Delhi District Court
State vs Rupesh Kumar Chaudhary @ on 26 February, 2010
:1:
In the Court of Ms. Shalinder Kaur
Additional Sessions Judge-FTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 87/09 & 88/09
State versus Rupesh Kumar Chaudhary @
Roop Lal @ Narender Singh @
Habib Khan @Mahender
Kumar Maurya
S/o Padamchand Chaudhary
R/o H.No. 61, Roshan Nagar,
Savena Kheda, Sector 12,
Udaipur, Rajasthan.
Case arising out of:
FIR No. : 205/03 & 303/03
Police Station : Nabi Karim and Sriniwaspuri
Under Section : 302/201/404 IPC & 366 IPC
Judgment reserved on : 08.02.10.
Judgment pronounced on : 24.02.10.
JUDGMENT
Case History:
1. FIR 303/03 was registered in police station Sriniwaspuri on 17.07.03 against accused Rupesh Chaudhary alleging that he had abducted one lady namely Sweety with an intention to marry her. The FIR was got registered on the statement of Sh. Ashish SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :2: Dwivedi, husband of Sweety. He had already got recorded the DD entry no. 13A dated 05.07.03 regarding missing of his wife Sweety. Another FIR bearing no. 205/03 dated 07.07.03 was registered U/s 302/201 IPC in police station Nabi Karim as one unidentified dead body of a woman was found in Hotel Shiv Dev, Arakasha Road, Delhi. Accused Rupesh Chaudhary was also arrested in this FIR. Both these cases were ordered to be tried together by Learned Predecessor vide orders dated 20.07.06.
2. The prosecution case in brief is that the investigations in case FIR No. 205/03 had commenced with recording of DD no.
34A Ex.PW-8/A on 06.07.03 at 9:15 PM in police station Nabi Karim. The DD was to the effect that an information was received from Hotel Shiv Dev International that in room no. 406, 4th floor a dead body was found lying inside a suitcase. On 04.07.03, in this room at 10:15 AM, one Mahender Maurya and Smt. Kavita Maurya had come to stay in whose suitcase the said dead body was found. They were seen inside the room on 04.07.03 at 5:30 PM. SI Sanjiv Kumar alongwith Constable Rashid Khan reached Hotel Shiv Dev International and found foul smell coming from the suit case. Crime team was summoned. The lock of the suitcase was broken and a dead body of a female was found inside the suit case. A Jammuni colour shirt and yellow colour salwar was worn by the dead body. The face of the body was decomposed and was beyond recognition. On the left hand of the dead body a watch make Maxima Quartz having black dial with black plastic strap was tied, an iron band worn on the finger of right hand, one SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :3: beads thread tied on the wrist of right hand and a pair of gold colour toe rings were found worn on the feet of dead body. An orange colour rope was tied around the neck of the dead body and the mouth was gagged with cloth. The hotel Manager Sh. Santosh Kumar Chaubey identified the dead body to be that of Kavita Maurya who had stayed in the hotel with her husband Sh. Mahender Maurya. The rukka Ex.PW- 8/B was prepared on the basis of which FIR Ex.PW- 1/A was got registered. The scene of crime was got photographed and exhibits were lifted. As the identity of the dead body could not be established, a hue and cry notice was raised. After postmortem on 10.07.03, the dead body was cremated as unclaimed.
3. On the other hand, the DD No.13A recorded in police station Sriniwaspuri on 05.07.03 was to the effect that Sweety was in the house when Sh. Ashish Dwivedi had left the house in the morning on 04.07.03 to go for his duty. He returned back at 6:45 PM in the evening but his wife was not there in the house. He had brought his wife three days before from Udaipur to Delhi. His wife could not be traced despite he made efforts to trace her. On 17.07.03, Sh. Ashish Dwivedi gave a complaint in police station Sriniwaspuri Ex.PW- 2/A, stating that he was married with Sweety on 22.06.03 at Udaipur in Rajasthan. On search of his wife, he came to know that on 04.07.03 his wife was abducted by Rupesh Chaudhary, S/o Padamchand Chaudhary on the pretext of marrying her. The mobile phone of the complainant was also with his wife.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :4:
4. During investigations of this FIR, a desperate search was made for Sweety but no proof could be found. Police also made search for accused Rupesh Chaudhary who was found missing. An application seeking Non Bailable Warrants of the accused was moved before Learned Metropolitan Magistrate which was rejected. On 02.11.03 a DD No. 5A was recorded in police station Sriniwaspuri to the effect that a telephone call was received at 9:30 PM made by Promila, mother of Sweety that Rupesh Chaudhary who had abducted her daughter Sweety was arrested by the police of police station Doongarpur, Rajasthan. Investigating Officer of this case came to know that police of police station Nabi Karim had already left to arrest accused Rupesh Chaudhary. Later on accused Rupesh Chaudhary was got arrested in this case also.
5. In case FIR no. 205/03, on 01.11.03 at night, Inspector Ajay Bhargav from Doongarpur police station informed the Investigating Officer of this case about the apprehension of a suspicious person whose actual name was Rupesh Kumar and who had disclosed about commission of murder of the said case. Accordingly, the police team reached police station Doongarpur. Investigating Officer Inspector Ved Prakash interrogated Rupesh Kumar on 05.11.03 and recorded his disclosure statement. In pursuance of this disclosure statement, accused Rupesh Chaudhary got recovered the jewelery of deceased Sweety. The exhibits of the case were sent to CFSL. The Test Identification Parade of the accused as well as of the recovered jewelery of SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :5: deceased Sweety was got conducted. On conclusion of the investigations, charge sheet of both the cases were laid.
6. After the case was committed for trial to the Sessions, Charge for offences punishable U/s 366 IPC was framed in case FIR no. 303/03 and Charge for offences punishable U/s 302/201 IPC was framed in case FIR no. 205/03 against the accused to which he pleaded not guilty.
7. The Learned Predecessor ordered the evidence to be recorded in the main case bearing FIR no.205/03. Copy of the statement of some of the witnesses was also placed on the case file of case FIR no. 303/03.
8. The prosecution examined 33 witnesses in order to substantiate the charge against the accused.
Evidence:
9. PW1 HC Naresh Kumar has proved the FIR bearing no.
303/03 as Ex.PW-1/A whereas ASI Mahender Singh also examined as PW1 who has proved the FIR bearing no. 205/03 which is also Ex.PW- 1/A. He further proved the endorsement made on the rukka Ex.PW- 1/B as well as DD No. 2A & 3A recorded by him as Ex.PW- 1/C and Ex.PW- 1/D respectively.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :6:
10. PW2 Sh. Ashish Dwivedi husband of deceased Sweety could not identify the dead body as the same was in decomposed condition nor he could identify her jewelery as it was sealed. However, he proved the DD No. 13A regarding missing of his wife Sweety and complaint made by him in police station Sriniwaspuri as Ex.PW- 2/A regarding abduction of his wife by the accused.
11. PW3 ASI Beni Oraon has proved DD No. 13A recorded by him as Ex.PW- 3/A.
12. PW4 Sh. Devki Nandan father of deceased Sweety has testified that he had married his daughter with Ashish Dwivedi on 22.06.03 at Udaipur Rajasthan. After 29.06.03, his daughter came with Sh. Ashish Dwivedi to live at Delhi. On 04.07.03, he had received a telephone call from Sh. Ashish that Sweety was not in house. On receiving this information, he came to Delhi with father- in-law of Sweety and next day, they lodged a missing report of Sweety. The witness also deposed about an incident dated 19.06.03 when accused Rupesh Chaudhary had come to his house in his absence and had threatened either to take away Sweety or to kill her. He had also caused injuries to his wife and his son with a sword.
13. PW5 Sh. Santosh Kumar Chaubey is the witness to last seen evidence who has supported the case of the prosecution in examination-in-chief but in cross examination which was recorded SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :7: on a subsequent date, he has turned hostile regarding the identity of the accused.
14. PW11 Sh. Varun Mandal was working as a Manager in the same hotel and he is also a witness to the last seen. He has deposed about the incident but has not supported the prosecution case with respect to the identity of the accused. Similar is the fate of testimony of PW12 Uday Singh who was working as a Waiter in the hotel and he has also failed to identify the accused.
