Delhi District Court
State vs . Kundan Sc No. 32/08 on 18 January, 2014
State vs. Kundan SC No. 32/08
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 32/08
ID No. 02403R0886242007
FIR No. 592/07
U/s 302/201/404 IPC
PS Mehrauli
State Vs. Kundan Singh
S/o Jaget Singh
R/o Vill. Malha Vibouri
PS Kathgodam, Nainital,
Haldwani, Uttarakhand
Date of Institution : 22.12.2007
Judgment reserved on : 04.01.2014
Date of pronouncement : 18.01.2014
Final order : Convicted
JUDGMENT
1. The accused in the present case has faced trial on the allegations that on the intervening night of 1213 August, 2007 at 477, first floor, village Saidulahjab, he committed the murder of his friend, Bipin Kumar and that he also caused certain evidence to disappear which was connected with the said murder and further also dishonestly misappropriated or converted to his own use, the cash withdrawn from the bank account of the deceased, FIR No. 592/07 PS Mehrauli 1 of 93 State vs. Kundan SC No. 32/08 using his ATM card.
2. Briefly stated the chronology of events leading to the arrest of the accused as described in the charge sheet (including the supplementary charge sheet) is as follows:
(a) On 13/8/2007, at about 09:00 PM an information was received at PP IGNOU, PS Mehrauli that parts of a dead body had been found in a rexine bag lying near Lado Sarai jungle. DD no. 41 was lodged in this respect and SI Dinesh Kumar, HC Rajender Singh, HC Virender Kumar and Ct. Chanderpal left for the spot.
(b) On reaching the spot one public person Brahm Singh produced one black rexine bag before the police officials and the same was found containing the head, face, two arms and two lower limbs. The remaining part of the body was not found near the spot despite efforts made to trace out the same.
(c) The rexine bag was taken into possession by SI Dinesh and statement of Brahm Singh was recorded. In the said statement Brahm Singh inter alia disclosed that in the evening of 13/08/2007 he along with his friend Dalbir was passing by PVR Saket service road towards Ghitorni in his car bearing no. DL8CK9025 in front of Lado Sarai, M.B. Road bus stand at about 08:40 PM when they noticed that one unknown person standing at the bus stand threw one black rexine bag into a jungle. He FIR No. 592/07 PS Mehrauli 2 of 93 State vs. Kundan SC No. 32/08 further stated that he then asked his friend to stop the car but in the meantime the said person went away from the spot on a motor cycle which was parked near the bus stand and that he went in the direction of Khanpur.
The complainant further disclosed that he could note down a part of the registration number of the motor cycle as KA9735 and that in the meanwhile one police Constable came running to the spot and disclosed his name as Raghubir and informed the complainant that he also had seen the incident and that thereafter the complainant and Ct. Raghubir went towards the jungle and opened the black bag and found parts of a human body.
(d) Based on the statement of the complainant and the recovery of the parts of the dead body SI Dinesh then prepared rukka u/s 302/201 IPC and sent the same for registration of the FIR. The SHO of the PS Mehrauli then deputed Inspector Atul Kumar for further investigation and he along with the Crime team and photographer reached the spot and inspected the spot and prepared the site plan. Inspector Atul Kumar also inquired from the passersby and residents of the nearby locality about the identification of the dead body but when the dead body could not be identified, the parts of the dead body were sent to the mortuary of AIIMS hospital through Ct. Chander Kant.
(e) A wireless text message to all SHOs of Delhi and NCR and other states was communicated and advertisements were also published for FIR No. 592/07 PS Mehrauli 3 of 93 State vs. Kundan SC No. 32/08 identification of the deceased. During further investigation inquest papers u/s 174 Cr.PC were got prepared and the postmortem of the deceased was got conducted at AIIMS hospital after which the remains of the deceased were cremated.
(f) On 10/9/2007, the brother in law of the deceased, Nirbhay Prashant, on seeing the photograph/advertisement came to the PP IGNOU, Mehrauli and identified the deceased as Bipin Kumar s/o Late Sh. Kanhaiya Singh r/o Village Kushdhar Distt. Rohtash. The said Nirbhay Prashant disclosed that the deceased used to work in Gurgaon and had been missing for sometime and that on 5/9/2007 a missing report had been lodged at PS Civil Lines, Gurgaon. The said relative of the deceased then also disclosed to the police, the mobile number of the deceased and the number of his ICICI bank account and also disclosed that on 12/8/2007 the deceased had last talked to his wife.
(g) During further investigation, the call detail records of the mobile of the deceased were obtained and instructions for stopping the transaction in the account of the deceased at ICICI Bank were also given at the said bank. Statement of account of the deceased was also collected and since the same showed the withdrawal of amount from the said account after the death of the deceased, a CD containing the footage of the ATM at the Saket branch of the said bank was also collected from the bank. The call details FIR No. 592/07 PS Mehrauli 4 of 93 State vs. Kundan SC No. 32/08 collected for the period 10/7/2007 to 1/9/2007 revealed that on 31/8/2007 an outgoing call from the mobile of the deceased had been made to a landline number in Haldwani. A call to the said landline by Nirbhay Prashant revealed that one person by the name of Kundan had made the said call and that the said person works at Madhubani Restaurant, Saket.
(h) During further investigation the account statement of the deceased from ICICI bank and ATM video clipping was also obtained and thereafter surveillance was mounted for the suspect Kundan.
(i) On 24/9/2007 a secret informer informed the SHO PS Mehrauli about the whereabouts of the suspect and pursuant to the said information the police party reached PVR Saket and at the pointing out of the secret informer, the accused Kundan Singh was apprehended by the police officials. During interrogation accused disclosed that he was a friend of the deceased and he had worked along with him at various places. The accused further disclosed that he knew that the deceased resided at a rented premises at village Saidulahjab and that he also knew the financial details of the deceased and admitted that he had murdered the deceased due to greed. He also admitted that after killing the deceased he had cut his body into parts and to destroy the evidence had thrown the body parts at different places. On the basis of the disclosure statement, the accused was arrested. Since the accused had disclosed that he had thrown the torso of the FIR No. 592/07 PS Mehrauli 5 of 93 State vs. Kundan SC No. 32/08 deceased in a nala in front of a shop J.K. Tyre, village Saidulahjab, at his instance the said nala was searched but the torso could not be recovered. The accused then took the police party to the tenanted premises of the deceased and pointed out the place where he murdered the deceased. A crime team and a FSL team were also then called at the residential premises of the deceased. The accused also pointed out the weapon which he used for killing the deceased and the said weapon daab was also got recovered from the said premises. Blood stained mattresses, wooden stool, bed sheet, earth control, suit cover and earth surface were taken into possession. The accused thereafter led the police party to his own premises at H. No. 615, village Saidulahjab and produced two share certificates in the name of the father of the deceased and also produced Rs.60,000/ from his premises and stated that the said money and the share certificates belonged to the deceased and had been taken by him after killing the deceased. One motor cycle bearing number KA04EC9735 make Hero Honda belonging to deceased was also got recovered from the parking lot at G.B. Road, at the pointing out of the accused.
(j) Accused on the next day was produced before the court of a Ld. MM and an application for judicial TIP was moved but accused refused to participate in the TIP. The police remand of the accused was then taken during which efforts were made to trace out the torso of the dead body in FIR No. 592/07 PS Mehrauli 6 of 93 State vs. Kundan SC No. 32/08 nala but the same could not be recovered. Accused was medically examined. Postmortem report of accused was obtained and exhibits were sent to FSL Rohini for opinion.
3. Based on the aforementioned allegations and the material on record, the Ld. Predecessor of this court had framed charges against the accused for the offences punishable u/s 302/201/404 IPC.
4. In order to prove the aforementioned allegations the prosecution has examined 37 witnesses (inadvertently two witnesses Anil Sachdeva and Punit Sharma have been numbered as PW11 and further two witnesses Dr. Akhilesh Raj and Ct. Rajender Singh have been numbered as PW25, by the Ld. Predecessor of this court during the recording of evidence).
5. PW1 Brahm Singh is the complainant and this witness has inter alia deposed that on 13.08.2007, he alongwith his friend Dalbir Singh was passing by the Mehrauli Andheria Mod in an Alto car bearing no. DL 8CK 0924 and that while they were crossing Lado Sarai bus stand, they saw one person throwing a bag in the bushes. As per the deposition of this witness, he then told his friend Dalbir to stop the car but in the meantime, the said person drove away on a motorcycle that was parking at the bus stand and took a U turn towards the side of Khanpur. He has further deposed that he could note down a part of the registration number of the motorcycle as KA 9735. He has then gone on to depose about the coming of one police FIR No. 592/07 PS Mehrauli 7 of 93 State vs. Kundan SC No. 32/08 official initially at the spot and about the arrival of other police officials later on. His testimony in this regard is on the same lines as the assertions in the chargesheet. The statement given by him to the IO has been exhibited during his deposition as Ex.PW1/A. He has also deposed that he had signed the seizure memo Ex.PW1/B at the spot and that the photographs of the dead body were also taken in his presence at PP IGNOU.
