs.40,000/-. In April 2010, accused Vidya Sagar called him in Delhi. They met at Nangloi Railway crossing where Vidya Sagar shown him Gajraj Sharma, who was going in his Wagon R car, who was the target and whom he had to kill. He tried to kill him in April also. On 02.05.2010, Vidya Sagar asked him to kill the deceased on 06.05.2010 when he will come out of the factory. On the date of incident that is 06.05.2010, the accused Sunil and Suraj went to Nangloi railway crossing and met the accused Vidya Sagar. After around half an hour, Gajraj Sharma came in his Wagon R car. Suraj and Sunil followed him. Suraj was riding the bike. He followed the car. After a little chase they came to the side of the car. Sunil fired two rounds on Gajraj Sharma which killed him instantly. They slipped from there and reached Bahadurgarh where Vidhya Sagar met them. They informed him that the task was executed. After three four days they again met Vidhya Sagar, who gave them two lakh Rupees. Out of this, he gave Rs.15,000 to Suraj and Rs.25,000 to Rakesh in Rohtak. They were going to take the remaining money on that day when they were apprehended by the police. He confessed that his mobile phone number was 9992509567, that of Suraj was 9253164302, of Rakesh was 9728078579 and the numbers of Vidhya Sagar were 9971671046 and FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 7/44 8010557695. This was the story developed in the confessional statement of Sunil.
8. The accused Suraj also made the similar confessional statement to the police. They both shown those places to the police where they met Vidhya Sagar and the place where they shot the deceased.
9. The investigating officer then took both the accused to the house of Vidhya Sagar on the same day in Nangloi and on their identification arrested him. The investigating officer recorded the confessional statement of Vidya Sagar which had facts substantiating the complaint made by the wife of the deceased and the confessional statements of Sunil and Suraj. On 15.07.2010, the investigating officer obtained the police custody remand of two days of all these three accused. During the remand accused Suraj and Sunil kept parrying the efforts of investigating officer to recover something at their instance to make their confessional statement more reliable but both the accused did not get recovered anything. They said that they have broken the mobile phones and spend the money.
10. At the instance and identification of the accused Vidya Sagar, the investigating officer apprehended KK Maheshwari, the fourth accused of this case from his house in Nangloi and arrested him. The investigating officer recorded a similar confessional statement of the accused KK Maheshwari. He confessed that he, Vidhya Sagar and Gulab Singh hatched the conspiracy to kill Gajraj Sharma because he used to fight in routine with them in relation to the business of the firms. The accused Vidya Sagar met with the accused Sunil and engaged him to kill deceased Gajraj Sharma. On that day he talked to FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 8/44 Vidhya Sagar on phone. His phone number was 9810434628, Vidya Sagar's phone number was 8010557695 and 9971671046. The phone number of Gulab Singh, the accused was 9810684489. He and Gulab Singh had given Rs. Three lakhs to Vidya Sagar. The investigating officer seized the phone number 9810434628 of KK Maheshwari. He said that he went to Punjab and Gulab Singh went to Hyderabad in order to avoid suspicion. On 17.07.2010, the investigating officer took the accused Sunil and Vidhya Sagar to Rohtak to search the accused Rakesh. He arrested the accused Rakesh on the identification of the accused Sunil and Vidhya Sagar. The accused Rakesh confessed that he introduced Sunil to Vidhya Sagar and that he was to be given Rs. 25,000 after the work was done. The investigating officer seized the mobile phone of Rakesh number 9728078579. It is pertinent to mention here that till the arrest of these five accused, the investigation officer has only the confessional statements of these five accused implicating each other, apart from the firearms recovered from the accused Sunil.
11. After that the investigating officer sent the seized exhibits of this case to FSL Rohini for expert opinion. He obtained the call detail records of all these five accused from the concerned mobile companies and analysed those call details. He found that the accused Vidhya Sagar (997167046) and Sunil (9992509567) talked with each other 21 times between 01.04.2010 and 07.05.2010. He also found that Vidya Sagar talked with Sunil, 25 times from his other mobile phone number 8010557695 during that period out of which fourteen calls were between 03.05.2010 and 06.05.2010. He came to the conclusion that on 06.05.2010, the location of Sunil having phone number 9992509567 at 8.04 PM was at Mubarakpur road, at around 8.57 PM at Lokesh FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 9/44 Cinema and after that was at Bahadurgarh. The location of Vidya Sagar with phone number 9971671046 on that day between 8.00 to 9.27 PM was at Prem Nagar and after that on route to Bahadurgarh. Vidya Sagar told this fact in his confessional statement also that after murder he met Sunil in Bahadurgarh. It became also clear that the location of Sunil and Vidya Sagar was at the same place at 8.00PM and at the time of murder the location of accused Sunil was near the place of murder. It was further revealed that the accused Vidya Sagar talked to KK Maheshwari (9810434628) from his both phones 13 times before the murder and 11 times after it. The investigation officer analysed the call details of the accused KK Maheshwari and found that between 06.05.2010 and 07.05.2010, he talked with Gulab Singh 33 times. On 06.05.2010, they both kept talking throughout the night. The investigating officer also found that the accused Vidya Sagar and Rakesh talked with each other 81 times between 01.04.2010 and 07.05.2010. It also became clear to him that the accused Sunil, Vidya Sagar and Rakesh were in continuous touch with each other through phone and the accused Vidya Sagar, KK Maheshwari and Gulab Singh were also in continuous touch with each other. The investigating officer interrogated a witness Rinku Bhatnagar who was an advocate. He said that the accused Sunil was his client and confirmed his phone number as 9992509567. The investigating officer also interrogated the witnesses Sanjeev Luman and Abhishek Vikram Pandey who confirmed that Gajraj Sharma, KK Maheshwari and Gulab Singh were partners in a business. In order to avoid tax liabilities, they formed three separate businesses though the business was in effect the same.
FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 10/4412. Lastly the investigating officer concluded that the accused Gulab Singh deliberately went to Hyderabad and KK Maheshwari deliberately went to Punjab. Vidya Sagar, KK Maheshwari and Gulab Singh hatched a criminal conspiracy to eliminate Gajraj Singh. They engaged the accused Sunil as a contract killer through Rakesh for a sum of rupees four lakhs to kill Gajraj Sharma. The accused Sunil finally executed Gajraj Sharma in pursuance of that conspiracy with his associate Suraj on 06.05.2010, when he was going in his car. The accused Vidya Sagar, KK Maheshwari, Sunil, Suraj and Rakesh were arrested whereas the accused Gulab Singh absconded against whom the appropriate legal proceedings were initiated. With these findings the investigating officer filed the chargesheet in the court and stated that after he will file a supplementary chargesheet in the court after obtaining the FSL result.