15. PW6 Sachit Yagnik is brother of deceased Sweety. He has narrated the incident dated 19.06.03 and deposed that accused Rupesh Chaudhary had come to their house in Udaipur. He was armed with a sword and he had caused injuries with sword to him and his mother and also threatened them. He deposed that on 04.07.03, he came to know that accused Rupesh had kidnapped his sister Sweety from her house in Delhi to marry her.
16. PW7 SI Hira Lal was Incharge of Mobile Crime Team Central District which had reached the place of occurrence on the night intervening 06.07.03 and 07.07.03 after receiving an information. The photographs Mark Ex.PW- 7/1 to Ex.PW- 7/4 of the spot were taken. The witness has proved his report Ex.PW- 7/A prepared by him.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :8:
17. PW8 SI Saneev Kumar Singh had reached the Hotel Shiv Dev International alongwith Constable Rashid Khan on receiving DD No. 34A, Ex.PW- 8/A. He had conducted the initial investigation at the place of occurrence and got the dead body taken out from the locked suit case lying in the room. The dead body was identified by Manager Santosh Kumar Chaubey to be of Kavita Maurya who had come to stay in the hotel with Mahender Maurya. He lifted the exhibits from the room and seized the same. He had also prepared the rukka Ex.PW- 8/B and had got the FIR registered. The witness has proved the site plan Ex.PW- 8/C prepared by him and had sent the dead body for postmortem.
18. PW9 Sh. Surender Dwivedi, father-in-law of deceased Sweety has deposed about the marriage between the deceased and his son Ashish Dwivedi which took place on 22.06.03 at Udaipur, Rajasthan. Further on 04.07.03, his son had informed him about missing of Sweety, his mobile phone and keys of the house were also with Sweety. The witness deposed that on 05.07.03, he came to Delhi. The matter was reported to the police on 05.07.03 and ultimately the FIR was registered on 17.07.03 at police station Sriniwaspuri. The witness testified that 3-4 days prior to the marriage of his son with Sweety, he had received a telephone call at his residence from a person who had told his name as Rupesh Chaudhary and stated that he wanted to marry Sweety and if Sweety was married to Ashish Dwivedi they will face dire consequences and its result would be harmful for them.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :9:
19. PW10 HC Vijender Singh had done investigation qua FIR No. 303/03, registered U/s 366. He had prepared the site plan Ex.PW- 10/B. He deposed that the news regarding missing of Sweety was flashed and the Missing Form Ex.PW- 10/C was filled by him. The witness also deposed that he had made endorsement Ex.PW- 2/A on the statement recorded of Ashish Dwivedi.
20. PW13 HC Suresh Chand had taken parents of deceased Sweety namely Devki Nandan Yagnik and Promila Yadav for their medical examination. He deposed that DNA and blood samples of both these persons were got preserved and the sealed samples with seal of LHMC were handed over to him which he gave to Investigating Officer and Investigating Officer seized the same vide seizure memo Ex.PW-13/A.
21. PW14 Shanti Lal has deposed that he was having jewelery shop in Udaipur at 173, Bada Bazar, Ghanta Ghar, Udaipur, under the name and style of Gandhi Jewelers. One person namely Abid had mortgaged jewelery items with him for Rs. 10,000/-. He had handed over the mortgaged jewelery items to Inspector Ved Prakash on 05.11.03 which he had seized vide memo Ex.PW- 14/A. The witness identified in the Court those gold jewelery items that is gold mangalsutra with black pearl as Ex.PW- 14/1, one pair of gold tops collectively Ex.PW- 14/2, a pair of small gold earrings Ex.PW- 14/3, 4 gold rings collectively Ex.PW- 14/4.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :10:
22. PW15 Sh. Amar Sarkar had brought the reception register of J.M. Delux Hotel where he was working as Receptionist in the year 2003. Witness deposed that at page number 13 in the register, name of Mahender Maurya and Mrs. Kavita Maurya had been mentioned. The customer had left the hotel on 04.07.03 at 9 AM. He had proved the entry in the register as Ex.PW- 15/A but he did not identify the accused.
23. PW16 Sh. Rajender Kumar has deposed that he was running a jewelery shop under the name and style of Raj Jewelers opposite State Bank of Bikaner, Mochibara Doongarpur, Rajasthan. He has not supported the case of the prosecution qua recovery for gold chain which was sold to him by the accused for Rs.4,200/-.
24. PW17 Dr. Bhim Singh had conducted the autopsy on the dead body of deceased and has proved his postmortem report as Ex.PW- 17/A.
25. PW18 Mohd. Abid has though deposed that he had mortgaged some jewelery articles with Gandhi Jewelers but turned hostile to the prosecution case qua the fact that accused Rupesh Kumar Chaudhary had given the said jewelery items to him for mortgage. The witness deposed that one Promila Devi had given him these jewelery articles as she was in need of money and he had mortgaged the jewelery with Gandhi Jewelers for Rs.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :11: 10,000/-. However, the witness correctly identified all the jewelery items mortgaged by him in the Court.
26. PW19 SI Mahesh Kumar had prepared the scaled site plan of the place of occurrence which he has proved as Ex.PW- 19/A.
27. PW20 Smt. Promila Yagnik, mother of the deceased Sweety has proved her marriage with Sh. Ashish Dwivedi. She corroborated the testimony of PW2 that on 04.07.03, her daughter went missing. She further deposed that accused Rupesh Chaudhary had made a telephone call to her on 07.07.03 informing her that he alongwith Sweety was going out of India and she should not try to find them. She kept on searching for her daughter for four months and thereafter the accused was apprehended by police at District Doongarpur, Rajasthan.
28. PW21 Constable Yograj had accompanied the Investigating Officer and other police personnels alongwith accused Rupesh Kumar to Lady Harding Hospital for medical examination of accused Rupesh Chaudhary. He deposed that the blood sample and scalp hair sample of accused were obtained by Constable Hemraj from the doctor which he had delivered to Inspector Ved Prakash. He seized the same vide memo Ex.PW- 21/A. PW23 Constable Hemraj has corroborated the testimony of PW21.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :12:
29. PW22 Constable Rajveer had accompanied the Investigating Officer Inspector Ved Prakash and other police personnels to Doongarpur Rajasthan. He deposed that on 05.11.03, Inspector Ajay Bhargav had handed over one green colour diary and interrogation report to the Investigating Officer. Accused Rupesh Chaudhary was arrested, his personal search was conducted vide memo Ex.PW- 22/A. The disclosure statement made by the accused was recorded vide memo Ex.PW- 22/B. The witness has deposed regarding the further investigations during which the jewelery of the deceased was got recovered and seized.
30. PW24 HC Rajender Singh was posted as MHC(M) on 17.07.03. He has proved the entries made in register no. 19 vide which various exhibits of the case were deposited in the Malkhana of police station. The same were also sent to CFSL, Lodhi Road. The entries of the register proved by witness are Ex.PW- 21/A to Ex.PW- 24/E.
31. PW25 Ms. Archana Sinha, Learned Metropolitan Magistrate has proved the Test Identification Parade proceedings of accused Rupesh Chaudhary. The witness has testified that the accused had refused to join Test Identification Parade proceedings and the proceedings conducted by the Learned Metropolitan Magistrate are Ex.PW- 25/B. SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :13:
32. PW26 Sh. P K Jain, Learned ADJ had conducted the Test Identification Parade proceedings of the case property which were marked to him while he was posted as Metropolitan Magistrate. He has proved the proceedings as Ex.PW- 26/B.
33. PW 27 Constable Mahesh Kumar was posted in Mobile Crime team. He has corroborated the statement of PW7 SI Heera Lal.
34. PW 28 HC Suresh Kumar had taken the special reports to various senior officers of the police as well as to the area Magistrate.
35. PW29 Constable Rashid Khan had also accompanied the Investigating Officer and police team to Hotel Shiv Dev International. He had deposed about the investigations done at the place of occurrence and of lifting of the exhibits by the Investigating Officer.