6. PW2 Allauddin is the parking contractor of the parking lot at G.B. Road, Sadanand Market, where the accused is asserted to have parked the bike belonging to the deceased. In his deposition, this witness has inter alia deposed that on 24.09.2007 at about 0303.30 PM, some police officials including SHO PS Mehrauli had come to the parking lot of G.B. Road, Sadanand Market and had made enquiry about a motorcycle bearing no. KA 047E 9735 and had informed him that the said vehicle was a stolen vehicle and that since the said vehicle was parked in his parking lot, he had handed over the same to the police. The seizure memo prepared in this regard has been exhibited as Ex.PW2/A, as per the deposition of this witness. This witness has also inter alia identified the accused as the person who was brought by the police in the parking lot on 24.09.2007.
7. PW3 Nirbhay Prashant is the brother in law of the deceased and as per his deposition, his brother in law, deceased Bipin Kumar was working in FIR No. 592/07 PS Mehrauli 8 of 93 State vs. Kundan SC No. 32/08 Hotel Plaza, Sector 14, Gurgaon and that he had last contacted his wife (i.e. the sister of the witness) on 12.08.2007. This witness has also inter alia deposed that he had tried to contact the deceased on his mobile phone but when nobody picked up the phone, he came to the house of his friend Rakesh Kumar Singh at Raj Nagar, Part II, New Delhi, on 03.09.2007 and made efforts to trace out his brother in law and finally when the deceased could not be found, on 05.09.2007 he made a missing complaint in PS Civil Lines, Gurgaon. He has further deposed that on 10.09.2007, he went to PP IGNOU, PS Mehrauli in search of his brother in law and that it was there that he was shown some photographs of some body parts and that he had identified the face belonging to his brother in law, Bipin Kumar and it is then that he came to know that somebody had committed murder of his brother in law and had cut his body parts and had thrown them away. This witness has also then deposed that he informed the police, the mobile number and the savings bank account number of his brother in law. He has also further deposed that he cooperated with the police during further investigation and that he had taken a copy of the mobile phone details belonging to his brother in law and that he observed that on 31.08.2007, an outgoing call had been made by his brother in law to a landline number belonging to Haldwani. He has further deposed that he then made a call on the aforesaid number from a PCO in Delhi and that one person answered on FIR No. 592/07 PS Mehrauli 9 of 93 State vs. Kundan SC No. 32/08 the said landline number and on enquiry informed him that the mobile number 09313341707 is with Kundan who works in Madhuban restaurant, PVR Saket and resides in Saidulahjab. He has further deposed that his brother in law in the year 2006 while working in a factory in Greater Kailash had two close friends namely Sanjay Shrivastava and Kundan Kumar and that this fact was told to him by his brother in law only.
8. PW4 Rambir is the landlord of the premises in which the deceased was assertedly staying on rent. This witness has inter alia deposed that he is a retired officer from RPF and that he resides in H.No. 477, Village Saidulahjab and that the said house consists of first floor and ground floor and that he used to give six rooms on the first floor on rent and that he had given one of the said rooms to deceased Bipin on tenancy in March, 2007. This witness has further deposed that in the evening of 12.08.2007, the deceased alongwith the accused had come to the tenanted premises and that after the said date, he had not seen the deceased or the accused till 24.09.2007 when the police officials brought the accused to his premises. He has also stated that on the day the deceased and the accused had come at the said premises on 12.08.2007, they had parked the motorcycle bearing no. KA 047E 9735 outside his house.
9. PW5 Sanjeev Anand is the owner of the restaurant Supper Factory. He has inter alia deposed that both deceased Bipin and the accused Kundan had FIR No. 592/07 PS Mehrauli 10 of 93 State vs. Kundan SC No. 32/08 worked in the said restaurant at E15, East of Kailash in the year 2007 and that both the deceased and the accused were well known to each other. According to his deposition, he had handed over the bio data and some application forms prepared and deposited by Bipin Kumar and Kundan at the said restaurant to the police.
10.PW6 Sukhvir Singh is the owner of H.No. 615, Village Saidulahjab where the accused as per the case of the prosecution was residing. This witness has inter alia deposed that in the year 2005, he had given one room on rent @ Rs.1500/ per month to one Bahadur Singh and that the accused Kundan was a relative of Bahadur Singh and had come to stay at the said tenanted premises, 56 months prior to 24.09.2007. He has also deposed that his tenant Bahadur Singh had informed him that Kundan being his relative had come to stay with him for sometime and that he had seen Kundan coming with one another person, whom he later came to know as the deceased. He has also deposed that on 24.09.2007, the police officials had come alongwith accused Kundan and had searched the room of Bahadur Singh and that at the instance of accused Kundan, one briefcase having 120 currency notes of denomination 500 each were recovered from the room of Bahadur Singh.
11.PW7 Sh. Naresh Kumar, Senior Scientific Assistant, FSL Rohini has inter alia deposed that on 24/9/2007 he had visited room no. 477, FIR No. 592/07 PS Mehrauli 11 of 93 State vs. Kundan SC No. 32/08 Saidulahjab village on the request of ICPP Bhati Mines and had examined the said premises minutely and had detected blood stains on the floor of the room, on a mini table placed in the said room, on a bed sheet, suit cover, small towel, a portion of gadda and he has also deposed that the weapon of offence which was recovered at the said premises was also found blood stained and that he had seized all the said articles for examination and had prepared a detailed report in this regard which has been exhibited as Ex.PW7/A.
12.PW8 Smt. B.M. Mani, SDA, Transport Authority, Bangalore has been produced by the prosecution to prove that the registered owner of the motor cycle in question was one Bipin Kumar r/o Bangalore.
13.PW9 J.P. Jahar, Ld. Metropolitan Magistrate has proved the TIP proceedings conducted by him and same have been exhibited as Ex.PW9/C. As per the said proceedings the accused had refused to participate in Test Identification Parade.
14.PW10 Saurabh Kumar is the friend of deceased and he has inter alia deposed that during the period 2005 2007 he was working in a Reliance company situated at Kaushambi and that the deceased Bipin Kumar was his friend and was residing at Saidulahjab as a tenant and that on request of the deceased he had allowed him to apply for a mobile connection on his (witness) address. This witness has also stated that said mobile subscribed FIR No. 592/07 PS Mehrauli 12 of 93 State vs. Kundan SC No. 32/08 by the deceased Bipin Kumar was having the number 9313341707.
15.PW11 Col. Anil Kumar Sachdeva, Nodal Officer, Reliance Communication, Connaught Place has placed on record call details of the mobile number being used by the deceased and accused and the same have been exhibited as Ex.PW11/A and Ex.PW11/B. A copy of the cell ID of the said mobile numbers has also been produced on record by this witness and the same has been exhibited as Ex.PW11/C. As per the records produced by this witness the mobile no. 9313341707 subscribed in the name of Bipin Kumar (deceased) and the mobile no. 93133663224 was subscribed in the name of one Anand Singh r/o Haldwani, U.P.
16.PW11 Sh. Puneet Sharma, Branch Manager, ICICI Bank has inter alia deposed that on 17/9/2007 he was working as Home Loan Manager, ICICI Bank at Panchsheel Park with one Tanuj Khosla who was working as Channel Manager in the said branch and on this date one police official SI Dinesh Chand had come to the Bank to collect the account statement of the account bearing no. 002901532543 and that the same were handed over to the said police official by Tanuj Khosla. The account Statement as per the deposition of this witness has been exhibited as Ex.PW11/A. He has further stated that the said account belonged to one Bipin Kumar and Tanuj Khosla had also handed over one ATM video clipping CD containing the footage of the ATM of ICICI bank at Saket to the said police official. This witness FIR No. 592/07 PS Mehrauli 13 of 93 State vs. Kundan SC No. 32/08 has further deposed that the said CD was handed over by Tanuj Khosla in his presence to the IO, who had taken the same into his possession vide memo Ex.PW11/B bearing the signature of Tanuj Khosla at point A. He has also deposed that though the said IO had also requested for video clipping of the ATM of Rudrapur and Bareilli branch, the same could not be provided as there was no camera fixed in the said branches.
17.PW12 Sh. Bablu has merely deposed that on 24/9/2007 he was called by the SHO PS Mehrauli at house no. 477, Saidulahjab and he was instructed to open a room at the said premises. He has deposed that he had prepared the duplicate key of the lock of the said room and that he had handed over the lock along with its duplicate key to the IO and that he had later on came to know that a murder had taken place in the room that he had opened.