13. After winding up the investigation, investigation officer came to the conclusion that sufficient evidence was collected to establish that the accused Vidhya Sagar, Sunil, Suraj @ Bittu, Rakesh Kumar @ Raju, Kishan Kumar Maheshwari and Gulab Singh hatched a conspiracy and committed murder of Gajraj Sharma. Accordingly, chargesheet against all the accused except accused Gulab Singh, who was absconding, was filed on 07.10.2010 in the court of learned Metropolitan Magistrate who after complying with the provisions stipulated under Section 207 Cr.P.C committed the case to the court of Session for 16.11.2010.
14. Thereafter, accused Gulab Singh was arrested on 01.12.2010 and supplementary chargesheet against accused Gulab Singh was also filed FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 11/44 in the court of learned Metropolitan Magistrate on 13.12.2010, which was also committed to the court of Session.
15. The trial started with framing of charge. After hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused persons, court through its order dated 22-03- 2011, framed charges for the commission of offences punishable under Sections 302 IPC and 120B IPC against all the accused and charge under Section 25 & 27 of the Arms Act against accused Sunil @ Sonu. The accused did not plead guilty and claimed trial.
16. In order to prove its case, the prosecution examined 45 witnesses in all. I will deal with prosecution evidence while explicating on the appreciation of evidence.
17. After conclusion of prosecution evidence, the accused were examined under section 313 Cr.P.C and the incriminating evidences appearing in evidences were put to them. The examination of accused Suraj @ Bittoo and Sunil was done on 13.02.2017 while the examination of the accused Rakesh Kumar, Krishan Kumar Maheshwari and Vidhya Sagar was recorded on 21.02.2017. Statement of accused Gulab Singh was recorded on 25.02.2017. Accused denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they have been falsely implicated in the case. Only accused Vidya Sagar and Gulab Singh chose to lead evidence in their defence and got examined Imran as DW-1.
18. Before explicating on the appreciation of evidence, I am conscious of the fact that this case is based on circumstantial evidence. There is no direct evidence against the accused persons meaning FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 12/44 thereby there is no eyewitness who can say that he has seen the murder while it was being committed. The appreciation of evidence in cases of circumstantial evidence is more complex than in cases of the direct evidence. Hon'ble Supreme Court in the celebrated judgment of Sharad Birdhichand Sarda vs State of Maharastra (1984) 4SCC 116 has elaborately considered the standard necessary for recording a conviction on the basis of circumstantial evidence which are-(a) the circumstance from which the conclusion of guilt is to be drawn should be fully established, (b) the facts so established should be consistent only with the hypothesis of guilt of the accused that is to say, they should not be explainable on any hypothesis except that the accused is guilty, (c) the circumstances should be of a conclusive nature and tendency, (d) they should exclude every possible hypothesis except one to be proved and (e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
19. The Hon'ble Supreme Court in the case of Kali Ram v. State of H.P. (1973) 2 SCC 808, has further explained the most intrinsic and sacred principle of criminal jurisprudence regarding circumstantial evidence by observing that the golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 13/44 laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures, or fanciful considerations. The Hon'ble Court quoted from State of Punjab v. Jagir Singh that a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
20. The Hon'ble Court also cautioned that wrongful acquittals are undesirable and shake the confidence of people in the judicial system FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 14/44 much worse, however, is the wrongful conviction of an innocent person.
21. While dealing with a case based upon circumstantial evidence, Hon'ble Supreme Court, in the case of Birendar Poddar v. State of Bihar (2011) 6 SCC 350, has held that it is true that in cases where death takes place within the matrimonial home, it is very difficult to find direct evidence. But for appreciating circumstantial evidence, the court has to be cautious and find out whether the chain of circumstances led by the prosecution is complete and the chain must be so complete and conclusive as to unmistakably point to the guilt of the accused. It is well settled that if any hypothesis or possibility arises from the evidence which is incompatible with the guilt of the accused, in such case, the conviction of the accused which is based solely on circumstantial evidence is difficult to be sustained.
22. In Hanumant vs The State of Madhya Pradesh AIR 1952 SC 343, Hon'ble Supreme Court cautioned that while dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge ((1838) 2 Lew. 227), where he said that the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters to overreach and mislead itself, to supply some little link that is wanting, FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 15/44 to take for granted some fact consistent with its previous theories and necessary to render them complete.
23. Now with these parameters of law regarding circumstantial evidences and being conscious of the fact that the burden of proof in a criminal trial is always on the prosecution and it never shifts and to secure a conviction, the prosecution has to prove its case beyond reasonable doubt on the basis of acceptable evidence, I will proceed for the appreciation of evidence. It is a settled principle of criminal law jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a straight- jacket formula or principle which would apply to all cases without variance and every case has to be appreciated on its own facts and in light of the evidence led by the parties. It is for the Court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.
24. Coming now to this case. The prosecution in this case has relied upon five main circumstances to point towards the guilt of the accused. These circumstances are - (1) Homicidal death (2) motive (3) continuous communication through phone calls, (4) conduct of the accused after the crime (5) recoveries and (6) Confessions.