36. PW30 Retd. SI Harpal Singh had partially investigated the Case FIR No. 303/03, police station Sriniwaspuri. He deposed that on 13.09.05 he had reached police station Hiran Magri, District Udaipur, Rajasthan alongwith Constable Rohtash, Constable Anoop Singh. They had gone to the house of deceased Sweety and made inquiries there. They had also made search for accused Rupesh Chaudhary but could not succeed to trace him. The witness had seized the age proof of the deceased and her SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :14: marriage photographs. He had also formally arrested the accused on 10.12.03 after he was arrested in the FIR 205/03.
37. PW31 Inspector S.R. Meena had joined the investigations of the case since 06.07.03. He has deposed about the investigations done at the place of occurrence and thereafter regarding arrest of accused Rupesh Chaudhary in Doongarpur, Rajasthan.
38. PW32 Inspector Ajay Bhargav has deposed that he was SHO of police station Doongarpur Kotwali during the period from May 2003 to November 2004. He had reached Vaibhav Hotel in front of bus stand Doongarpur on an information received from the said hotel that one person was dialing phone number belonging to Karachi, Pakistan. SI Bhagwan Singh had brought this person to police station and the information about it was given to senior officers. SP Doongarpur and Intelligence Officials who had come to police station had interrogated Rupesh Chaudhary @ Habib Khan. During interrogation, he had disclosed about the commission of murder of Sweety. Accordingly, information was sent to SHO police station Nabi Karim. The witness has also proved the arrest of accused Rupesh Chaudhary made in this case vide arrest papers Ex.PW32/A as well as the seizure of one diary having 61 pages which was seized vide seizure memo Ex.PW32/B. In pursuance of the disclosure statement, he got recovered a gold chain, belonging to deceased Sweety from the shop of Rajender Kumar Panchal at Mochi Katra, Doongarpur, SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :15: Rajasthan which was seized vide seizure memo Ex.PW16/A. The witness had identified the pocket diary in the Court as Ex.PW32/1.
39. PW33 Inspector Ved Prakash is main Investigating Officer of the case who has proved the entire investigations conducted by him of the case.
40. The accused has denied the case of the prosecution in his statements, recorded U/s 313 Cr.P.C. He has alleged his false implication in this case and claimed to be innocent. He did not lead any evidence in his defence.
Contentions:
41. It was urged by Learned Addl. PP that the prosecution has adduced sufficient evidence to establish a complete chain of circumstances which unerringly points towards the guilt of the accused. The motive which forms the foundation to prove a case based on circumstantial evidence is very strong in this case and has been proved through the evidence of various prosecution witnesses. Moreover, the hair which were seized from the scene of crime almost three months before the arrest of the accused have matched with the hair of the accused which in all probability establishes the presence of the accused with the deceased in the hotel. The witnesses to last seen have supported the incident completely. Although two of the said witnesses have not supported the prosecution case with respect to the identity of the SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :16: accused which is immaterial as the third witness to the last seen has established the identity of the accused in his examination-in- chief. The recovery of the jewelery worn by the deceased has been made in pursuance to the disclosure statement made by the accused. The fact that the recovery witnesses have not supported the case of the prosecution regarding the accused being the person who had mortgaged or sold this jewelery is immaterial as it was the accused who had led the police team to their shops and that is how the police came to know about these shops. The said jewelery shops were not in the knowledge of the police prior to the arrest of the accused. The prosecution witnesses have also proved that at the time when the offence was committed the accused was also missing from his house. Thus, all the circumstances linked together point towards the accused as for having committed the murder of the deceased and the prosecution case has been proved beyond reasonable doubt. In support of his contentions Learned Addl. PP has relied upon the judgment State Vs. Baby Joseph Of Kerala ; 1992 Cri. LJ 2257.
42. Per contra Learned defence Counsel submitted that the circumstances put forth by the prosecution do not establish a complete chain. The chain has snapped and its various links are missing. It was argued that witnesses to the last seen have not established the identity of the accused. Recovery as alleged by the prosecution is not made at the instance of the accused thus the accused cannot be convicted merely on the basis of CFSL result according to which the hair of the accused is alleged to SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :17: have been matched with the hair which were seized from the hotel room. Moreover, matching of the hair is a very weak evidence. The Learned Counsel relied upon DNA Technology & its Application in the Administration of Justice: Problems & Prospects to stress upon his argument. The Learned Counsel also pointed out that there are major contradictions appearing in the testimony of parents and brother of the deceased which demolish the motive alleged by the prosecution. Therefore, the accused cannot be convicted on the basis of such weak circumstantial evidence adduced by the prosecution. In support of the contentions, reliance has been placed upon the judgments reported as Sattatiya @ Satish Rajana Kartalla vs. State of Maharashtra (2008) 3 Supreme Court Cases 210, Vinay D. Nagar vs. State of Rajasthan (2008) 5 Supreme Court Cases 597, Vikramjit Singh @ Vicky vs. State of Punjab (2006) 12 Supreme Court Cases 306 and DNA Technology & its Application in the Administration of Justice: Problems & Prospects (2004) 5 SCC (Jour) 6.
Findings:
43. Admittedly, in this case, there is no direct evidence against the accused. The prosecution is relying upon the circumstantial evidence in order to prove the guilt of the accused. It has been consistently laid down by the Apex Court in a number of cases that where a case rests squarely on circumstantial evidence from which the guilt of the accused is to be proved, has SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :18: to be fully established and same should be of conclusive nature being consistent only with the hypothesis of the guilt of the accused. These circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused. Moreover, the chain of evidence must be so complete that it does not leave any reasonable ground for being consistent with the innocence of the accused.
44. In the light of the above settled principle of law, let us examine the circumstances, put forth by the prosecution which are as follows :-
(i).Homicidal death and identity of the deceased.
(ii).Conduct of the accused.
(iii).Refusal of Test Identification Parade
(iv).FSL Report.
(v).Last seen evidence.
(vi).Recovery of Jewelery
(vii).Motive
(i).Homicidal death and identity of the deceased.
45. To establish the charge against the accused, first circumstance set is the identity of dead body as that of deceased Sweety. On behalf of the accused, the identify of the dead body has been challenged. It was argued that PW2, husband of the deceased and PW4, father of the deceased have not identified the SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :19: dead body. These witnesses have deposed that the dead body was badly decomposed and was in unidentifiable condition. Moreover, the dead body could not be identified as the items recovered on the dead body were not shown to PW2. DNA of the deceased could not be matched with DNA of her parents. Thus, the accused cannot be convicted for murder of Sweety as the prosecution has failed to prove that the dead body recovered from the suitcase was that of Sweety.
46. No doubt, PW2 & PW4 have not identified the dead body in the mortuary. PW4 Sh. Devki Nandan, father of the deceased has deposed that he had given the photographs of his daughter Mark A & B out of D-1 to D-5 to the police. PW2 Sh. Ashish Dwivedi, husband of the deceased has identified these photographs as his marriage photographs with deceased Sweety which were placed on the judicial file. PW9 Sh. Surender Dwivedi, father -in-law of the deceased had handed over two photographs of his son Ashish and Sweety to SI Harpal Singh which are Mark X and Mark X1 (The photographs Mark X1 are already marked as DW1 to 5).
47. PW5 Sh. Santosh Kumar Choubey, Manager of Hotel Shiv Dev International, after seeing the photograph of the deceased woman from the judicial file had identified it to be of the same woman who had come with the accused in the hotel on 04.07.03 and whose name was mentioned as Smt. Kavita Maurya by the accused. The photograph shown to him is Mark A. He also SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :20: deposed that he had seen the dead body recovered from the suitcase on 06.07.03 by the police which was totally decomposed. On seeing the dead body, he came to know that it was the same woman who had come with the accused on 04.07.03 at about 2/2.30 PM. In cross-examination, he further deposed that one man accompanied with the woman had come to their hotel and that woman's dead body was recovered from the hotel. However, subsequently he deposed that he could not recognize that it was the dead body of the woman who had come to the hotel 2-3 days ago. But the witness has not been cross-examined qua the photograph Mark A. He has not been suggested that the woman seen in the photograph Mark A did not stay in the hotel room no.406 on 04.07.03. From the evidence of PW2, PW4 & PW9, it has been established that the photographs D-1 to D-5 and Mark X were of Sweety. Photograph Mark A and the photographs D-1 to D-5 are of the same woman, thus, photograph Mark A is of Sweety. From this photograph, PW5 has established the identity of Sweety as the lady who had stayed in their hotel on 04.07.03.