18.PW13 Ct. Raghuvir Singh, has inter alia deposed that on 13/8/2007 he was posted at PP IGNOU PS Mehrauli and was on patrolling duty and that at about 08.40 PM, he had seen accused Kundan sitting on the main bus stand Lado Sarai and throwing a black colour rexine bag and thereafter going away on a motorcycle towards Khanpur. As per his deposition, at the same time, one Alto car had also come at the spot and from the car two persons namely PW1 Brahm Singh and Balbir Singh had also told him that they had also seen a person who was sitting on the main bus stand Lado Sarai throwing a rexine bag in the jungle. According to this witness, he then FIR No. 592/07 PS Mehrauli 14 of 93 State vs. Kundan SC No. 32/08 alongwith PW1 went into the jungle and checked the bag and found a male face, two arms of a male body cut from the shoulder and two legs chopped from the knee in the bag. As per the deposition of this witness, he gave the said information to PP IGNOU and that thereafter police officials from the said police post reached the spot and carried out further investigation.
19.PW14 SI Mahesh Kumar, Draftsman, Crime Branch Police Head Quarter has deposed that on 10/10/2007 on the request of SI Dinesh Chand he had visited the house no. 477 Village Saidulahjab and the jungle behind DTC bus stand Lado Sarai and that at both the places he had made rough notes and had taken measurements and thereafter on the basis of rough notes and measurements, he had prepared scaled site plans Ex.PW14/A and Ex.PW14/B.
20.PW15 HC Rampal, Crime Team, South West District, has interalia deposed that on 13/8/2007, on the instructions of Inspector Atul Kumar, he along with SI Vinod Pal had gone to bus stand Lado Sarai and had taken the photographs of the parts of the dead body which was lying in a black colour rexine bag. The 15 photographs taken by him have been exhibited as ExP15/16 to ExP15/30 and the negatives thereof have been exhibited as ExP15/1 to ExP15/15.
21.PW16 Inspector Praveen Kumar, Incharge Crime Team, South District, has interalia deposed that on 24/9/2007 on the instructions of Inspector K.P. FIR No. 592/07 PS Mehrauli 15 of 93 State vs. Kundan SC No. 32/08 Kukreti, he along with PW17 Ct. Dinesh had gone to House No. 477, Saidulahjab and had inspected a room situated in the corner of Ist floor. According to this witness, he along with his team, IO and accused Kundan also had gone to the parking situated in front of Kotha no. 56G.B. Road, where accused Kundan had pointed out towards motor cycle (Hero Honda Passion) bearing no. KA047E9735 which was standing in the said parking. Report in this regard has been exhibited as Ex.PW16/A. The photographs of both the spots taken by PW17 Ct. Dinesh have been exhibited as Ex.PW17/14 to Ex.PW17/24 and the negatives thereof have been exhibited as Ex.P17/1 to Ex.P17/13.
22.PW18 Ct. Raj Kumar has deposed that on 29/8/2007 on the instructions of SI Dinesh Pal, he along with HC Virender had gone to mortuary, AIIMS hospital where the doctor concerned had handed them over three sealed pullandas which were taken into possession by HC Virender vide seizure memo, Ex.PW18/A.
23.PW19 HC Virender has inter alia deposed that on 13/8/2007 on the receipt of DD no. 41, he along with SI Dinesh (deceased), Incharge PP, HC Rajender and Ct. Chanderpal had reached at M.B. Road, Lado Sarai, Bus Stand and on reaching the spot had met Ct. Raghubir and Complainant Brahm Singh who had narrated SI Dinesh Chand the incident. This witness has further deposed that SI Dinesh had then inspected the body parts, FIR No. 592/07 PS Mehrauli 16 of 93 State vs. Kundan SC No. 32/08 prepared the rukka and then made an endorsement Ex.PW30/A thereon and handed over the same to him for getting the FIR registered and that after the registration of the FIR, the investigation of this case was handed over to PW29 Inspector Atul Kumar. As per the deposition of PW29, Inspector Atul Kumar after investigating the scene of crime, he had prepared the site plan Ex.PW29/A at the instance of complainant, had then taken earth sample from the spot and had seized the same vide seizure memo Ex.PW1/B. According to this witness, the dead body was sent to the mortuary of AIIMS through Ct. Chanderpal and an application for preservation of the same, Ex.PW29/B was prepared by ICPP IGNOU SI Dinesh on his dictation. As per PW29, wireless messages were sent throughout India and five teams were prepared and sent to the NCR area for establishing the identity of the parts of body, but were not successful. As per this witness on 21/8/2007 the postmortem on the parts of the dead body was conducted and application Ex.PW29/C along with requisite form Ex.PW29/D were prepared for conducting autopsy and postmortem. He has further deposed inquest papers Ex.PW29/E (colly) were prepared and the dead body was cremated at electric crematorium Sarai Kale Khan and a receipt Ex.PW29/F was issued to this effect. Hue and cry notices and photographs were circulated by him and on the basis of same, one Nirbhay Prashant had come to the Police Post IGNOU on 10/9/2007 and after seeing FIR No. 592/07 PS Mehrauli 17 of 93 State vs. Kundan SC No. 32/08 the photographs, had identified the face and body parts to be that of his brother in law (Jija) Bipin Kumar.
24.PW20 Inspector Vinod Pal Incharge Crime Team South District, has inter alia deposed that on 13/8/2007 on the instructions of Inspector Atul Kumar, he had gone to M.B. Road bus stand Lado Sarai, New Delhi and had inspected a black rexine bag which was found containing parts of male dead body and that he had prepared a report Ex.PW20/A in this regard.
25.PW21 HC Ajay Kumar has deposed that he was the duty officer on 13/8/2007 and that on this date he had received the rukka of the present case through HC Virender Singh and had registered the FIR, Ex.PW21/A.
26.PW22 Ct. Chander Pal has inter alia deposed that on 13/8/2007 on receipt of DD no. 41 he along with HC Virender, HC Rajender and SI Dinesh Pal had gone to the spot where Ct. Raghuvir and one more person was present. According to this witness he along with HC Virender took the dead body to mortuary and got the body preserved till 21/8/2007 and on 21/8/2007 the body was cremated at electric crematorium, Sarai Kale Khan.
27.PW23 Ct. Shiv Karan has merely deposed that he was the DD writer on 13/8/2007 and that on this date he had recorded DD no. 41A, Ex.PW23/A regarding the information given by Ct. Raghuvir Singh through telephone.
28.PW24 Sh. Rakesh Singh has inter alia deposed that in the year 2007 he was residing at Raj Nagar Part II in Delhi and was working as LDC in FIR No. 592/07 PS Mehrauli 18 of 93 State vs. Kundan SC No. 32/08 DOPT and that on 3/9/2007 his friend Nirbhay Prashant had come to him and had told him that his brother in law Bipin Kumar who was working in a hotel in Gurgaon has gone missing and that the last call made by his brother in law was on 12/9/2007. He has also deposed that he along with his friend Nirbhay Prashant on 5/9/2007 had gone to Gurgaon and had made a complaint regarding missing of his brother in law at Civil Line West Police station, Gurgaon and that on 10/9/2007 they had gone to PP IGNOU PS Mehrauli wherein in his presence his friend on being shown some photographs by PP Incharge Dinesh Chand had identified the photographs of the dead body of his brother in law.
29.PW25 Dr. Akhilesh Raj, Senior Resident, Department of Forensic, AIIMS hospital has proved the postmortem report of the deceased as Ex.PW25/A. He has inter alia deposed that the said postmortem report was prepared by Dr. Bharat Verma but the said doctor has now left the services of the hospital but that he identifies his handwriting and signature and that as per the report prepared by Dr. Bharat Verma, the cause of death in this case was shock as a result of hemorrhage due to an incised wound present over the ventral aspect of left upper limb just above the wrist. According to the deposition of this doctor, the said injury was ante mortem and was sufficient to cause death in the ordinary course of nature. It is relevant to mention herein that the said doctor was again recalled by the prosecution FIR No. 592/07 PS Mehrauli 19 of 93 State vs. Kundan SC No. 32/08 on 7/9/2012 and on this date the said doctor has stated that Dr. Bharat Verma has expired about a 1½ years back and that in this case he had also given a detailed opinion with respect to the weapon of offence and the said opinion of Dr. Bharat Verma has been proved by this witness as Ex.PW25/B.
30.PW25 Ct. Rajender Singh has merely deposed that he was sent as a Special Messenger by PW21 HC Ajay Kumar to deliver the copy of FIR at the residence area of Metropolitan Magistrate and to senior officers.