25. The first circumstance relied by the prosecution is that the death of the deceased was homicidal. He was shot dead while he was going in his car. In order to prove this fact, PW3 Dr. Manoj who conducted the autopsy Gajraj Sharma at around 11 AM on the next day of incident FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 16/44 has been examined. According to his testimony he and Dr. Deepak conducted post-mortem upon the dead body at 11.00 a.m on 07.05.2010. The dead body was identified by Sohan Lal, father of deceased and Kurmesh, brother-in-law of deceased and the alleged history was of accident of Wagon-R of deceased on 06.05.2010 at 10.00 p.m. He found three external injuries on the dead body as mentioned in post mortem report Ex. PW 3/A, which are (1) Firearm entry wound (1.5x1) cm, with abrasion collar, burning 0.5cm around wound, tattooing with a diameter of 9 cm around wound, present 3 cm right ear, (2) Burning (.5x.5)cm, blackish present 0.5 cm above injury No. 1 behind right ear, just below hairline and (3) Swelling (4x3)cm present behind left ear, 5 cm posterior to left ear. In the post-mortem report Ex.PW3/A, upon internal examination of neck soft tissues, the autopsy surgeons found the following injuries:-"On fine dissection of neck from back, effusion of blood present in the soft tissues and muscles of back of neck, with multiple fracture of C1,C2, C3 and complete laceration of spinal cord between C1 to C3. Bullet found between left, posterior muscles and left tissue of neck, just below injury No. 3. Track of bullet fire arm injury is from right posterior side of neck to left side, slightly above to downwards, slightly posteriorly to anteriorly, cutting soft tissues, muscles, C1 to C3, spinal cord in its path". Autopsy surgeon also found a bullet during post mortem from left side of neck, which was handed over in sealed condition to the investigating officer. Dr. Manoj stated that in his opinion, the death was caused by spinal cord damage consequent upon fire arm injury (injury No. 1) which was caused by a bullet recovered during post-mortem, which was fired by a fire arm. Injury number 1 was sufficient to cause FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 17/44 death in the ordinary course of nature. Therefore, this medical evidence has established that the death of Gajraj Sharma was homicidal. The question now which needs to be determined is that weather all the accused hatched the conspiracy to kill him and Sunil ultimately killed him as alleged.
26. For this the second circumstance alleged is motive and that the accused Vidya Sagar, Gulab Singh and K.K. Maheshwari were inimical to Gajraj Sharma and therefore they had the motive to eliminate him. In this regard, the most important witness examined by the prosecution in the case is the wife of the deceased. She has tried to prove the motive behind this murder which is the dispute relating to the business between the three partners which led to the murder of her husband Gajraj Sharma. She has been examined as PW7. According to her evidence in the year 1998, her husband, started a factory of making control panels in Nangloi in the name of Semicon Controls. The accused Gulab Singh and KK Maheshwari were the partners of equal shares with her husband. The business was successful and the turnover grown into crores of rupees. In order to avoid excise duty, two more firms in the name of Weld Tech and Bharat Controls were made. KK Maheshwari became the proprietor of Bharat Controls and Gulab Singh became the proprietor of Weld Tech. Her husband Gajraj Sharma took the proprietorship of Semicon Controls. Around six months prior to the murder, her husband told her that the things in the firm are not in order and the business is not being conducted properly. Gulab Singh and KK Maheshwari had become dishonest and there have been frequent quarrels between the three partners. There was a quarrel between her husband and Gulab Singh at around 1:30 AM in the night around two FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 18/44 and half months before the date of incident. On 24.04.2010, her husband went to Dubai and 2/3 days before that date, the three partners had a dispute with respect to business in her house. Her husband thrown the keys of the factory and ledger books and asked Gulab Singh and KK Maheshwari to remain honest in business. Her husband also had a quarrel with accused Vidya Sagar and that's why Gulab Singh got annoyed with her husband due to the bad treatment of Vidya Sagar by her husband. Her husband told her that Gulab Singh and KK Maheshwari had been pressurising him to leave the business of the firm and do his own business though her husband had refused. She tried to convince her husband that he should leave the business and to start his own business as Gulab Singh and KK Maheshwari were not good people. She deposed that there has been tension in the factory on account of these developments. On the date of incident that is 06/05/2010, at around 10 AM, she received a telephone call from her husband that he had reached Delhi airport from Dubai. He reached home at around 11 AM and immediately thereafter received a call from Gulab Singh who asked him to go to the factory however since her husband was tired, he remained at home. On further insistence he disconnected the phone. Her husband went to the factory at around 6 PM. She talked with him at around 8.30/8:45 PM. After that she could not talk to her husband as his mobile phone was switched off. At 10:30 PM, she made a call to Gulab Singh to give the mobile number of VK Sharma who was the friend of her husband and was living in Nangloi. Gulab Singh told her that her husband was with VK Sharma and he met with an accident. She made a call to VK Sharma who informed her that her husband had met with an accident and he was asked by Gulab FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 19/44 Singh to reach the spot of accident. On 02.12.2010, she handed over the documents related to the firms to the investigating officer who seized them through seizure memo Ex. PW7/A. She proved those documents as Ex. P1 to Ex. P4. She obtained the document Ex.P3 from the accountant Abhishek Vikram Pandit and accused KK Maheshwari as the income tax return of Semicon Controls was to be filed. She proved the death report of her husband as Ex. PW7/B. She proved certain documents relating to the firms as Ex. PW7/C, Mark A, Mark B, Mark C, Mark D, Mark E, Ex.PW7/D and Ex.PW7/E. In January 2007, her husband started another industry by the name of Ananta Industries in which Pawan and Gulab Singh were partners. She proved a photocopy of the registration of that small scale industry as Mark F. On 11.10.10, after the death of her husband she sold her husband's share in the said partnership to Pawan through GPA Ex.PW7/F. Finally, she deposed that she suspected that the accused Gulab Singh, Vidya Sagar and KK Maheshwari got her husband killed in order to grab the business by hatching a conspiracy in this regard.
27. In her aforesaid testimony she made an attempt to prove the motive in this case, but apart from her oral statement there is no other corroborative evidence. She had tried to show that the accused partners and her husband in order to avoid excise duty, made two more firms in the name of Weld Tech and Bharat Controls. KK Maheshwari became the proprietor of Bharat Controls and Gulab Singh became the proprietor of Weld Tech. The separation was for in name only and the business was one. But there is no such evidence to show these facts. Her cross examination shows that she does not possess much knowledge about the business of her husband and the partner accused.
FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 20/44In cross examination, she deposed that she knew little about the transactions, profits and liability of the business of her husband. She was not aware about the customers of the business of her husband. She had no knowledge about the transactions, profits, liabilities with the particular customer till the death of her husband. She had no knowledge about the excise duties paid by her husband or the accused. She stated that the turnover of the business up to April 2010 was around Rs.65 lakhs. She had no knowledge about the income tax paid by her husband. She had no technical knowledge about the control panels and about the nature of the business carried on by the firm. This evidence and the further evidence of other witnesses will show that the prosecution is not able to prove that the accused and the deceased had a single business and in order to avoid any taxes, they separated their firms or that the accused partners become dishonest and wanted to eliminate the deceased. She herself stated in cross examination that the turnover of the firm till 2010 was around Rs 65 lakhs, thereby belying her assertion that when the profits reached crores of Rupees, the accused partners became dishonest. The cross examination of the investigating officer shows that not much investigation has been done on this aspect. He deposed that he did not see the partnership deed of the firm M/s Semicon System and Controls. He stated that in order to ascertain the veracity of the version of the wife of the deceased in respect to the allegations of constitution of M/s Semicon System and Controls and the details in respect of its constituting partners, he examined the chartered accountant and examined the statements of accounts. But he did not make the chartered accountant as a witness. He did not file any documents to substantiate that M/s Semicon System FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 21/44 and Controls was constituted in 1998 with three partners - Gulab Singh, KK Maheshwari and Gajraj. He has not conducted any investigation in respect of the fact about the sale of the firm and on what sale the firm was liable to sales tax or excise duties. He admitted that except the statement of the wife of the deceased, he did not come across any ocular or documentary evidence to corroborate the conclusion that M/s Semicon System and Controls was constituted in 1998 by the three partners -Gajraj, Gulab Singh and KK Maheshwari. He did not find any evidence regarding the deceased co-owing any property with the accused Gulab Singh or KK Maheshwari.
28. The evidence of this witness further suggests that the question of any enmity or quarrel between the partiers did not emerge on the scene before the death of Gajraj Singh. In fact, at some places, she stated that she was on visiting terms with some of the accused. She has stated in her cross examination that the family of KK Maheshwari and her family had visiting terms. There was a jagran about one and half months prior to the incident in the house of accused KK Maheshwari. She and her family including her husband attended the jagran and had dinner there. She knew Gulab Singh and his family since the year 1988. Gulab Singh has two children so has she. Both the families had cordial relations and they used to live nearby. Their houses were separated by seven-eight houses between them. The prosecution witness PW-37 Pankaj Singh Chauhan in cross examination stated that he knew Gajraj Sharma. He was the partner with Gulab Singh till 2006. Thereafter they separated their business. He attended the cremation of Gajraj Sharma. At the cremation, the wife of Gajraj was saying that one Pawan(partner of another business) was involved in the murder of FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 22/44 Gajraj Sharma, who was his partner in Bombay. The defence witness Imran has stated that the relation between Gajraj Sharma and Gulab Singh were cordial during the life time of Gajraj Sharma. He never came across any information about any altercation between deceased Gajraj Sharma and accused Gulab Singh or between Gajraj Sharma or Vidya Sagar.
29. Regarding the alleged incident of a quarrel about two months prior to the murder between the deceased and the accused Gulab Singh in a park in front of her house or the quarrel 2-3 days before 24.04.2010 when her husband went to Dubai, there was nothing in her statement which was recorded by the investigating officer in this case. She has not said anything about these quarrels in her statement to the police and appears to have improved upon her statement when given in the court and for this reason there is a lot of confrontation of her evidence by the defence. In her cross examination she stated that she came to know about the murder of her husband when his body reached their residence on 07.05.2010. On that day, she had no suspicion on the accused that they were involved in the murder of her husband. Her suspicion fell on the accused after 2-3 days. During those 2-3 days she was not normal and did not raise this suspicion with her father-in-law. She did not tell the police even after 2-3 days about her suspicion on the accused. Her father-in-law told her to remain silent upto teharvi and that is why she did not talk about this to police. Though interestingly the father-in-law in his evidence has not said anything like. He said that after the deceased was cremated, he has no discussion with anybody why his son was murdered. Therefore, not only this fact that there were any business rivalries between the accused and the deceased does FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 23/44 not inspire confidence but also the suspicion of this witness who is the wife of the deceased on the accused also does not inspires any confidence. There is a delay of around 14 days in recording of her statement. Her first statement was recorded by the investigating officer on 20.05.2010 that is almost after 14 days of the incident. Till 20.05.2010, when her first statement was recorded, she had not come up with any kind of complaint of any manner against the accused nor raised any suspicion on them.
30. The next important witness who could have proved the existence of motive behind the murder is the father of the deceased but his testimony is silent in this regard. PW-5 Sohan Lal father of Gajraj Sharma's testimony is to the effect that on 06/05/2010 in the night, he received an information from some unknown person, that his son met with an accident. He went to the house of his son in Nangloi and next morning he went to the spot of accident and saw the car in accidental condition. From there he went to the police station where he came to know that his son has died and then he went to the mortuary of Sanjay Gandhi Memorial Hospital where he identified the corpse of his son. His statement Ex.PW5/A was recorded by the police. He identified the body of his son vide memo Ex.PW5/B. He stated that he and his son used to talk on the matter relating to business and personal issues. But despite that he did not talk about any enmity between the accused and the deceased in his examination-in chief. After the incident, the wife of Gajraj Sharma and his children were residing with this witness but this witness states that there had been no discussion with anyone why his son was murdered. Therefore, the testimony of this witness who is the father the deceased does not bring out any motive or enmity for the FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 24/44 accused to commit this crime and according to his testimony even the wife of the deceased did not convey to him any suspicion on these accused.
31. Two other witnesses examined by the prosecution to show sour business relations and that the businesses were separated for in name only are Sanjeev Kumar and Abhishek Vikram Pandey. They were examined by the prosecution to corroborate the facts stated by the wife of the deceased. But they had to be cross examined by the public prosecutor as they did not say what the prosecution wanted them to say.
32. PW-8 Sanjeev Kumar was the landlord with respect to the property where the business was carried out. According to his testimony he was the owner of Adarsh Nursery situated on Kirari Road, Nangloi, Delhi. He had around 55-60 godowns which were earlier named as Nursery. In the year 1999, he had given godown No.5 to Satish, Gulab and Gajraj on rent. In fact, he had given this godown on rent to Satish only, the others were working with him. They used to manufacture electric panels there. Satish separated from others 4-5 years later. Thereafter, Gulab, Gajraj and Maheshwari took another godown No.3 on rent. He does not know if the said godown was taken on rent by them collectively. Many employees used to work there but he cannot say whether they were employees of all of them. He had employed one boy Imran to collect rent from them. Imran used to inform about the collection of rent but does not used to disclose the names of the persons who give the rent. He identified accused KK Maheshwari, Gulab Singh and Vidya Sagar in the court. After the death of Gajraj Sharma, he had not received the rent from the above said tenants. The said witness was cross examined at length by learned FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 25/44 Additional Prosecutor for the State, but he denied all the suggestions given to him despite being confronted with his statement under Section 161 Cr.P.C. Ex.PW8/A. This confrontation of the witness by the prosecution from his statement under Section 161 Cr.P.C. also does not support the prosecution in any manner. He clearly said that he was not aware of the turnout of the business or that the accused KK Maheshwari or Gulab Singh absconded after closing their business after the incident.