48. PW12 Udai Singh, Waiter in Hotel Shiv Dev International has deposed that he had supplied the food in hotel room no.406 on 04.07.03 and at that time, the lady and the man who had come in the hotel were present in the said room. He had seen the dead body of the said lady on 07.07.03 when the police had come there and she was the same lady who was found staying in the said room on 04.07.03 when he had supplied the food in the room. The witness was declared hostile by Learned APP as he was found to SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :21: be resiling from his previous statement. PW12 admitted during cross-examination by Learned APP that he had seen the lady (since deceased) in jamni colour suit and yellow colour salwar when he had gone inside the said room on 04.07.03 for supplying the food and the dead body of the said lady was found in a big suitcase which was also wearing the same jamni colour suit and yellow colour salwar. The testimony of this witness is unchallenged.
49. PW20 Promila Yagnik, mother of the deceased has deposed that on 09.01.04, she had identified the jewelery articles of her daughter before the Learned Metropolitan Magistrate, Delhi. PW26 Sh. P.K. Jain, Learned Additional District Judge, Delhi has proved the Test Identification Parade of the case property vide proceedings Ex.PW26/B. According to these proceedings, the witness Promila Yagnik W/o Devki Nandan Yagnik had correctly identified the entire case property i.e one gold mangalsutra, four gold rings, two gold earrings and two gold tops, one watch make Maxima with black strap, one gold chain, two bichuas and one black colour ring fitted with white colour stone. The witness has mentioned in the proceedings that all the articles which were produced for mixing were similar in design and size to as that of the case property except for bichuas. The bichuas brought by the Investigating Officer were of white metal while the case property was golden in colour. Moreover, the four rings brought by the Investigating Officer were not fitted with any kind of stone SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :22: whereas out of the four gold rings, three gold rings were fitted with stones and one ring was not fitted with any stone.
50. PW20 has again identified a gold mangalsutra with black pearl as Ex.PW14/1, one pair of gold earrings as Ex.PW14/2 (collectively), one pair of small gold earrings as Ex.PW14/3 (collectively), gold rings as Ex.PW14/4 (collectively) and gold chain as Ex.P-20/1 in the Court. She deposed that on 09.01.04, she came to Delhi. She had identified these articles before the Learned Metropolitan Magistrate and these articles were of her daughter Sweety. The witness has not been cross-examined regarding the identification of the said case property nor she has been given any suggestion that the gold jewelery was not of her daughter Sweety. In the cross-examination, the witness has deposed that the aforesaid jewelery as identified by her in the Court was purchased by them six months prior to the marriage of her daughter Sweety.
51. PW5 Santosh Kumar Chaubey has deposed that one wrist watch make Maxima Quartz which was tied on the left hand of the deceased was taken into possession by the police and it was sealed with the seal of 'SKS'. The witness has identified the watch as Ex.P-2. No suggestion was given to the witness regarding this recovery. PW8, PW29 & PW31 have corroborated his testimony regarding this fact. PW20 has identified Ex.P-2 in Test Identification Parade before PW26 who has deposed about this fact and PW20 has also testified that on 09.01.04, she had SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :23: identified the jewelery articles of her daughter. Thus, even though PW2 was not shown the articles worn on the dead body is immaterial as the identity of the jewelery of Sweety as well as the wrist watch Ex.P-2 has been proved through the testimony of above mentioned prosecution witnesses. PW5 has identified the deceased from her photograph Mark A and PW12 has established that dead body recovered from the suitcase was of the same woman who had come to stay in the hotel on 04.07.03.
52. It is also relevant to mention here that the Investigation Agency had made an effort to get DNA Test of the parents of deceased Sweety matched with DNA of the dead body. However, according to CFSL Report Ex.PW33/L, the DNA profile could not be generated from the viscera samples as it was not found suitable material for DNA Test. But in view of the evidence produced by the prosecution and as discussed above, the prosecution has been able to establish the identity of the dead body as of Sweety and it is immaterial that DNA profile could not be generated.
53. PW17 Dr. Bhim Singh has proved the postmortem report Ex.PW17/A as per which the external injuries found on the dead body were : Complete ligature mark, hard parchment like around the neck, in front at the thyroid on left side 9 cm from left ear lobule, on right side 8.5 cm from the right ear lobule, horizontally placed, total length of the ligature mark is 33 cm and width varies from 3.5 cm to 4 cm. PW17 has opined that the death was caused SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :24: due to asphyxia consequent upon ante mortem ligature strangulation. This proves that deceased Sweety had met with homicidal death.
(ii) Conduct of the accused.
54. As per the prosecution case, FIR U/s 366 was registered by name against the accused on 17.07.03. PW30 Retd. SI Harpal Singh has deposed that on 12.09.03, he along with Constable Rohtas had gone out of station in search of accused Rupesh Kumar. On 13th September, they had reached police station Hiran Magri, Rajasthan. Thereafter he along with Constable Rohtas and Sachit Yagnik, brother of the deceased started search of accused Rupesh Chaudhary but it was in vain. Thus, from the testimony of the said witness, it emerges that the accused could not traced in Udaipur where he had resided when the police had gone in his search.
55. From the testimony of PW32 Inspector Ajay Bhargav, it is evident that accused Rupesh Chaudhary @ Habib Khan was residing in Vaibhav Hotel in front of bus stand Doongarpur, Rajasthan. The accused was brought to police station Doongarpur on 30.10.03 on an information received from the hotel by SI Bhagwan Lal and he was interrogated. During the course of the interrogation, the accused revealed about having committed murder of deceased Sweety in the hotel in Delhi. It was vehemently argued on behalf of the accused that the prosecution SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :25: has not recorded the statement of the alleged Manager of Hotel Vaibhav, STD Operator in the hotel and SI Bhagwan Lal to prove that the accused was staying in Vaibhav Hotel. Moreover, it is also astonishing that the police had been calling the accused for interrogation from 01.11.03 to 05.11.03 in police station Doongarpur and he had been willingly going there police station and did not make an effort to abscond which throws a doubt on the prosecution version.
56. It emerges from the evidence of PW32 that the accused was apprehended on 30.10.03 from Vaibhav Hotel under suspicious circumstances and was arrested in police station Doongarpur on 05.11.03. The fact that the statements of Manager of Vaibhav Hotel, STD Operator or SI Bhagwan Lal were not recorded is immaterial as the same does not disprove the arrest of the accused in police station of Doongarpur, Rajasthan.
57. From the testimony of PW31, PW32 & PW33, it has come forth, on 02.11.03, after receiving the information from Kotwali Doongarpur, Rajasthan about the apprehension of accused Rupesh Chaudhary from Vaibhav Hotel, PW33 along with team comprising of himself, SI S.R. Meena, Constable Narender, Constable Rajveer left and reached Kotwali Doongarpur in the evening of 04.11.03. The accused after interrogation was arrested in police station Doongarpur on 05.11.03. The articles belonging to accused were seized vide seizure memo Ex.PW31/A and his diary was seized vide seizure SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :26: memo Ex.PW32/B. On the identification of accused, one gold chain belonging to deceased from a jewelery shop in Mochi Katra Bazar, Doongarpur, Rajasthan was recovered. The accused was produced before the CJM, Doongarpur and his transit remand was taken. Thereafter the accused led the police at Kanjipeer, Rajasthan and pointed towards house no.34 of his friend Mohd. Abid who had got recovered the mortgaged jewelery from Gandhi Jewelers in Udaipur. The accused has failed to give any explanation for his presence in Doongarpur while he resided in Udaipur that whether he had gone there got some personal or business matter. In the statement recorded U/s 313 Cr.P.C, the accused has merely denied these facts and has not provided any information for his absence from his house and his presence in Doongarpur area. He also evaded his arrest after registration of FIR U/s 366 IPC in police station Sriniwas Puri, Delhi. Thus, the said conduct of the accused is very material to establish his guilt.