31.PW26 HC Ishwar Singh has inter alia deposed that on 22/11/2007 he had taken one sealed pullanda from the malkhana to AIIMS mortuary vide RC no. 136/21 and handed over the same to doctor who after examining the pullanda has given his opinion and sealed the pullanda with the seal of hospital which he had deposited in the malkhana on the same day and the opinion was handed over to the IO. This witness has further deposed that on 29/11/2007 he had taken the sealed pullandas of this case to the office of FSL, Rohini vide RC no. 142/21.
32.PW27 HC Rameshwar has deposed that he had deposited the case property, CD containing video clipping, motor cycle Hero Honda Passion, personal search articles etc. in the malkhana on various dates and had made the entries in this regard in Register No. 19. The relevant entries have been exhibited as Ex.PW27/A, Ex.PW27/B, Ex.PW27/C and Ex.PW27/D. This FIR No. 592/07 PS Mehrauli 20 of 93 State vs. Kundan SC No. 32/08 witness has also inter alia deposed that on 29/11/2007, he had sent twelve parcels alongwith sample seal to FSL, Rohini. The original MHC(M) Register was also produced in the Court.
33.PW30 Inspector K.P. Kukreti has in his deposition narrated the entire investigation done in this case, including the investigation done by SI Dinesh Kumar (the police official who expired during investigation proceedings). As per his deposition, the statement recorded of Brahm Singh by SI Dinesh and the endorsement made thereon by SI Dinesh Chand have been exhibited as Ex.PW1/A and Ex.PW30/A respectively. He has in detail deposed about the investigation that was carried out by SI Dinesh with effect from 13/8/2007 till 17/9/2007. He has in particular stated that, pursuant to Nirbhay Prashant, the brother in law of the deceased, informing SI Dinesh Kumar about the bank account number of the deceased, SI Dinesh Kumar had collected the statement of account of the deceased from the concerned bank and had also on 17/9/2007 gone to ICICI bank and had collected the video clipping Ex.PW11/B of the ATM counter of ICICI bank located at PVR Anupam, Saket. The investigation carried out by this witness itself with effect from 24/9/2007 has also been deposed about by him. He has in particular deposed that it was he who had been informed by the secret informer that it was the accused who had been using the mobile phone of the deceased and that he shall be visiting PVR Anupam, Complex FIR No. 592/07 PS Mehrauli 21 of 93 State vs. Kundan SC No. 32/08 near Madhuban Restaurant on 24/9/2007 at about 4:00 PM. As per his deposition, on receipt of the said information, he alongwith HC Virender, SI Dinesh and PW28 Ct. Rajkumar had reached Madhuban Restaurant and had apprehended the accused at the pointing out of the secret informer. This witness has further inter alia deposed that he had recorded the disclosure statement of the accused, Ex.PW19/G after the arrest of the accused. He has then deposed about how the accused had pointed out the house of the deceased, the place where he had thrown the parts of the dead body and the site plan of the house of the deceased prepared by this witness assertedly at the instance of the accused has been proved by him as Ex.PW30/B. The recovery of Rs.60,000/ and share certificates in the tenanted premises of the accused and the recovery of the motor cycle at the instance of the accused from G.B. Road, have also been deposed by this witness. PW28 Rajkumar has also deposed on the aforementioned lines only.
34.PW31 Inspector Dilip Kumar has inter alia deposed that on 30/8/2011 he was posted as Inspector at PS Mehrauli and on that day, an application dated 27/8/2011 of Inspector K.P. Kukreti, Ex.PW31/A was marked to him by SHO regarding filing of supplementary chargesheet. This witness has further deposed that on 5/9/2011 he sent PW 32 ASI Ravi Shankar Tyagi along with Ct. Khem Singh to Haldwani to collect the ownership of FIR No. 592/07 PS Mehrauli 22 of 93 State vs. Kundan SC No. 32/08 landline number 05946266495 of Haldwani where accused Kundan spoke from the mobile of deceased on 31/8/2007. PW32 ASI Ravi Shankar had moved an application Ex.PW32/A in the office of General Manager BSNL for obtaining the call details of phone number 266495 upon which PW33 Pushpa Pangtey supplied information vide letter Ex.PW33/C dated 6/9/2011.
35.PW33 Ms. Pushpa Pangtey, Commercial Officer, GMTD, Nainital has produced before the court the Customer Application Form Ex.PW33/A of the landline number 266495. As per the records produced by this witness the said phone was installed at Malla Beura Kathgodam Haldwani Distt. Nainital Uttarakhand in the name of one Danik Saraswati Devi w/o Dhanik Jagat Singh and that the said telephone connection was disconnected on 25/11/2009 and the refund order Ex.PW13/B was issued in this regard. She has also stated that on the asking of the police officials she had supplied the information regarding the aforementioned number to the SHO PS Mehrauli vide letter dated Ex.PW33/C.
36.PW34 P.S. Jantwal is also an officer from Bharat Sanchar Nigam Ltd. Nainital and he has placed on record a payment receipt Ex.PW34/A as per which Dhanik Saraswati Devi had paid Rs.2,000/ for the installation of a telephone connection at her residence. The said witness has also placed on record computerized record of 52 bills issued against the aforementioned FIR No. 592/07 PS Mehrauli 23 of 93 State vs. Kundan SC No. 32/08 telephone number during the period 1/7/2001 to 5/1/2010 and same have been exhibited as Ex.PW34/C1 to Ex.PW34/C1 to C52.
37.PW35 Umesh Mudgul, Zonal Security Manager, ICICI Bank has inter alia deposed that as per record maintained in the ICICI Bank, in the year 2007, all the ATM machines being operated by the said bank had inbuilt cameras in them and recording of TXN images was done by internal camera in the ATM and images were stored in the disc of ATM. As per the deposition of this witness, though the bank do not have any evidence to prove that the ATM camera and recording was not malfunctioning in August 2007, the fact that the image quality of the CD, Ex.PW11/1 in question is good indicates that the same was in working condition. This witness has further clarified that the recording in the ATM camera cannot be tampered with while it is getting recorded and stored in the disc of ATM.
38.The entire aforementioned evidence was put to the accused and his statement was recorded u/s 313 Cr.PC. In the said statement, the accused has denied his complicity in the present case and has taken a stand that in fact on the date of the incident he was not even present in Delhi and that he was not apprehended and arrested in the manner deposed by the police officials. He has inter alia stated that he had gone to his native village at Kathgodam, Nainital in the month of July, 2007 and that while he was away to attend a wedding, on a day, in the end of July, 2007, his young brother FIR No. 592/07 PS Mehrauli 24 of 93 State vs. Kundan SC No. 32/08 Pankaj was picked up from Nainital by some plain clothes men. As per the statement given by the accused after 23 days of the said incident, Pankaj his younger brother telephoned his father on his mobile and informed him that he had been picked up by the police officials of PS Mehrauli and that thereafter his father told him to go to Delhi to help his younger brother. According to the accused once he reached PS Mehrauli the police officials falsely implicated him in the present case though they let off his younger brother. No defence evidence has been led on behalf of the accused.
39.On behalf of the State Ld. APP Sh. R.K. Gurjar has advanced final arguments. On behalf of the accused Ld. Defence Counsel Sh. Shahid Ali has advanced oral arguments and has also filed detailed written submissions on record.