33. PW-10 Abhishek Vikram Pandey who used to look after the accounts of all the three firms Semicon Control, Weldtech Control and Bharat Component is also of no use to the prosecution as he has not said anything in support of it. He told the court that from July 2007 till the murder he was working as accountant in Semicon. He also looked after the accounts of Bharat Component and Weldtech Control as part time. He came to know that these firms were joint. The proprietor of Semicon was Gajraj Sharma, of Bharat Component was KK Maheshwari and of Weldtech Control was Gulab Singh. All these firms were joint and they used to sell and purchase articles from each other. The offices of these firms were different as well as their employees. The firms have separate accounts. There is no record of salary of employees of these offices as the salary was paid in cash. In cross examination by the learned prosecutor, he denied his knowledge that the three firms were created to save the excise duty or that these three firms were run by Gajraj Sharma and they were separate for the sake of name only. In cross-examination by defence he stated that the document Ex.PW10/B was got written by him under pressure in the police station and it was not voluntary. He has written this letter on the FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 26/44 instruction of investigating officer S.K. Rana. In this letter, this witness is shown as written that the three firms were made to save excise duty and the business was controlled by the deceased. Further, in his cross examination he has stated that the vouchers/deposit forms of all the firms were deposited by him which were Ex.PX(72 pages). He denied that he stated to the police that the turn-over of all the firms was increasing day by day and that the profits have increased from lakhs to crores. Therefore, this witness completely demolished the prosecution version that three firms were crafted out of the business to save the duties which led to the cleavage in the relation between the partners and the ultimate elimination of deceased Gajraj Sharma.
34. Another important witness is PW-12 A.S. Rao, Chief Manager of Corporation Bank. He has deposed about a notice issued to him by the investigating officer under section 91 Cr.PC on 28.08.2010. In response to the notice, he supplied the original documents of the account numbers CBCA/01/000221, 01/002386 and CBCA01000003 through letter Ex.PW12/A. These documents were seized by the investigating officer through seizure memo Ex.PW12/B. He proved these documents, Ex.PX(1-7). Nothing about the business or any supposed motive has come out in his testimony also. The defence did not even cross-examine the witness.
35. Therefore, the aforesaid discussion on motive proved that there is no evidence on record to show that the profits of these firms reached crores of rupees or that these three firms were separated to save some duties. There is no evidence that with the progress of the business, disputes arose or that the accused were fudging or manipulating the accounts. There is no evidence of any tension among the partners in the FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 27/44 factory. The accountant has been examined who has not corroborated all these facts which has come in the evidence of PW-7, the wife of the deceased. She is the wife of the deceased and therefore a related witnesses and therefore her testimony is required to be taken into account cautiously. Therefore, for want of any corroborative evidence in this regard, the testimony of the wife is not sufficient to believe the existence of these facts. It cannot be lost sight of the fact that her first statement was recorded almost 14 days of the incident, she made improvements in her statement in court and merely had suspicion on these accused, nothing more than that, that too, without any evidence. Therefore, it does not stand proved that the accused had any motive to eliminate the deceased Gajraj Sharma.
36. The third circumstance relied upon by the prosecution is constant communication between the accused persons on phone before and after the murder. In his chargesheet the investigating officer has mentioned that he found that the accused Vidhya Sagar (997167046) and Sunil (9992509567) talked with each other 21 times between 01.04.2010 and 07.05.2010. He also found that Vidya Sagar talked with Sunil, 25 times from his other mobile phone number 8010557695 during that period out of which fourteen calls were between 03.05.2010 and 06.05.2010. He came to the conclusion that on 06.05.2010, the location of Sunil having phone number 9992509567 at 8.04 PM was at Mubarakpur road, at around 8.57 PM at Lokesh Cinema and after that was at Bahadurgarh. The location of Vidya Sagar with phone number 9971671046 on that day between 8.00 to 9.27 PM was at Prem Nagar and after that en route to Bahadurgarh. Vidya Sagar told this fact in his confessional statement also that after murder he met Sunil in FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 28/44 Bahadurgarh. It became also clear that the location of Sunil and Vidya Sagar was at the same place at 8.00 PM and at the time of murder the location of accused Sunil was near the place of murder. It was further revealed that the accused Vidya Sagar talked to KK Maheshwari (9810434628) from his both phones 13 times before the murder and 11 times after it. The investigation officer analysed the call details of the accused KK Maheshwari and found that between 06.05.2010 and 07.05.2010, he talked with Gulab Singh 33 times. On 06.05.2010, they both kept talking throughout the night. The investigating officer also found that the accused Vidya Sagar and Rakesh talked with each other 81 times between 01.04.2010 and 07.05.2010. It also became clear that the accused Sunil, Vidya Sagar and Rakesh were in continuous touch with each other through phone and the accused Vidya Sagar, KK Maheshwari and Gulab Singh were also in continuous touch with each other.
37. Now Sunil is alleged to be the main person who shot the deceased. The investigating officer says that Vidyasagar and Sunil talked with each other 21 times with one phone of Vidya Sagar and 25 times with other phone of Vidya Sagar in a span of 37 days that is from 01.04.2010 to 07.05.2010. Even if we believe that the phone numbers 997167046 and 8010557695 are of the accused Vidya Sagar because they are shown to have been recovered from him, there is no evidence to show that the phone number 9992509567 which is stated to be of the accused Sunil was actually his phone number. The reason is that when Sunil was arrested on 14.07.2010 on the identification of a secret informer, no phone was seized from him. Even during his police custody remand, the police could not recover any phone. The number FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 29/44 9992509567 belongs to one Jagjeet as per the evidence of Nodal Officer PW-17 Amar Nath. Prosecution also examined PW-14 Rinku Bhagnagar to connect this phone to Sunil. It is stated that Rinku Bhatnagar is an advocate and the accused Sunil was his client. This witness used to talk to Sunil on this phone number. However, this witness did not support the prosecution, was cross examined by the state and in cross examination by defence, he stated that he cannot specifically tell as to which accused in the name of Sunil this case pertains to. He did not confirm that this number was of accused Sunil. One last attempt was made by the prosecution through PW-31, a co- prisoner in some other case to prove that this phone belongs to Sunil but this witness also said that he had never talked with Sunil over phone and he did not know the mobile number of Sunil. About the accused Vidya Sagar, there is no record from the service provider that the aforesaid two numbers assigned to him actually belongs to him. So, this theory of prosecution that the accused Sunil and Vidya Sagar talked to each other 46 times as stated above is not proved. For same reason the assertion of the investigating officer about the locations of the phone number of accused Sunil at places connected with this case, remains unproved.