(iii) Refusal of Test Identification Parade
58. PW25 Ms. Archana Sinha, the then Learned Metropolitan Magistrate had conducted the Test Identification Parade proceedings of accused Rupesh Chaudhary on the application Ex.PW25/A, moved by Inspector Ved Prakash. The witness has testified that the accused refused to participate in Test Identification Parade proceedings despite caution was given to him that an adverse inference may be taken for his identification during trial, if he refused to join Test Identification Parade SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :27: proceedings. The Test Identification Parade proceedings have been proved by the witness as Ex.PW25/B. The testimony of the witness is unchallenged.
59. In the statement recorded of the accused in Test Identification Parade proceedings, he had refused to participate in Test Identification Parade and stated that his photographs were taken in police station by the concerned Inspector and the witnesses had seen him on the way while coming and going to the Court. From this statement, it cannot be gathered that which witnesses had seen the accused while he was being produced in the Court and how the accused came to know that particular person was the witness in this case. Moreover, it has not been put to the Investigating Officer during his cross-examination that whether he had taken the photographs of the accused before producing him for Test Identification Parade. Even in the statement recorded U/s 313 Cr.P.C, the accused has merely stated that he had refused to participate in Test Identification Parade due to certain reasons, as explained by him during the proceedings. Thus, the accused has not been able to assign any cogent reason for not joining Test Identification Parade which shows that accused had deliberately avoided his identity being established during these proceedings.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :28:
(iv) CFSL Report
60. On behalf of the accused, it was argued that the CFSL Report regarding the matching of hair, seized from the hotel room no.406 with the sample hair of the accused cannot be relied upon as the same is not a conclusive test. It is a weak evidence on which the conviction of the accused cannot be based. On the other hand, Learned APP submitted that in this case, the CFSL result is a strong evidence to connect the accused with the commission of offence as his hair have matched with the hair seized from the hotel room three months before the arrest of the accused. It was submitted that investigations in this case had progressed with the arrest of the accused and nothing was in the knowledge of the police prior to the arrest of the accused.
61. PW5 Santosh Kumar Chaubey, Manager of Hotel Shiv Dev International has deposed that some hair which were found on the bed sheet of the bed were taken into possession by the police and were sealed with the seal of 'SKS'. The witness has not been cross-examined on this fact. PW7 SI Hira Lal and PW8 SI Sanjeev Kumar Singh have also corroborated this fact. All these witnesses have identified the said hair as Ex.P-5 in the Court. As per the report of Crime Team Ex.PW7/A, some hair lying on the double bed of the room were gathered and handed over to the Investigating Officer. In the report, the time spent by the Crime Team was from 10.30 PM on 06.07.03 to 1.30 AM on 07.07.03. The hair were seized vide seizure memo Ex.PW7/E on 07.07.03.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :29:
62. PW5, PW7, PW8, PW31 & PW33 are the witnesses to recovery of the hair Ex.P-5 from the bed in room no.406 of Hotel Shiv Dev International. The testimony of PW7 is unrebutted to the seizure of hair. PW21 & PW23 have testified that on 14.11.03, they had taken the accused Rupesh Chaudhary to Lady Harding Hospital where the accused was got medically examined. The doctor had taken his blood sample and scalp hair which was sealed in a pulanda with the seal of 'CMO'. They had handed over the pulanda to Inspector Ved Prakash who seized the same vide seizure memo Ex.PW21/A. The testimony of these two witnesses is also unchallenged.
63. As per CFSL Report Ex.PW33/H, the scalp hair of the accused was received in parcel no.9 bearing seals of 'CMO SKKH & LHMC', New Delhi containing exhibit-9. Thus, it is apparent that the seal of CMO, LHMC had remained intact when the hair sample was deposited in CFSL, Lodhi Road. The hair Ex.P-5, recovered from the room of the hotel bearing seal of 'SKS' was received in parcel no.3 bearing exhibit-3 and the seal was also intact. As per the evidence of recovery witnesses, the hair Ex.P-5 was seized at spot and were sealed in a pulanda bearing the seal of 'SKS'.
64. The report Ex.PW33/H is admissible U/s 293 Cr.P.C. according to which the " hairs" in exhibit-3 were found to be human scalp hair in most of their morphological and microscopical characteristics. The scalp hair of the accused, exhibit-9, were also SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :30: found to be human in origin and similar with hairs in exhibit-3 in most of the morphological and microscopical characteristics" . Thus, from this report, it emerges that the intact sealed parcels were received in CFSL, Lodhi Road, Delhi and after examination, the hair of the accused were found to be similar with the hair which were recovered from the hotel room no.406 of Hotel Shiv Dev International on 06.07.03. The accused has not explained the said fact in his statement recorded U/s 313 Cr.P.C nor he has raised the plea that the samples were tempered with.
(v) Last seen evidence
65. Learned Defence Counsel contended that prosecution has relied upon the testimony of PW5 Santosh Kumar Chaubey, PW11 Varun Mandal and PW12 Uday Singh, staff of Hotel Shiv Dev International and PW15 Amar Sarkar, Receptionist of J.M. Delux Hotel to establish that accused and deceased had come and resided in Hotel Shiv Dev International on 04.07.03 and accused had resided in J.M. Delux Hotel from 01.04.03 to 04.07.03 under fictitious name of Mahender Maurya and Kavita Maurya. All the witnesses have turned hostile qua the identity of the accused. Even though PW5 has supported the case of prosecution regarding the identity of accused but he has also not supported the case of prosecution on the identity of accused during his cross-examination. Thus, the prosecution has not been able to prove the last seen evidence to establish the identity of accused seen with deceased in Hotel Shiv Dev International. To SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :31: support this contention, reliance has been placed upon the judgment reported as Vikramjit Singh @ Vicky vs. State of Punjab (2006) 12 Supreme Court Cases 306.
66. It was further argued that the report of the handwriting expert also establishes that the accused did not stay in the Hotel Shiv Dev International as his handwriting has not matched with the handwriting in the hotel register. The mobile phone of the deceased, key of the hotel room and the purse of the deceased have not been recovered from the accused. Moreover, PW4 has admitted in his testimony that allegations made against the accused are based on suspicion. Therefore, the evidence adduced by the prosecution is not clinching.
67. There can be no dispute that PW11, PW12 and PW15 did not subscribe to the prosecution version regarding the identity of the accused. PW5 did not support the prosecution story qua his identity in his cross-examination. But is this sufficient to disbelieve the case of the prosecution ? The law is well settled that merely because a witness is declared as hostile witness, whole of his evidence is not liable to be thrown away.
68. PW5 has deposed that he was employed as Manager in Hotel Shiv Dev International and was present on the counter of the hotel. Varun Mandal another Manager was also present there. At about 10/10.30 AM, accused came in the hotel at the counter and told his name as Mahender Maurya. He wrote his name and SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :32: residential address in the register himself and told that his wife Kavita Maurya was yet to come. He gave Rs.500/- for reservation of the room and room no.404 was allotted to him. After making the entry in the register and leaving his suitcase in room no.404, accused had left the hotel and had come in the hotel with a suitcase of blue colour. At about 2/2.30 PM, he again came in the hotel with his wife Kavita Maurya. He then requested PW5 to change the room no.404 and he asked for AC room. He was then allotted room no.406. On the same day, the accused gave order for his meal at about 7/7.30 PM which was served to the accused in room no.406 by Waiter Uday Singh. Thereafter there was no contact with the accused or his wife in room no.406 for whole night and on 05.07.03 nor the accused and his wife were seen coming and going out of the room till the night of 06.07.03.
69. The witness further deposed that on 06.07.03, he checked the room in the evening at about 7.30 PM. The door was locked and the keys were with the accused. He opened the lock of the room with a duplicate key. In the room, one blue colour suitcase of big size was lying there and foul smell was coming out from the suitcase. He informed the police on telephone in police station Nabi Karim. SI S.R. Meena and other police officials came to the spot and checked the room. The suitcase was opened and a dead body of a woman was recovered from it. He saw the dead body at that time which was totally decomposed. A plastic rope was found wrapped around the neck of the dead body and the mouth was gagged with cloth. On seeing the dead body, he came SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :33: to know that it was the dead body of the same woman who came with the accused on 04.07.03 at 2.30 PM. The witness has further proved the recoveries made from the room and their seizures. PW5 has also deposed that the accused had signed in column no.12 of the hotel register Ex.P-4. The entries were made by Sh. Varun, the Receptionist.