40.The arguments advanced on behalf of the State mainly are that the prosecution has been able to prove conclusively by way of circumstantial evidence that murder of the deceased in the present case must have been done by the accused only and the facts established on record exclude every possible hypothesis of the innocence of the accused. It has been pointed out on behalf of the State that PW13 Constable Raghubir Singh has identified the accused as the person who was seen throwing a black colour rexine bag on the night of 13/8/2007 and the said bag later on was found to contain the body parts of the deceased. It has also been contended on behalf of the FIR No. 592/07 PS Mehrauli 25 of 93 State vs. Kundan SC No. 32/08 State that a public witness PW2 Brahm Singh had also witnessed the act of throwing of the black rexine bag and that though this witness has deposed that he could not see the face of the person throwing the said bag, he has categorically deposed that he had noted down the number of the motor cycle on which the accused had after throwing the bag, run away from the spot. It is the contention of the Ld. APP that the prosecution has been able to prove that the motor cycle belongs to the deceased and that during investigation it was recovered at the instance of the accused himself. Ld. APP for State has submitted that motive of crime was greed and that the accused in his disclosure statement has disclosed that he had come to know that the deceased had recently sold some shares and had huge amount of money in his Bank account and therefore he has committed his murder and after the murder had also withdrawn the amount of Rs.2 lakhs from the bank account of the accused through ATM facility. The contention of the prosecution is that pursuant to the said disclosure statement an amount of Rs.60,000/ was recovered from the premises in which the accused was residing at that point of time and that a video clipping of an ATM machine of the bank where deceased had an account was also procured which conclusively proves that the accused had withdrawn amounts from the account of the deceased on various dates. It is also the contention of the prosecution that infact the investigating agency would not have been able to FIR No. 592/07 PS Mehrauli 26 of 93 State vs. Kundan SC No. 32/08 locate the house of the deceased and the weapon of offence had the accused had not disclosed about the same in his disclosure statement. Ld. APP for State has pointed out that in the disclosure statement Ex.PW19/G the accused had revealed the address of the premises where the deceased stayed prior to his death and pursuant to the said disclosure the investigating team reached the said house and discovered the weapon of offence. It has also been pointed out on behalf of the prosecution that landlord of the premises of the deceased also thereafter confirmed that he had seen the accused with the deceased in the evening of 12/8/2007 and thus as per Ld. APP the said statement of the landlord conclusively proves that the accused was last seen with the deceased. Thus as per the arguments advanced on behalf of the prosecution, the accused was last seen with the deceased, he had the motive to commit the murder of the deceased - the weapon of offence and the amount withdrawn from the bank account of the deceased were recovered at his instance and on his pointing out and he was the one who was seen throwing the body parts of the deceased in the jungle Lado Sarai bus stand. In addition, it has also been pointed out that the prosecution has also been able to prove that it was the accused who had also used mobile phone of the deceased and had made a call to his native house in district Nainital on 31/8/2007 using the mobile phone of the deceased. Thus as per the prosecution the facts established by it are consistent only with the FIR No. 592/07 PS Mehrauli 27 of 93 State vs. Kundan SC No. 32/08 hypothesis of the guilt of the accused and from the circumstances proved on record the guilt of the accused has been fully established and the chain of evidence produced by the prosecution is so complete that it does not leave any reasonable ground for a conclusion consistent with the innocence of the accused. In support of his contentions, Ld. APP has relied upon the following judgments:
● Rumi Bora Dutta Vs. State of Assam 2013 CRI. L.J. 3260. ● Rohtash Kumar Vs. State of Haryana 2013 CRI.L.J. 3183. ● Kachar Dipu @ Dilipbhai Nakubhai Vs. State of Gujarat 2013 CRI. L.J. 3177.
● Mohan Lal & Anr. Vs. State of Punjab 2013 CRI.L.J. 3265. ● Kashmiri lal Vs. State of Haryana 2013 CRI.L.J. 3036. ● Ram Swaroop Vs. State (Govt. of NCT) of Delhi 2013 CRI.L.J. 2997. ● Ram Singh Vs. Central Bureau of Narcotics 2011 CRI.L.J. 3579. ● Ashok Kumar Chaudhary & Ors. Vs. State of Bihar (2008) 12SCC 173. ● Pradeep @ Sanjay Vs. State CRI. A. 110/2005 dated 06.11.2013. ● Sahabuddin & Anr. Vs. State of Assam 2013 CRI.L.J. 1252. ● Mohibur Rahman & Anr. Vs. State of Assam (2002) 6 SCC 715.
● Joseph Vs. State of Kerala (2000) 5SCC 197. ● Staila Sayyed Vs. State Crl. Appeal No. 343/2004 dated 04.02.2008. ● Narender & Ors Vs. State 2009 CRI.L.J. 3613. ● Sanjay @ Kaka Vs. State (NCT of Delhi) (2001) 3SCC 190. ● Ronny @ Ronald James Alwaris etc. Vs. State of Maharashtra Crl. A. No. 1064/1997 & 106566/1997 dated 05.03.1998. ● Dharminder Singh @ Vijay Singh Vs. State 2013 CRI.L.J. 4054. ● Nana Keshav Lagad Vs. State of Maharashtra 2013 CRI.L.J. 4011. ● Harivadan Babubhai Patel Vs. State of Gujarat 2013 CRI.L.J. 3944. FIR No. 592/07 PS Mehrauli 28 of 93 State vs. Kundan SC No. 32/08
41.Ld. Defence counsel, Sh. Shahid Ali, on the other hand, has contended that none of the circumstances being relied upon by the prosecution have been proved by them beyond reasonable doubt and that the chain of evidence is so incomplete that this court cannot at all hold that in all human probability the act of murder of deceased must have been done by the accused only.
The hypothesis propounded by the defence is that infact it cannot be ruled out that it was the brother in law of the deceased, PW Nirbhay Prashant who may have committed the murder of the deceased as the relationship between the deceased and his wife was not very cordial and that to save himself he has put the entire blame on the accused. Ld. Defence Counsel has contended that the cross examination of the material prosecution witnesses on record clearly reveal that neither the weapon of offence, nor the motorcycle of the deceased nor any amount withdrawn from the bank account of the deceased was discovered at the instance of the accused (the contentions in this respect have been dealt with in detail later on in the judgment). It has been pointed out on behalf of the defence that neither the ATM card nor the mobile phone of the deceased have been recovered from the accused and the CD allegedly containing the photographs of the deceased withdrawing the money from the ATM has been manipulated by the investigating agency only to falsely implicate the accused and is even otherwise inadmissible in evidence. It iss also the contention of the Ld. FIR No. 592/07 PS Mehrauli 29 of 93 State vs. Kundan SC No. 32/08 Defence Counsel that the testimony of PW13 Ct. Raghubir that he had seen the accused throwing a black rexine bag in the night of 13/8/2007 cannot be believed at all for it is impossible for this witness to have seen the face of the accused during night hours from the distance of more than 200 meters or so. Thus as per the defence the chain of circumstances brought on record is so utterly incomplete that no conclusion about the guilt of the accused can be drawn for the same. In support of his contentions, Ld. Defence counsel has relied upon the following judgments:
● Virender Kumar Vs. State 2010 (2) JCC 950. ● Kali Ram Vs. State 2010(2) JCC 1578. ● Rakesh Vs. State 2010(2) JCC 1529. ● Alizan Vs. State 2010(2) JCC 1366. ● Sukhdev Singh Vs. State of Punjab 2011(1) JCC(Narcotics) 43. ● Dogar @ Hans Raj Vs. State of Haryana 2011(1) JCC (Narcotics) 18. ● Dhananjay Singh Bhadoria Vs. State 2011(3) JCC 2256. ● Parminder Singh Sethi & Anr. Vs. State & Anr. 2011(3) JCC 1814.
42.I have given careful consideration to the submissions made by the Ld. Counsels and have gone through the entire record.
43.Now in the present case, as narrated hereinabove, the circumstances on the basis of which the prosecution is wanting this court to infer the guilt of the accused are as follows:
(i) The fact that he was seen throwing the body parts of the deceased near the Lado Sarai Bus stand on 13.08.2007 at night, by a public witness FIR No. 592/07 PS Mehrauli 30 of 93 State vs. Kundan SC No. 32/08 and by a Constable on patrolling duty and at the said time he was also seen using the motorcycle of the deceased bearing no. KA 04EC 9735, which motorcycle was ultimately got recovered at his instance only.
(ii) The fact that he was last seen with the deceased on 12.08.2007.
(iii) The fact that the house of the deceased was discovered only on 24.09.2007 at the instance of the accused and the weapon of offence and blood stained articles thereafter were recovered from the said premises.
(iv) The fact that the accused disclosed that he had used the ATM card of the accused for withdrawing money from an ATM of ICICI bank and the said bank provided to the IO, a CD purportedly containing the images of the accused withdrawing the amount from the said account through an ATM at Saket.
(v) The recovery of Rs.60,000/ and two BHEL share certificates from the house of the accused, which as per his disclosure belonged to the deceased.
(vi) The fact that the mobile phone of the deceased was used by the accused for making a call to his native place at Haldwani the call detail records of the mobile of the deceased, Ex.PW11/A show that on 31.08.2007, a call was made from this mobile to a landline number in Haldwani, which the prosecution has sought to prove was installed at the residence of the parents of the accused.
FIR No. 592/07 PS Mehrauli 31 of 93 State vs. Kundan SC No. 32/08
44.On the other hand, the defence is mainly asserting that none of the aforementioned circumstances have been proved beyond doubt and further neither the ATM card nor the mobile phone nor the torso of the deceased were recovered from the accused or at his instance after his apprehension and that therefore the entire case of the prosecution is concocted.
45.After carefully perusing the entire evidence on record and considering the facts and circumstances of the present case, this court is of the considered opinion that the circumstantial evidence proved on record by the prosecution is indeed sufficient to hold that it is the accused only who would have committed the murder of the deceased. The circumstantial evidence, which in the considered opinion of this court forms a complete chain proving the guilt of the accused is as follows:
(a) The house of the deceased could be discovered only on 24.09.2007 by the investigating agency after the apprehension of the accused on the said date at his pointing out and from the said house, blood stained articles and a weapon opined to have been used to cut the body parts of the deceased were recovered.