38. The other circumstance revealed by the investigating officer is that the accused Vidya Sagar and KK Maheshwari talked with each other 13 times before the murder and 11 times after it. The accused KK Maheshwari and Gulab Singh talked with each other 33 times on 06.05.2010 and 07.05.2010 and kept talking throughout the intervening night. According to prosecution, the accused KK Maheshwari and Gulab Singh were partners in the business with the deceased. The FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 30/44 accused Vidya Sagar is the brother of Gulab Singh. The phone number 8010557695 allegedly recovered from Vidya Sagar is in the name of Shankar Singh( not examined as witness) as per the evidence of PW-18 Rajiv Sharda, the nodal officer of mobile company. Nobody from the service provider mobile company has been examined to show that the other number of Vidya Sagar ie. 9971671046 belongs to him. The accused Vidya Sagar and Rakesh talked with each other 81 times between 01.04.2010 and 07.05.2010. Rakesh Kumar was arrested on 17.07.2010. His phone was seized on the same day whose number was 9728078579 but no witness from the service provider has been examined that his number belongs to the accused Rakesh.
39. Though these conversations show that these accused were in contact with each other even if we discard that in most of the cases the mobile numbers have not been proved to be of these accused, these conversations are a weak piece of evidence. We do not know whether the frequency of their talks was same before 01.04.2010 and that the frequency of talks shown by the investigating officer are unusual keeping in mind the frequency of their conversations before or after the murder. Therefore, the evidence of conversations does not supply any link to the chain of circumstances which is required to be established in the cases of circumstantial evidence. Further the accused Gulab Singh and KK Maheswari were partners of a same business and Vidhyasagar was the brother of Gulab Singh. They must otherwise also be in touch of each other and it does not appeal that they will use the phone to hatch a conspiracy when they can do it meeting themselves. These phone calls may be indication of the fact that something may be cooking between them but this fact still remain confined in the realm of FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 31/44 suspicion only and does not have the probative force of an established evidence.
40. The fourth circumstance is the conduct of the accused after the crime. It is alleged that the accused absconded after the murder which shows their guilty minds.
41. As far as law in this regard is concerned conduct is relevant piece of evidence in cases of circumstantial evidence. The evidence of conduct, like motive is relevant in section 8 of the Indian Evidence Act and in fact the illustrations (f) & (h) of section 8 makes absconding of the accused a relevant fact. But the mere fact that the accused was absconding after the crime is no inference of his guilt. In Matru Vs State of UP (1971) 2 SCC 75, it was observed by the Hon'ble Supreme Court that mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.
42. In the case of Dhananjoy Chatterjee vs State of W.B, (1994)2SCC 220, it was observed that abscondence by itself is not a circumstance which may lead to the only conclusion consistent with FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 32/44 the guilt of the accused because it is not unknown that innocent persons on being falsely implicated may abscond to save themselves but abscondence of an accused after the occurrence is certainly a circumstance which warrants consideration and careful scrutiny.
43. Now the facts of the case shows that it has not been proved that any of the accused actually absconded after the commission of the crime. There may be some doubt about the accused Gulab Singh because he was arrested late on 01.12.2010 when surrendered in the court after the process under section 82 Cr.PC issued against him. But the other accused were easily found by the investigating officer. The first arrest was of the accused Sunil and Suraj. This was on the basis of some secret information. The arrest was made on 14.07.2010, when both of them were coming on a motorcycle from Tikri Border. It shows that these accused have not absconded anywhere but roaming freely. When they disclosed the role of other accused in this case, the investigating officer took them to the house of accused Vidya Sagar and on the same day accused Vidya Sagar was arrested from his house in Delhi. It means that the accused Vidya Sagar did not run anywhere and was present in his house and easily apprehended by the investigating officer in the first instance only without any efforts. Then on the next day, the co-accused KK Maheshwari was arrested similarly from his house at the instance of the accused Vidya Sagar on 15.07.2010 and with the similar ease, the fifth accused Rakesh was arrested from outside his house in Rohtak on 17.07.2010. It shows that all these five accused were arrested by the investigating officer easily and there is nothing which shows that they actually absconded after the crime. About Gulab Singh, it is stated by the investigating officer that FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 33/44 he went to Hyderabad. In order to show this, two witnesses have been examined but their testimonies shows that Gulab Singh regularly go to Hyderabad for business purposes and on the date of incident also he was there for business purpose and this fact has been proved by none other than the prosecution witnesses. According to the testimony of PW-16 Sumit Singhal, he had a business of pipe manufacturing in Hyderabad. He purchased a machine from Gulab Singh, who was the proprietor of M/s Weldtech Control in Delhi. Gulab Singh went to Hyderabad for installation of machine on 04.05.2010, two days prior to the incident and remained in his factory till 06.05.2010. In cross- examination, he stated that Gulab Singh was doing business with him for last 6-7 years and had visited him in Hyderabad for 5-6 times. On 06.05.2010 Gulab Singh remained in his factory till 7:30 PM. PW-20 Ouseph Arangassery had a firm Mill Fab Engineers at Hyderabad. On 06.05.2010 at 8:30 PM, he and Gulab Singh met at a hotel for business purpose. After some time, he received a call from Delhi and the caller, who was the brother of Gulab Singh, wants to talk to Gulab Singh. Since Gulab Singh was in rest room, when he came back, this witness told him about the call after which Gulab Singh made certain calls to Delhi and told this witness that Gajraj Singh met with an accident. He stated that on 19.06.2010, Gulab Singh travelled from Delhi for a meeting with M/s Shankra Pipes Pvt Ltd. and after the meeting left for Delhi. The testimonies of these prosecution witness themselves shows that it is doubtful that Gulab Singh was also absconding and it is possible that he has been travelling for business purpose.