70. PW11 & PW12 have both corroborated the testimony of PW5 entirely. PW11 has also deposed that the said man came in the hotel at 10.15 AM. However, both these witnesses have not supported the case of the prosecution qua the identity of the accused. PW11 in addition has testified that he could not identify the dead body as he had not seen the wife of Mahender Maurya when she came with him in the hotel at 2 PM since he was not present at the counter as he had gone for lunch.
71. PW5 in cross-examination has not supported the case of the prosecution case qua the identity of the accused. He deposed that he did not remember when he had seen the accused and that girl together in the hotel for the last time of their entry or that the person who had accompanied her is present in the Court. He had seen the accused for the first time with SI Meena and he identified him as accused only after having been told by SI that he is the one who had stayed in their hotel. He also admitted that he had not seen the male customer after leaving the hotel on the date of the incident till his deposition.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :34:
72. In the judgment reported as Khujji @ Surendra Tiwari AIR 1991 SC 1853, it was observed :-
The examination-in-chief of this witness was recorded on November 16, 1976 when he identified all the assailants by name. He stated that he knew the six accused persons in Court and they were the persons who had surrounded the rickshaw and launched an assault on PW4 and the deceased Gulab. His cross-examination commenced on December 15, 1976. in his cross-examination, he stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the remaining four persons. He stated that he had inferred that the other two persons were the appellant and Gudda.
It was held : The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in- chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross- examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief.
Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :35: no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrence is not unnatural nor is his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in his evidence to doubt his testimony.
73. Same is the fate of testimony of PW5 in this case. But from his testimony, it is apparent that PW5 had sufficient time and opportunity to see the accused and register his physical appearance in his mind. Moreover, as per CFSL Report Ex.PW33/H, the hair Ex.P-5 found in room no.406 of Hotel Shiv Dev International on 06.07.03 have matched with hair of accused which establish the presence of the accused in the hotel room and corroborates the testimony of PW5 regarding identity of the accused.
74. In the judgment reported as State Vs. Baby Joseph Of Kerala ; 1992 Cri. LJ 2257, the Hon'ble Kerala High Court held :-
Though the report itself is evident, the prosecution also examined PW16 giving opportunity to the accused to cross- examine him. His evidence appeared to us impressive. We are of the view that report of expert on analysis of hair is an acceptable form of evidence. In this case, the four hair found on the fingers clinches the issue.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :36:
75. The Hon'ble Kerala High Court had relied upon the decision of Hon'ble Supreme Court in the case of Kanbi Karsan Jadav vs. State of Gujrat AIR 1996 SC 821 wherein it is observed :-
The Supreme Court had occasion to consider the evidenciary value of examination of hair in Kanbi Karsain Jadav vs. State of Gujrat (supra). Dealing with the question, the Supreme Court observed as follows :-
" It was argued that the finding of the hair was of no consequence and at least the Chemical Examiner was not the proper expert who could depose as to the similarity or otherwise of the hair. The writers on medical jurisprudence, however, have stated that for the microscopic examination of the hair, it is possible to say whether they are of the same or of different colours or sizes and from the examination, it may help in deciding where the hair come from. In Taylor's Medical Jurisprudence, some cases are given showing that hairs were identified as belonging to particular persons."
The Supreme Court acted upon the evidence furnished by the prosecution based on the presence of hair.
76. As per report Ex.PW33/H, the opinion regarding the seized hair exhibit-5 with the hair of accused to be similar is SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :37: based on morphological and microscopical characteristics. Thus, the same is sufficiently reliable and the accused has not challenged its reliability either in his statement recorded U/s 313 Cr.P.C. or in his defence. The judgment reported as Vikramjit Singh @ Vicky vs. State of Punjab (supra) relied upon on behalf of accused is distinguishable from the facts of the present case as in that case, in cross-examination, the witness had totally turned hostile to the case of the prosecution. The Hon'ble Supreme Court has held :-
Furthermore, as noticed hereinbefore, the prosecution witnesses have turned hostile. It may be an act of dishonesty on their part as contended by Ms. Kochar but by reason thereof only we cannot hold the appellant guilty of commission of a heinous offence. In view of their statements in the cross- examination giving a complete go-by to what had been stated in the examination- in-chief, it is not possible to rely even upon a part of their statement.
77. However, in the present case, PW5, PW11 & PW12 have supported the complete incident of the accused and deceased coming in the hotel, getting the room changed, colour of the suitcase brought by the accused but they had turned hostile regarding the identity of the accused. Nonetheless the presence of the accused stands established through the scientific evidence i.e the report Ex.PW33/H which further corroborates the testimony of PW5 qua identity of the accused.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :38:
78. PW15 Amar Sarkar was working as a Receptionist in J.M. Delux Hotel. The witness has deposed that Mahender Maurya and Kavita Maurya as per entry in column no.14 of the reception register had left the hotel on 04.07.03 at 9 AM. The register entry has been proved as Ex.PW15/A. However, the said witness also turned hostile to the case of the prosecution regarding the identity of the accused. He deposed that he cannot identify the person namely Mahender Maurya. He also deposed that he did not remember that he had identified the accused who had come to his hotel on 01.07.03 by the name of Mahender Maurya or stayed in room no.102. He could not remember whether the police had shown him the photograph of one lady which he had identified as the same who had come to visit the accused in his room on 02.07.03.
79. Thus, from the testimony of this witness, it is evident that a person by the name of Mahender Maurya had stayed in J.M. Delux Hotel from 01.07.03 to 04.07.03 and had left the hotel at 9 AM on 04.07.03. From the other evidence on record, it has emerged that thereafter accused went to Hotel Shiv Dev International around 10.15 AM and got a room booked again in the name of Mahender Maurya and Kavita Maurya. PW31 SI S.R. Meena and PW33 Inspector Ved Prakash have deposed that after the arrest of the accused, they had tried to trace out the Mahender Maurya at the address in Ajmer as mentioned in records of Hotel Shiv Dev International but the same could not be traced. Thus, it becomes evident that the accused had given a SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :39: fake name as well as a fake address in hotel records and no actual person by the name of Mahender Maurya lived at the address, furnished by him in Hotel Shiv Dev International & J.M. Delux Hotel.
80. Moreover, PW31 has also deposed that from Hotel Shiv Dev International, accused Rupesh Chaudhary had led them to J.M. Delux Hotel at Aaraksha Road, Nabi Karim and told that between 01.07.03 to 04.07.03, he had stayed in this hotel and the accused was identified by PW15 Amar Sarkar who stated that the accused had stayed in his hotel for the aforesaid period. PW33 has also corroborated this part of the testimony of PW31 that PW15 had identified the accused for having stayed in J.M. Delux Hotel. The fact that the accused had also stayed in Delhi in J.M. Delux Hotel was not in the knowledge of the police prior to the arrest of the accused. It was the accused who had led the police in the said hotel and PW15 had confirmed that a person namely Mahender Maurya had stayed in his hotel. It is then that police came to know that accused was in Delhi from 01.07.03 to 04.07.03 and had stayed in J.M. Delux Hotel.
81. Even if PW15 has not supported the case of the prosecution to prove identity of the accused, still from the register entry Ex.PW15/A of J.M. Delux Hotel and register entry Ex.P-4 of Hotel Shiv Dev International, it emerges that same person had stayed in both the hotels. In Ex.PW15/A, the name and address of person is mentioned as Mahender Maurya S/o Suraj Mal Maurya SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :40: and Kavita Maurya, R/o H-54, Behind Mira Niketan Subhash Nagar, Ajmer and in Ex.P-4, it is mentioned as Mahender Maurya S/o S.M. Maurya and Kavita Maurya R/o 154, Behind Neera Niketan, Subhash Nagar, Ajmer. Both these entries are in continuation. Accused has not led any evidence to show that he was not present in Delhi from 01.07.03 to 04.07.03. Even though the hotel entries in the registers have not been proved to be in the handwriting of the accused is not fatal to the prosecution case. Accordingly, from the evidence adduced by prosecution, it is sufficiently proved that accused Rupesh Chaudhary had stayed in both the hotels under fictitious name of Mahender Maurya.