(b) The accused was last seen with the deceased on 12.08.2007 before the body parts of the deceased were discovered on 13.08.2007.
(c) The accused had withdrawn cash from the bank account of the deceased by using his ATM card which stands proved by the footage of the ATM FIR No. 592/07 PS Mehrauli 32 of 93 State vs. Kundan SC No. 32/08 machine at Saket branch of ICICI bank, wherein the deceased had an account and further Rs.60,000/ had been got recovered from the residential premises of the accused at his instance for which he could not account for.
(d) There was a call made after the death of the deceased from his mobile to the landline number installed at the residence of the parents of the accused in his native village.
(e) The accused refused to participate in the TIP proceedings and infact gave a statement to Ld. MM that he does not wish to participate in the said proceedings because he was seen by the witnesses throwing the bag containing the body parts of the deceased at the Lado Sarai bus stand on 13.08.2007.
(f) The accused gave in his statement u/s 313 Cr.PC, false answers in reply to the incriminating evidence put to him by this court.
46.Coming now to the first of the aforementioned circumstances, as narrated hereinabove, though the body parts of the deceased were discovered by the investigating agency on 13.08.2007, till the time of the arrest of the accused on 24.09.2007, the investigating agency had no clue about the last known residence of the deceased. As per the evidence put forward by the prosecution, though the identification of the dead body had become possible with the help of a relative of the deceased namely his brother in law, Nirbhay Prashant, the police could not still locate the last known FIR No. 592/07 PS Mehrauli 33 of 93 State vs. Kundan SC No. 32/08 residence of the deceased, for the brother in law of the deceased, a native of Bihar was only aware that his brother in law worked in a hotel in Gurgaon and that he was using a particular mobile number. The evidence on record clearly brings out that it was only after the arrest of the accused and his disclosure that the police party could reach the last known residence of the deceased. In the said disclosure Ex.PW19/G, the accused interalia disclosed to the investigating officer, Inspector Kukreti that that he could lead the police to the rented premises of deceased Bipin Kumar where he had committed his murder and that he could also get recovered the weapon that he had used to cut the body parts of the deceased from the said premises only. Now the fact that after the arrest of the accused and his disclosure the police party alongwith the accused reached the rented premises of the deceased at 477, First Floor, Village Saidulahjab and recovered blood stained cushion/gadda, one bedsheet, one suit cover, one towel handkerchief, one sharp edged daab and one stool from the said premises, is a fact which reveals the knowledge of the accused about the last known residence of the deceased, where the deceased was last seen alive with the accused and about the weapon which has been opined to may have been used to cut the body parts of the deceased. The said weapon was sent for forensic examination and was found to have traces not only of human blood but hair were also found stuck thereon. The said fact is clearly mentioned in FIR No. 592/07 PS Mehrauli 34 of 93 State vs. Kundan SC No. 32/08 the opinion dated 22.11.2007, Ex.PW25/B prepared by Dr. Bharat Verma dated 22.11.2007, the doctor who had examined the weapon recovered from the house of the deceased at the pointing out of the accused. Though it could not be ascertained whether the blood or hair was of the deceased or not, for admittedly while conducting the postmortem of the parts of the dead body of the deceased, the blood group of the deceased was not got ascertained nor were his hair preserved, the accused however cannot claim any benefit of doubt on account of the said fact for what is relevant is that the existence of the residential premises of the deceased from where blood stained articles and a weapon were recovered, was not in the knowledge of the investigating agency before the same were pointed out by the accused. In a judgment pronounced by the Hon'ble Supreme Court in the case titled and reported as Gura Singh Vs. State of Rajasthan (2001) 2SCC 205, the following observations were made with respect to the importance of Serology reports wherein the origin of the blood could not be ascertained "We do not find any substance in the submissions of the Ld. Counsel for the appellant that in the absence of the report regarding the origin of the blood, the trial court could not have convicted the accused. The Serologist and the Chemical Examiner has found that the chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be FIR No. 592/07 PS Mehrauli 35 of 93 State vs. Kundan SC No. 32/08 determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant."
47.In another case titled as State Vs. Navjot Sandhu 2005 11SCC 3820, the Hon'ble Supreme Court while elaborating on the provisions of section 27 Cr.PC has observed that "The discovery of fact cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at the particular place."
48.In the present case also, therefore, no benefit of doubt can be given to the accused in view of the absence of the matching of the human blood on the weapon recovered and that of the deceased and since the accused has failed to explain as to how he was in the knowledge of the last known residence of the deceased and the existence of the weapon therein, the said discovery, an incriminating fact, will have to be read against him. Further though the said recovery and discovery of residential premises and blood stained articles is being assailed on behalf of the defence on the ground that that there was no public witness joined in the search of the said premises, it is to FIR No. 592/07 PS Mehrauli 36 of 93 State vs. Kundan SC No. 32/08 be taken note of that PW4, the landlord of the deceased, Rambir has categorically deposed that on 24.09.2007, the police party alongwith the accused had come to premises H.No. 477, village Saidulahjab, Delhi wherein one of the rooms on the first floor had been rented out to the deceased by PW4. He has particularly deposed that on this day one person namely Bablu was called by the police officials to unlock the room of the deceased Bipin and that the said Bablu had prepared a duplicate key and had opened the room and thereafter the police had searched the said room. No doubt in his crossexamination, he has deposed that the police had not allowed him to enter the said room, he has been categorical that it was on this day that the police alongwith the accused had come first time to the tenanted premises of the deceased and that the room of the deceased was got opened by the police by calling one Bablu. This person Bablu has also stepped into the witness box and has been examined as PW12. He has inter alia deposed that he makes locks and keys and that he was called by the police on 24.09.2007 at H.No. 477, Saidulahjab and that he had opened a room on the first floor of the said premises by preparing a duplicate key of the same. At this stage, it will also be relevant to mention herein that one scientific expert from FSL, Rohini PW7 Naresh Kumar has also inter alia deposed that on 24.09.2007 he was requested by the police officials to reach the scene of crime i.e. a room in H.No. 477, Saidulahjab, PS FIR No. 592/07 PS Mehrauli 37 of 93 State vs. Kundan SC No. 32/08 Mehrauli and that he infact had done so and had thereafter collected from the said room, blood stains from the floor, from the table and blood stained towel, a portion of gadda, bedsheets, suit cover, a weapon of offence and that after examining the same, had given detailed reports Ex.PW7/B and PW7/C. The aforementioned three witnesses cannot at all be stated to be interested witnesses who would have deposed falsely only at the instance of the agency. Further the mere fact that the landlord was not allowed to enter the room of the deceased cannot be a ground to discard the testimony of either the landlord or that of the remaining prosecution witnesses including the FSL expert that the accused and the police party had infact come to the said room on 24.09.2007 and that the said room was inspected by the crime team. The contention of the Ld. APP that since the defence counsel had himself chosen not to ask the Investigating Officer the reasons for not allowing the landlord to enter the room, he cannot at the stage of final arguments ascribe malafide intentions to the IO in this regard, cannot be brushed aside and has much merit. At this stage, it will also be relevant to take note of another contention of the Ld. Defence counsel namely that PW4 has deposed in his examination in chief itself that the police had come to his house at about 01.3002.00 PM which is contrary to the version of the prosecution that they had reached the said house only in the evening after the arrest of the accused. The contention of the Ld. Defence counsel is that FIR No. 592/07 PS Mehrauli 38 of 93 State vs. Kundan SC No. 32/08 since the ACP Kukreti PW30 has consistently stuck to a stand that the accused was arrested at about 04.00 PM and that his disclosure was recorded only at about 04.30 PM, the premises of the deceased could not have been discovered pursuant to the disclosure of the accused, if the testimony of PW4 about the timing of the coming of the police party and the accused to his premises is to be accepted and that therefore the asserted discovery of the premises of the deceased cannot be taken to fall within the purview of section 27 of the Indian Evidence Act.