44. The next circumstance is the recoveries. There has been a complete dearth of incriminating recoveries from the accused except FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 34/44 from Suraj. From the accused Suraj, the investigation officer has shown to have recovered a gun with four live cartridges. It was immediately after his arrest on 14.07.2010. It was seized by the investigating officer vide seizure memo Ex.PW24/B and sealed with the seal of MK. During investigation, the investigating officer on 07.05.2010 seized certain exhibits from the doctor, who conducted the postmortem of the deceased. One of them was a bullet lead found in the body of the deceased. It was seized through seizure memo Ex.PW20/A. On the same day, the investigating officer seized the bullet lead from the car in which Gajraj Sharma was murdered. It was seized vide seizure memo Ex.PW21/B. Now the prosecution is relying upon the FSL report to show that the gun recovered from the accused Suraj was used in the murder of Gajraj Sharma. The reason is that as per FSL report, the bullet found in the body of the deceased Gajraj Sharma has been opined to be fired from the gun recovered from Suraj. According to FSL result PW45/B, the individual characteristics of striation marks present on evidence bullet marked exhibit 'EB1' and on test fired recovered bullets marked as 'TBA1' to 'TBA3' were compared and examined under Comparison Microscope Model Leica DMC and were found identical. Hence, exhibit 'EB1' has been discharged through the improvised pistol 7.65mm bore marked exhibit 'F1' in case FIR No. 92/10, PS: Nihal Vihar (FSL-2010/F-3397). EB-1 was the bullet recovered from the body of the deceased. And F1 was the gun found with accused Sunil. Regarding the bullet recovered from the car, FSL has not given any final opinion. According to the report the individual characteristics of striation marks present on evidence bullet marked exhibit 'EB2' are insufficient for comparison and opinion whether it FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 35/44 has been discharged through the improvised pistol 7.65mm bore already marked exhibit 'F1'.
45. Now this fourth circumstance again is very weak and shaky. The first factual reason is that there has been some diversion in the reports of Forensic Science Laboratory. According to the witness PW-40 Dr. Dhruv Sharma, Assistant Director, Biology, FSL Rohini, on 17.06.2010, 11 sealed parcels were received in Rohini and were marked to him by biological examination. Two important exhibits were the deformed bullets Ex.2 in parcel-2 recovered from the body of the deceased and parcel-10 found in the car. According to the testimony of this witness, he prepared this report on 16.11.2010. It means that these articles were in biological division and were sealed with the seal of MK, which is of the investigating officer till 16.11.2010, when he examined them. Then PW-41 N.P. Waghmare Assistant Director Ballistic, FSL Rohini says that on 02.08.2010, he received a sealed parcel which had a pistol recovered from Suraj and four cartridges given by investigating officer. His report is Ex.PW41/A and according to his opinion these cartridges were ammunition as defined in Indian Arms Act 1959 and the pistol was in normal working order. He sealed with the seal of FSL NPWDELHI. His report is of 13.09.2010. Finally, the reports were given by Dr. V.R. Anand which are Ex.PW45/A and Ex.PW45/B. Ex.PW45/B is the report according to which the bullet recovered from the body and the one test fired from the pistol had similar characteristics of striation marks meaning thereby in general sense it can be said that according to expert opinion this bullet was fired from this gun.
FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 36/4446. Now, according to the evidence of Dr. Dhruv Sharma of Biological Division, he opined about this bullet sealed with the seal of MK on 16.11.2010. PW-45 who has examined this bullet has stated in his evidence that on 26.10.2010 he received the parcel in FSL. It is interesting that this parcel was before him with the biological division and as per the testimony of PW-40 Dr. Dhruv Sharma. He prepared his report on 16.11.2010. Therefore, it has created a confusion that if the bullet was with the biological division till 16.11.2010 how the Ballistic Division gave its opinion on 26.10.2010.
47. Otherwise also this solitary circumstance of matching of one bullet recovered from the body with the gun recovered from one of the accused cannot be said to complete the chain of circumstantial evidence. Mere recovery of a gun from which the bullet is said to have matched with the bullet from the body of the deceased is held to be insufficient incriminating circumstance in the absence of corroborative evidences.
48. In support of the aforesaid proposition the following observation by Supreme Court of India in Abdul Wahab Abdul Majid Baloch vs State (2009) 11 SCC 625, is quoted for reference-"24. Be that as it may, we feel that only because the recovery of a weapon was made and the Expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under section 302 could be recorded. There was no direct evidence. Accused, as noticed hereinbefore, was charged not only under section 302 read with section 34 of the Indian Penal Code but also under section 302 read with section 120-B thereof. The murder of the deceased was said to have FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 37/44 been committed by all the accused persons upon hatching a conspiracy. This charge has not been proved. The learned trial judge itself opined that the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under section 302 of the Indian Penal Code."
49. This judgment was followed by Hon'ble High Court of Delhi in Samir @ Mustakim vs State 2018 SCC online DEL 8357. In that case which was also based on circumstantial evidence, one fired bullet was recovered from the front side seat, and matched the weapon of offence claimed to have been recovered from the accused. The recovered weapon was connected with the crime on account of the fact that one bullet got recovered from the skull of the deceased and it was established that the same was fired from the recovered weapon. The Hon'ble Court held that- "23. The recovery of the weapon of offence - even if accepted to have been made from the appellant, it does not follow that it is he, who used the same to commit the culpable homicide, much less the murder of the deceased. There are innumerable other hypothesis, which could explain the recovery of the pistol in question from the appellant, and which would not point conclusively to his guilt in the commission of the murder of the deceased. The deceased could have been shot in the Santro car, using the recovered pistol by the co-accused Sunder, or by any other person; he could have shot himself in the said car with the recovered weapon FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 38/44 and the appellant may have found the pistol in the Santro car while riding in it with the co-accused Sunder after taking a lift from him, or with someone else, and he could have kept the same; some one - who may have either committed the offence, or found the pistol after the same had been used to cause the death of the deceased, may have given the pistol to the appellant either as a gift, or for consideration. Any number of other possibilities could realistically be visualised. Pertinently, neither of the accused is shown to have been acquainted with the deceased, or even with one another. Neither of them has been shown to have any motive to commit the murder of the deceased either individually, or collectively. The accused has the right to remain silent, and it is for the prosecution to establish the guilt of the accused beyond all reasonable doubt. The weakness in the defence of the accused cannot lead to the inference of his guilt. 24. In Musheer Khan (supra), the Supreme Court noticed Nibaran Chandra Roy vs King Emperor - (11 CWN 1085), where it was held that the fact that the accused person was found with a gun in his hand immediately after the gun was fired, and a man was killed on the spot from the said fire, may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. The position is the same in the facts of the present case. In fact, the weapon of offence (assuming that the death of the deceased was indeed an "offence", committed by another human being), was recovered at least 17 days after its use. Even if the forensic evidence is to be accepted, which establishes the use of the fire arm recovered from the appellant for causing the death of the victim, it cannot be said that the said circumstance, coupled with the FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 39/44 circumstance that the Santro car - in which the shots were fired from the pistol on the deceased was being driven by the co-accused Sunder and the appellant was also occupying the said car, leads to the only conclusion of guilt of the appellant, or that the facts established are consistent only with the guilt of the appellant. It cannot be said that the established facts taken note of herein above, exclude every other hypothesis, except that of guilt of the accused. It cannot be said that the chain of evidence is complete in the present case, since there is no evidence to establish that the deceased was ever seen, much less last seen with the accused; in the car in question, and; that the accused had any motive to commit the offence. It is not even established that either of the accused was even known to the deceased. The decision in Abdulwahab (supra) is also squarely attracted in the facts of the present case".