(vi)Recovery of Jewelery
82. It was vociferously argued on behalf of the accused that prosecution case regarding the recovery of jewelery of the deceased at the instance of accused has not been proved. PW14 Shanti Lal, the jeweler has turned hostile to the case of the prosecution and PW18 Mohd. Abid has deposed that the jewelery of the deceased was handed over to him by mother of the deceased. Thus, the chain of circumstances put forth by prosecution has completely broken. In support of these contentions the judgment reported as Sattatiya @ Satish Rajana Kartalla vs. State of Maharashtra (2008) 3 Supreme Court Cases 210 is relied.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :41:
83. PW16 Rajender Kumar has not supported the case of the prosecution regarding recovery of gold chain Ex.PW20/1 at the instance of accused from his shop or that accused had sold the gold chain to him for Rs.4200/-. He deposed that he could not identify the gold chain. But from his testimony, it emerges that three police officers had gone to his shop and he was the owner of jewelery shop " Raj Jewelers" . PW16 deposed that he had weighed the gold chain and told its value to be Rs.4200/-. From the testimony of PW31, PW32 & PW33 and seizure memo Ex.PW16/A, it emerges, these three police officials had gone to the shop of PW16 who had told them accused had sold the gold chain to PW16 for Rs.4200/-.
84. PW14 has deposed that he had been running a jewelery shop in Udaipur at 173, Bada Bazar, Ghanta Ghar, Udaipur, under the name and style of Gandhi Jewelers. On 08.08.03, one person namely Abid came to his shop and he mortgaged jewelery items to him for Rs.10000/-. He had taken the jewelery and gave him the amount. On 05.11.03, Inspector Ved Prakash along with three persons and along with Abid came to his shop and he had handed over to them the mortgaged jewelery items after getting the same wrapped in a newspaper in the Court. A sealed pulanda was prepared which was seized vide seizure memo Ex.PW14/A. The jewelery was sealed in a pulanda with the seal of 'PKJ' was produced wrapped in a newspaper. The witness correctly identified the gold mangalsutra as Ex.PW14/1, one pair of gold tops as Ex.PW14/2 (collectively), one pair of small gold earrings SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :42: as Ex.PW14/3 (collectively) and four gold rings as Ex.PW14/4 (collectively). The witness deposed that these were the same jewelery items which were mortgaged to him by Abid and the same were handed over by him to Inspector Ved Prakash. The testimony of this witness remains unchallenged.
85. PW18 Abid has corroborated the testimony of PW14 but has stated that the jewelery articles were given to him by mother of the deceased. This part of his testimony is not believable. As per DD Entry Ex.PW3/A, lodged in police station Sriniwas Puri by PW2, husband of deceased, his wife was wearing gold mangalsutra while she went missing. From the testimony of prosecution witnesses, it has emerged that deceased and PW2 were married on 22.06.03. They both came to Delhi just three days prior to 04.07.03 and on 04.07.03, Sweety was found missing from her house in Delhi. Her dead body was recovered on 06.07.03 in Hotel Shiv Dev International and no gold jewelery was found on the dead body. These jewelery articles have been recovered on 05.11.03, after the arrest of the accused from the shops disclosed by him. Thus, mother of the deceased had no occasion to have possession of mangalsutra of her daughter. Moreover, being a married woman, the mangalsutra necessarily had to be with the newly married woman. In cross-examination, PW20 has deposed that she did not know any Abid. PW14, PW18, PW31 & PW33 have proved the recovery of the jewelery of the deceased. PW31 & PW33 have deposed that accused had led them to the house of PW18 who accompanied these witnesses to SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :43: the shop of PW14 and got the gold jewelery recovered. Thus, PW31 & PW33 have proved that jewelery was recovered at the instance of the accused.
86. Ex.PW32/1 is the diary of the accused recovered by PW32 from the accused at the time of interrogation in police station Doongarpur which he had handed over to PW33. In the diary, the mobile number of Abid is mentioned. The accused has merely denied in his statement recorded U/s 313 Cr.P.C. about the diary being recovered in personal search but he has not explained anything about it. Thus, from the entire available evidence, the prosecution has proved that jewelery of deceased Sweety was recovered at the instance of the accused.
(vii) Motive
87. It was submitted by Learned APP that the accused had previous acquaintance with deceased Sweety and he had opposed her marriage with PW2 Ashish Dwivdi. Before her marriage, he had also threatened the parents, brother, husband and father -in-law of deceased not to marry deceased Sweety with Ashish. Thus, to carry out his threats, he came to Delhi and lured deceased Sweety to the hotel and killed her.
88. To rebut the said assertion, it was urged on behalf of the accused that there are major contradictions in the testimony of parents and brother of the deceased. The testimony of PW4 is SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :44: hearsay regarding the alleged incident dated 19.06.03 as he himself was not present there. Moreover, he has deposed about an improved version of threats alleged to have been given by the accused to them. There are also major contradictions in the testimony of PW4 & PW6 regarding the incident. On the other hand, PW20, mother of the deceased has not deposed anything about the said incident. The witnesses have not lodged any police report or received any medical assistance after the incident which clearly shows that no such incident had occurred. Otherwise, the same would have been reported to the police.
89. PW2 Sh. Ashish has deposed in his cross-examination that accused Rupesh Chaudhary was not known to him prior to the incident but he had received a telephonic message in the name of the accused, three days prior to his marriage with Sweety. The telephone call was received in the afternoon at his residence telephone number. The gist of the message was that he should not marry Sweety. He had not filed any complaint in this regard to the police.
90. PW9 Sh. Surender, father of PW2 has corroborated this fact. He has deposed that about 3-4 days prior to the marriage of his son with Sweety, he had received a telephone call at his residence from a person who told his name as Rupesh Chaudhary and stated that he wanted to marry with Sweety and if Sweety would be married with Ashish, they would face dire consequences SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :45: and its result would be harmful for them. The witness has not been cross-examined on this part of the deposition.
91. PW4 Sh. Devki Nandan, father of the deceased has deposed about an incident dated 19.06.03, testifying that accused Rupesh Chaudhary had come to his house and had threatened to take away his daughter Sweety or otherwise he would kill him. The witness deposed that accused had come in his absence and he had caused injuries to his wife and son with a sword which he had brought from his car. His wife and son had received injuries on their hands and legs. His son after receiving injuries, broke the sword by pressing it with leg and accused Rupesh Chaudhary thereafter ran from the spot with both the pieces of the sword. The witness also deposed that thereafter he had received various telephone calls from the accused and his friends who threatened them not to complain the matter to the police. They had lodged a report regarding these threats in police station Hiran Magri, Rajasthan. However, no such complaint has been proved by the prosecution.
92. PW20 Smt. Promila Yagnik, mother of the deceased has not deposed about the incident dated 19.06.03. It was submitted by Learned APP that the fact cannot be ignored that her testimony was recorded on 19.04.07 and may be due to memory lapse, she may not have deposed about the said incident.
93. PW6 Sachit Yagnik, brother of the deceased has testified SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :46: that on 19.06.03, at about 12.30 noon, accused Rupesh Chaudhary came to their house at Udaipur. He was carrying a sword. He attacked him and his mother with that sword, as a result his mother received injuries on her right hand and he received injuries at his left hand. The accused threatened them that he wanted to marry with his sister Sweety who was engaged with PW2. After causing injuries to them, the accused left their house. In cross-examination, the witness deposed that on the said day, he, his mother and his sister were present in the house. This assault had lasted for 20-25 minutes and none of their neighbours intervened. The witness stated that they did not telephone to police. The witness gave an explanation for not lodging the complaint to the police that due to marriage scheduled in near future, they did not inform the police. PW4 has corroborated the said explanation and deposed that as there was occasion of marriage of their daughter and with a view to save their family respect in the society, they did not lodge report with the police. PW6 has further deposed that they did not obtain any medical certificate as they had treated themselves at home.