49.In the considered opinion of this court, the mere fact that PW4 has, with respect to the timing of the discovery of the residential premises of the deceased, deposed facts inconsistent to the version of the prosecution, can hardly be a ground to discard his remaining testimony in which he has particularly deposed that the police party alongwith the accused had come to the rented premises of the deceased only on 24.09.2007 i.e. the day the accused was apprehended. In the considered opinion of this court, undue importance to the aforementioned discrepancy cannot be given for the same is not fatal to the case of the prosecution. Further, in as far back as in the year 1979, the Hon'ble Supreme Court in a case titled and reported as Prakash Chand Vs. State (Delhi Administration), 1979 SCR (2)330 held that there is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the FIR No. 592/07 PS Mehrauli 39 of 93 State vs. Kundan SC No. 32/08 Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to the Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. The Hon'ble Supreme Court, further illustrated the said proposition by taking an example namely where an accused person led a Police Officer and pointed out the place where stolen articles or weapon which might have been used in the commission of offence were found hidden and held that in the said illustration, the evidence of the said circumstance, simpliciter, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act. The said proposition of law has been reiterated and reaffirmed by the Hon'ble Supreme Court in the case titled and reported as A.K. Venkatesh & Anr. Vs. State of Karnataka 2005 SCC (Cri) 1938. In view of the said judicial dicta, the contention of the Ld. Defence counsel about the discovery of the tenanted premises of the deceased being outside the purview of the section 27 of the Evidence Act, makes no difference to the admissibility of the circumstance namely the conduct of the accused leading the police to the last known residential premises of the deceased. The Defence could not point out any material on record whatsoever, which could reveal a remote possibility that the investigating agency was aware of FIR No. 592/07 PS Mehrauli 40 of 93 State vs. Kundan SC No. 32/08 the said premises. Neither the bank documents nor the mobile records revealed this address of the accused. Further the brother in law of the deceased, Sh. Nirbhay Prashant has categorically deposed that he was not aware of the address of deceased in Saidulahjab and no suggestion was put to him that he was so aware and had also informed the investigating agency about it. Further, as narrated hereinabove, the landlord of the said premises had also categorically deposed that it was only on 24.09.2007 that the police for the first time came to the said premises alongwith the accused. Thus, it is clear that it was only after the apprehension of the accused and at his pointing out that the intelligence agency could discover the last known residence of the deceased.
50.The next incriminating circumstance which in the considered opinion of this court stands proved against the accused is that he was last seen with the deceased on 12.08.2007 in the evening. Though the time of death in the present case could not be ascertained as mentioned in the postmortem report, Ex.PW25/B in view of the entire body not being available for postmortem, the fact that the body parts of the deceased were discovered on 13.08.2007, the time period between the accused seen last with the deceased and the said discovery is not that huge and therefore is an important incriminating evidence against him. PW4 Rambir, the landlord of the deceased, has inter alia deposed that in the evening of 12.08.2007, he FIR No. 592/07 PS Mehrauli 41 of 93 State vs. Kundan SC No. 32/08 had seen the deceased with the accused on 12.08.2007 when both of them had come to the premises namely H.No. 477, Village Saidulahjab, Delhi wherein one of the rooms in the first floor had been rented out to the deceased. This witness has also deposed that that after this date, he had not seen the accused and the deceased and it was only on 24.09.2007 that the accused was brought to the said premises by the police and he had identified him to be the same person who had come to the premises with the deceased on 12.08.2007. Now the deposition of this witness in this regard is being challenged inter alia on the ground that though this witness in a parrot like manner could narrate the registration number of the motorcycle which the accused had purportedly parked outside his premises on 12.08.2007, in his crossexamination, he could not even tell the registration number of his own car which he has been using for the last two years. In the considered opinion of this court, though the defence may be right in contending that this witness could not have recalled the motorcycle number in question and that therefore it does appear that he has exaggerated in this regard, the said fact itself is not sufficient to discard the testimony of this witness. It is to be taken note of that this witness in his crossexamination on being questioned about him seeing the accused and the deceased in the evening of 12.08.2007, has explained that on the said date the deceased Bipin had come to the rented premises at about 04.00 PM alongwith the FIR No. 592/07 PS Mehrauli 42 of 93 State vs. Kundan SC No. 32/08 accused and that he (PW4) had gone to the room of the deceased to demand the rent for the month of August, 2007 and that the deceased had told him that he would pay the same the next morning. The said deposition to the mind of this court has a ring of truth about it and does explain why the landlord would have recalled seeing the deceased and the accused on 12.08.2007 and therefore even if it appears that this witness has mentioned the number of the motorcycle in question at the instance of the police officials, the witness does appear to be a trustworthy and credible witness.
51.In a case titled and reported as Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat 1983(3) SCC 217, the Hon'ble Supreme Court observed that undue importance should not be attached to minor discrepancies in the testimony of public witnesses and laid down certain guidelines which a trial court must bear in mind while appreciating evidence. Some of the said guidelines which are relevant for the present case and were made by the Hon'ble Supreme Court are:
"(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. and one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the timesense of the individuals which varies from person to person.
FIR No. 592/07 PS Mehrauli 43 of 93
State vs. Kundan SC No. 32/08
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of physiological defence mechanism activated on the spur of the moment."
52.Keeping in view the guidelines laid down in the aforementioned judicial dicta, this court is of the considered opinion that the contentions raised by the defence assailing the credibility of PW4 have no merit. Further, the fact that this witness could not produce the rent agreement between himself and the deceased, is no ground, as contended by the defence, to discard his testimony that he was the landlord of the deceased. Though it is rightly pointed out by Ld. Defence counsel that it is an offence now if a landlord does not get the particulars of his tenant verified from the local PS, there is no law that makes it mandatory for a rent agreement to be in writing. This witness has, on being questioned, deposed that the rent was of Rs.1300/ FIR No. 592/07 PS Mehrauli 44 of 93 State vs. Kundan SC No. 32/08 per month and that the premises was given on rent to deceased Bipin in March, 2007. There is no reason put forward by the Ld. Defence counsel as to why an independent uninterested public person would depose falsely about he being the landlord of the deceased, more so when he admittedly has no grudge against the accused.
53.The next very relevant piece of evidence which incriminates the accused is the CD Ex.PW11/1 placed on record by the prosecution. As per the evidence placed on record, this CD contains the images of the persons who had accessed the ATM machine at the Saket Branch of the ICICI Bank on 16.08.2007. As per the deposition of PW13 Inspector Kukreti, the main investigating officer, the said CD was collected by SI Dinesh from Tanuj Khosla, Bank Manager, ICICI Bank, Panchsheel Park on 17.09.2007. It is a matter of record that both SI Dinesh and Tanuj Khosla could not be examined during trial, for before they could be produced in the witness box, the police official SI Dinesh Kumar expired and Tanuj Khosla left India in the year 2008. However the seizure memo vide which the said CD was collected has been proved on record by HC Virender whose signature appear on the said seizure memo, Ex.PW11/B (it appears that inadvertently, Ld. Predecessor of this court has numbered two witnesses Anil Kumar Sachdeva and Punit Sharma as PW11 and therefore documents produced by both of them have been exhibited as PW11/A and PW11/B). PW19 HC FIR No. 592/07 PS Mehrauli 45 of 93 State vs. Kundan SC No. 32/08 Virender whose signature appear on the seizure memo of the CD has inter alia deposed that on 17.09.2007, he had accompanied SI Dinesh to the ICICI Bank, Panchsheel Park branch where Manager Tanuj Khosla had handed over a CD and after the same was played to them, the CD was taken into possession. Further one PW11 Punit Sharma, Home Loan Manager in ICICI Bank, Panchsheel Park branch has been produced in the witness box and this witness has inter alia deposed that on 17.09.2007 Tanuj Khosla was working as Bank Manager in ICICI Bank, Panchsheel Park branch and that in his presence on 17.09.2007, SI Dinesh Kumar had come to the said branch and had collected the account statement of one Bipin Kumar from Tanuj Khosla and that Tanuj Khosla had also handed over SI Dinesh Kumar one CD containing video recording of ATM belonging to ICICI Bank ATM, Saket. The witness PW11 Punit Sharma has identified the signatures of Tanuj Khosla at point A on the seizure memo. The CD in question was also played in the presence of this witness and he has stated that the images of the said CD belong to Saket ATM of ICICI Bank. In the considered opinion of this court, even in the absence of the IO and Tanuj Khosla, the deposition of HC Virender and PW11 Punit Sharma do prove that on 17.09.2007, SI Dinesh alongwith HC Virender had gone to ICICI Bank, Panchsheel Park Branch and that he was handed over one CD containing the ATM clippings and that the said CD as per the seizure memo was kept FIR No. 592/07 PS Mehrauli 46 of 93 State vs. Kundan SC No. 32/08 in a plastic box and then sealed in a cloth pullanda. It will be relevant to mention herein that though initially Ld. Defence counsel Sh. Ali had sought to contend that since the CD produced in the court was never produced in a plastic box, the CD produced in the court was not the one that was handed over to the IO but subsequently when it was pointed out to him by this court that the perusal of the ordersheets dated 29.05.2008 to 24.09.2008 shows the said CD in a plastic cover/box was produced in the court on 24.09.2008, the Ld. Counsel submitted that since he had not been representing the accused during the said period, he was not aware of the said proceedings. What the said record reveals is that the accused after being supplied the copy of the chargesheet had taken a stand that he be also supplied with a copy of the CD which the prosecution was relying upon to state that it contained the image of the accused using the ATM card of the deceased. Pursuant to the said application, the said CD was infact produced in a cloth pullanda before one of the Ld. Predecessor of this court on 24.09.2008 on which the particulars of the FIR had been found written and the same on opening was found to contain a CD in a cover on which words 'E30, Saket files' was found inscribed. Thereafter vide orders of the Ld. Predecessor of this court, the CD was sent to FSL, Rohini with directions that a copy of the said CD be prepared and thereafter a copy of the said CD was infact supplied to the accused. In view thereof, the contention of the FIR No. 592/07 PS Mehrauli 47 of 93 State vs. Kundan SC No. 32/08 Ld. Defence counsel that the CD in question was not the one that was given to the IO has no merit whatsoever. There are one another contention made with respect to the identity of the CD in question, namely that though the CD in question has been referred in the chargesheet and in the deposition of PW11 as a CD containing videography, the CD in question on being played in court was not found containing any videography but only still images and therefore the CD played in court could not be the one seized by SI Dinesh. With respect to this contention, it is relevant to note that PW35 has clarified that in banking practices, the terminology video clipping is used for both the still photography taken by the internal camera and the photography taken by the CCTV camera. In view of the said clarification on record, the contention made by the Ld. Defence counsel in this regard has no merit.