50. Further on the issue of law it is clear that the evidence of the experts is generally for corroborative purposes only. They do not prove facts but give their opinions. In M Durga Prasad, Special Assistant, Syndicate Bank v State of AP, 2004 Cr LJ 242, Hon'ble Andhra Pradesh High Court observed that the opinion of an expert in writing is the weakest and the least reliable evidence and that it is not at all safe to base conviction upon the opinion of writing expert alone. Courts have refused to act upon the evidence of expert unless it is corroborated by independent evidence. In a catena of decisions, it was ruled by the Apex Court that it would be highly unsafe to convict a person on the sole testimony of an expert. Therefore, conviction cannot be based solely placing reliance on such opinion.
FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 40/4451. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for resting the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if ineligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (Ramesh Chandra Agrawal v Regency Hospital Ltd, AIR 2010 SC 806 (810).
52. The last circumstance is the confessional statements and pointing out memos. It goes without saying that these confessional statements did not lead to any discovery to make them admissible under section 27 of the Indian Evidence Act. All these confessional statements are hit by section 25 of the Indian Evidence Act and are inadmissible in evidence. The pointing out memos are also inadmissible in evidence because they are in the form of confessional statements and the places mentioned in the pointing out memos were already in the knowledge of the police.
53. The accused are charged for offence under section 302 read with section 120 B of IPC and with 120B IPC. Additionally, the accused Sunil is charged with offence under section 25/27 of the Arms Act. As far as the charge under section 120B of IPC is concerned, it is sought to be proved by telephonic conversations among the accused, the details of which are mentioned in the chargesheet and are stated above. Apart from that the investigation officer while filing the supplementary FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 41/44 chargesheet against the accused Gulab Singh has mentioned also that the three accused Vidya Sagar, KK Maheshwari and Gulab Singh were in continuous contact with each other. According to document Ex.PW39/P, which is a hand written note of the investigating officer, the accused Vidya Sagar and KK Maheshwari talked ten times before the offence and five times after the offence. The accused Vidya Sagar and Gulab Singh did not talk with each other. Gulab Singh and Vidya Sagar did not talk before the offence but talked six time after the offence, accused KK Maheshwari and Vidya Sagar talked one time before and five times after the offence, accused KK Maheshwari and Gulab Singh talked six time before and three times after the incident, the accused Gulab Singh and KK Maheshwari talked five times before and four times after the offence and accused Vidya Sagar and KK Maheshwari ten times before and four times after the offence. But as discussed above, these mere conversations are not sufficient to prove the alleged conspiracy between the accused. All these three were known to each other. Two were related as brothers and two were in same business. Therefore, talks like these may only be said to be suspicious but nothing more than that. This continuous talking is not a strong evidence conspiracy between them.
54. Therefore, the alleged conspiracy to kill Gajraj Sharma has not been proved beyond reasonable doubts in this case. Nor it has been proved that the accused Sunil caused the murder of Gajraj Sharma as alleged. The evidence adduced in the case is not consistent with the hypothesis of the guilt of the accused. After having considered all the comprehensive aspects of the matter, there can be no doubt that the circumstances raise a suspicion against the accused but suspicion FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 42/44 however grave it may be, cannot take the place of proof. The case was based on circumstantial evidence and the standard necessary for recording a conviction on the basis of circumstantial evidence could not be achieved in this case by the prosecution. Therefore, the accused cannot be convicted for the offence of conspiracy to commit murder as charged. And for the same reasons since the charge of murder is also not proved, the accused cannot be convicted for the offence of murder as charged.
55. The accused Sunil was additionally charged under section 25 and 27 of Arms Act as he was arrested while coming to Delhi near Tikri Border and from him an illicit gun and four live cartridges were recovered. The recovery has been proved by the investigating officer. The seizure memo is Ex.PW/24/A which is proved by witness Vijender Singh, constable Sandeep and the investigating officer. The motorcycle on which they were coming was also seized by the investigating officer through memo Ex.PW24/C. In cross examination, the investigating officer has stated that the gun recovered from Sunil, was deposited in police malkhana on 14.07.2010 and it was not produced before the Magistrate concerned. The gun was not produced before concerned Magistrate or any senior officer of the department. It was the argument of the defence counsel that this a violation of section 52 of the Code of Criminal Procedure and therefore the recovery of gun and cartridges should be spurned down as improbable otherwise there was no reason for the investigation officer to breach this provision. Secondly it has been argued that no independent public witness was joined by the investigation officer before search. As far as the second argument is concerned, it is not legally required for the investigation officer to join FIR No. 92/2010 State vs Vidya Sagar & Others Page No. 43/44 witnesses before search, therefore, this submission does not hold water. However, the first has merits. If there has been a breach of some law, then the benefit of it must go to the accused. Therefore, in view of the aforesaid discussion, giving benefit of doubt to all the accused in this case, I acquit them from all charges. Digitally signed by SAMAR SAMAR VISHAL VISHAL Date:
2022.05.20 16:03:16 -
Pronounced in the open 0400
Court on 20.05.2022 (Samar Vishal)
Additional Sessions Judge -08
(West) Tis Hazari Courts Delhi
FIR No. 92/2010
State vs Vidya Sagar & Others Page No. 44/44