94. Therefore, it emerges from the testimony of PW2, PW6 and PW9 that accused Rupesh had threatened PW2 and PW9, 2- 3 days before the marriage, not to marry with deceased Sweety. He had also gone to the house of deceased Sweety to threaten her parents not to marry Sweety with PW2. The witnesses have also given an obvious explanation for not lodging the report with the police due to marriage in their house, they wanted to save the SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :47: respect of their family in the society by not getting entangled in police reports.
95. It has also come in the evidence of PW4 & PW20 that family of the deceased and accused had resided in the same building between the year 1994 & 1995. PW4 has deposed that there was no social interaction between the two families and he had not seen the deceased and the accused playing together or talking together. The said statement was made by the witness in response to court queries put to him. He has also stated that the accused never proposed to marry Sweety but on 19.06.03, he had come to their house. Thus, it can be gathered that the family of the accused and that of deceased were not strangers.
96. It was argued that PW20, mother of the deceased has deposed that on 07.07.03, she had received a telephone call from the accused, saying that Sweety was with him but the said deposition does not appeal to reason as she did not lodge any report with the police. In case, she had received any information about the whereabouts of Sweety, she would have immediately informed the police. Thus, there is delay in lodging the FIR. Learned APP urged that the missing report of the case was lodged in Delhi and parents of the deceased stayed in Rajasthan. Admittedly, PW20 did not state to police for having received a telephone call from accused on 07.07.03 but she has deposed that she had not suspected against the accused on the day her daughter went missing. But when FIR had to be lodged, she had SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :48: informed her son-in-law regarding suspicion against the accused. Thus, she subsequently developed suspicion against the accused.
97. PW2 has deposed that his father -in-law had told him that he had received a telephone call from accused Rupesh Chaudhary that Sweety was with him and this phone call was received after a week of missing of Sweety and he had intimated about this in turn to police of police station Sriniwas Puri, Delhi but he did not give a written intimation. On 17.07.03, PW2 had lodged a complaint by name against accused Rupesh Chaudhary on the basis of which FIR U/s 366 IPC has been registered against the accused. So, the delay in lodging the FIR is not fatal to the prosecution case. Moreover, the parents of deceased and specifically PW2 & PW9 had no reason to falsely implicate the accused in this case. From the evidence, it emerges that the accused was not happy about the marriage of deceased Sweety with PW2. He not only threatened the parents of the deceased but also tried to influence the in-laws of the deceased to prevent the marriage.
98. It is evident from the deposition of PW5, PW11, PW12 & PW15, the hotel rooms were booked in the name of Mahender Maurya and Kavita Maurya which have been proved to be the fictitious names. None of the witnesses from the hotel have stated that the deceased showed any resistance to be with the accused. This apparently shows that accused and deceased were known to each other and the link between them has been established. Moreso, the marriage of deceased with PW2 had become an SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :49: issue with the accused. The various contradictions pointed out by the defence are minor in nature and do not disturb the substratum of the prosecution case. But prosecution has not been able to establish that accused had forced the deceased to be with him.
99. To sum up, the prosecution has been able to establish the entire chain of circumstances which irresistibly establishes the guilt of the accused. But the prosecution has failed to prove that the accused had abducted Sweety and then brought her in Hotel Shiv Dev International. No evidence to prove this fact has been led. Thus, the prosecution has failed to establish that the accused had abducted Sweety with intent to compel her to marry him or that he would seduce her to illicit intercourse. The dead body of the deceased was found in room no.406 of Hotel Shiv Dev International. Prosecution has further failed to establish that the accused had caused the disappearance of dead body of deceased Sweety. Accordingly, the accused is convicted for offence punishable U/s 302 IPC. He is acquitted from the charge of offence punishable U/s 366/201 IPC. Since two FIRs were registered though they were tried together, copy of the judgment be placed on the case FIR No.303/03, police station Sriniwas Puri also.
Announced in the Open Court On 24.02.2010.
(Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :50: State Vs. Rupesh Choudhary FIR No. 205/03 PS : Nabi Karim SC No. : 87/09 24.02.10 Present : Sh. Mohd. Iqrar, Learned APP for State.
Accused from JC.
Vide judgment announced of even date on separate sheets, the accused is convicted for offence punishable U/s 302 IPC. He is acquitted from the charge of offence punishable U/s 366/201 IPC. Since two FIRs were registered though they were tried together, copy of the judgment be placed on the case FIR No.303/03, police station Sriniwas Puri also.
Put up for Order on Sentence on 26.02.10.
File of case FIR No.303/03, police station Sriniwas Puri be consigned to Record Room.
(SHALINDER KAUR) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :51: State Vs. Rupesh Choudhary FIR No. 303/03 PS : Sriniwas Puri SC No. : 88/09 24.02.10 Present : Sh. Mohd. Iqrar, Learned APP for State.
Accused from JC.
Vide judgment announced of even date on separate sheets, the accused is convicted for offence punishable U/s 302 IPC. He is acquitted from the charge of offence punishable U/s 366/201 IPC. Since two FIRs were registered though they were tried together, copy of the judgment be placed on the case FIR No.303/03, police station Sriniwas Puri also.
Put up for Order on Sentence on 26.02.10.
File of case FIR No.303/03, police station Sriniwas Puri be consigned to Record Room.
(SHALINDER KAUR) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :52: In the Court of Ms. Shalinder Kaur Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 87/09
State versus Rupesh Kumar Chaudhary @
Roop Lal @ Narender Singh @
Habib Khan @Mahender
Kumar Maurya
S/o Padamchand Chaudhary
R/o H.No. 61, Roshan Nagar,
Savena Kheda, Sector 12,
Udaipur, Rajasthan.
Case arising out of:
FIR No. : 205/03
Police Station : Nabi Karim
Under Section : 302/201/404 IPC
Judgment pronounced on : 24.02.10.
ORDER ON SENTENCE:
1. Heard on the point of sentence.
2. On behalf of the convict, it is submitted that he is the only son in his family. His grand father is suffering from cancer. His mother is paralytic and his father is old aged. Convict is not a previous convict nor any case is pending against him. The case of the prosecution is based on circumstantial evidence and does not fall in the category of rarest of rare case.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :53:
3. On the other hand, Learned APP submits that the convict does not deserve any leniency as he has broken the trust of the deceased and then murdered her.
4. In view of the antecedents of the convict, placed before me as well as the facts & circumstances of the case show that the case does not fall under the category of rarest of the rare case, I sentence him for offence punishable under Section 302 IPC to life imprisonment and to pay fine of Rs.2000/-, in default SI for three months. Benefit of section 428 Cr.PC be given. Copies be given free of cost to the convict.
Announced in the Open Court On 26.02.2010.
(Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :54: State Vs. Rupesh Choudhary FIR No. 205/03 PS : Nabi Karim SC No. : 87/09 26.02.10 2:35 PM Present : Sh. Mohd. Iqrar, Learned APP for State.
Convict in JC with Counsel Sh. Pradeep Rana.
Arguments heard on point of Sentence.
Vide Order on Sentence announced of even date on separate sheets, convict is sentenced for offence punishable under Section 302 IPC to life imprisonment and to pay fine of Rs.2000/-, in default SI for three months. Benefit of section 428 Cr.PC be given. Copies be given free of cost to the convict.
File be consigned to Record Room.
(Shalinder Kaur) ASJ- FTC (Central) : Delhi.
26.02.10 SC: 87/09 & 88/09 State vs. Rupesh Chaudhary :55: State Vs. Rupesh Choudhary FIR No. 205/03 PS : Nabi Karim SC No. : 87/09 26.02.10 4:30 PM At this stage, Sh. Padam Chand, father of the convict along with proxy counsel Sh. Prashant Kumar, on behalf of convict appear and submit that the convict wants to deposit the fine.
Reader has reported that a Nil Fine Statement has been prepared as well as the warrants of the convict have been sent, since no fine was deposited earlier. As now, on behalf of the convict, it is stated that fine is to be deposited now. Let the fine be deposited.
Reader has reported that now fine is deposited. Issue notice to Superintendent (Jail) that fine has been deposited in this case and copy of this order be attached with the warrants of the convict regarding depositing of fine. Compliance report be called from Superintendent (Jail) for it.
(Shalinder Kaur) ASJ- FTC (Central) : Delhi.
26.02.10 SC: 87/09 & 88/09 State vs. Rupesh Chaudhary