54.The other main challenge of the defence to the authenticity of the CD in question is that the same has not been proved as per the provisions of section 65B of the Evidence Act. Ld. Counsel Sh. Ali has pointed out that PW11 Punit Sharma in his crossexamination has deposed that it is the IT Department of the ICICI bank which used to maintain the backup of the photographs taken by the camera affixed in the ATM machine and that the data which had been first stored in the inbuilt camera and then in the server could not have been accessed without the password of the server which FIR No. 592/07 PS Mehrauli 48 of 93 State vs. Kundan SC No. 32/08 remained only with the IT Department. The submission of the Ld. Counsel is that since no person from the IT department of the ICICI bank was examined either during investigation or during trial, the CD in question is inadmissible in evidence for no person has deposed before this court that in the said CD the images of the ATM in question were correctly copied from the server of the computer installed in the IT department of the ICICI bank and therefore his contention is that the CD is inadmissible in evidence. I am afraid that I am unable to agree with the said contention of the Ld. Defence counsel in view of the judicial dicta laid down by the Hon'ble Delhi High Court in the case titled as State Vs. Mohd. Afzal and Ors. 107 (2003) DLT 491, wherein the Hon'ble Delhi High Court in paras 271293, after referring to the provisions of Section 65B of the Indian Evidence Act and to the various authorities of English law held that in the context of section 65B of the Indian Evidence Act, the only condition that should be insisted to be complied with, before admitting computer generated evidence, is that throughout the material part of the period to which the computer operations related, the computer was operating properly. The Hon'ble Court has observed specifically in para 293 of its judgment that this is the only practical way to deal with computer generated evidence, unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or FIR No. 592/07 PS Mehrauli 49 of 93 State vs. Kundan SC No. 32/08 interpolation. It has been further made clear by the Hon'ble Court that such challenge has to be established by the challenger and that generic and theoretical doubts by way of smokescreen have to be ignored. In the said judgment the Hon'ble Delhi High Court had also taken approvingly taken note of the English decision R Vs. Shepherd 1993 A.C.380 where one of the contention of the defence was that the person who had deposed certifying with respect to the working of the computers was only a Store executive and was not a computer expert. The said contention was negated by the court by holding that it is not necessary that only an expert should tender the certificate about the working of the computer and it was observed that any person having general knowledge of the system can depose that the computers were working properly. The judgment of the Hon'ble Delhi High Court was approved by the Hon'ble Supreme Court in the appeal proceedings and in the case titled and reported as State Vs. Navjot Sandhu, (2005) 11 SCC 600, the Supreme Court, with reference to admissibility of electronic evidence and the requirement of certificate u/s 65B of the Evidence Act made the following observations:
"According to section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the FIR No. 592/07 PS Mehrauli 50 of 93 State vs. Kundan SC No. 32/08 contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored on huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed in para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of section 65B, which is a provision dealing with the admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the evidence act, namely, section 63 and 65. It may be that the certificate containing the details in subsection (4) of section 65B is not filed in the instant case, but that does not mean that the secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, section 63 and 65."
55.Now in the present case, as narrated hereinabove, it cannot be doubted that the CD Ex.PW11/1 was the one which was handed over by the bank officials to the then IO of this case SI Dinesh Kumar. Further though in the present case there is no employee of the ICICI bank who could depose before this court that on 16.08.2007 the computer or the ATM machine was operating properly, PW35 Umesh Mudgul, Zonal Security Manager, ICICI FIR No. 592/07 PS Mehrauli 51 of 93 State vs. Kundan SC No. 32/08 Bank has deposed that the fact that the image quality of the CD in question is good indicates that the same was in working condition. This witness has clearly deposed that though they do not have any evidence to prove that the ATM camera and recording was not malfunctioning in August 2007, the fact that the image quality of the CD in question is good indicates that the same was in working condition. The CD in question was played in Court during the deposition of this witness and that is how he has deposed that the image quality is good. He also after seeing the CD has categorically deposed that the same contains the images that were taken from the inbuilt camera of the ATM machine for that is how it is reflecting the date and time of the transaction. As per the deposition of this witness, the ATM installed in banks contains two cameras one an inbuilt camera inside the machine and one external wall mounted camera inside the room and that the inbuilt camera takes still photographs from the time of insertion of the ATM card till the completion of the transaction and that the said images are stored in the disk of the ATM. He has also categorically deposed that there is no tool available in the market that can change the time and date shown in the CD. In the considered opinion of this court the deposition of this witness does make it clear that the images recorded in the ATM automatically, at the time of its operation being good, shows that the ATM machine and the computers were working properly. This court itself had the FIR No. 592/07 PS Mehrauli 52 of 93 State vs. Kundan SC No. 32/08 opportunity to view the CD in question at least on 34 occasions when it was played in the court. The images bearing the numbers namely 153447_656_1009_1.jpg, 153448_000_1000_1.jpg,153448_484_1003_1.jpg, 153451_703_1007_1.jpg, 153500_515_1008_1.jpg, 153501_437_1005_1.jpg, 153507_062_8888_1.jpg, 153510_718_1017_1.jpg, 153511_031_1017_1.jpg, 153512_562_1018_1.jpg, 153512_890_1018_1.jpg, 153515_640_1001_1.jpg, 153530_437_1009_1.jpg, 153530_734_1000_1.jpg, 153531_281_1003_1.jpg, 153534_546_1007_1.jpg, 153538_156_1005_1.jpg, 153550_734_1017_1.jpg, 153551_109_1017_1.jpg, 153553_031_1018_1.jpg, 153553_390_1018_1.jpg, 153554_125_1001_1.jpg, 153558_890_1009_1.jpg, 153559_187_1000_1.jpg, 153600_281_1001_1.jpg, 153603_640_1009_1.jpg, 153604_078_1000_1.jpg, 153604_812_1001_1.jpg, 153608_562_1009_1.jpg, 153608_921_1000_1.jpg, 153609_250_1009_1.jpg and 153609_734_1001_1.jpg were found to be infact of the accused by examination of the naked eyes. The image quality of the said images was good enough to come to such a conclusion, yet this court taking into account the submissions of the Ld. Defence Counsel that the quality of the said images is poor and that this court should not on its own form such opinion had sent the CD in question to an expert at the CFSL, CBI, Lodhi road and that the said expert CW1 has also given an opinion that out of 32 selected images he had in particular selected four images and had enhanced the picture quality of the same and had found that FIR No. 592/07 PS Mehrauli 53 of 93 State vs. Kundan SC No. 32/08 the said images having more or less similar facial features when compared with the specimen photographs of the accused. This witness has categorically deposed that all the images in Q1 were purviewed/enlarged many times on computer to check whether it contained any morphed or fabricated images and that in his opinion none of the images in Q1 has been morphed and fabricated. Though the deposition of this witness has also been sought to be questioned on the ground that he had not given the specimen photograph of the accused in a sealed cover and that infact ACP Kukreti had not collected the specimen photograph of the accused from Tihar Jail, in the considered opinion of this Court the contentions raised by the defence in this respect are totally without any merit. The specimen photograph examined by the expert is that of the accused only and that there can be no doubt about the same and that therefore even if ACP Kukreti did not hand over the specimen photograph of the accused in a sealed cover, the same hardly makes any difference whatsoever. The only reason that this court had sent the CD in question to the expert was so that this court could be satisfied beyond doubt the images in the CD were that of the accused only and further also to rule out that the CD contained any morphed images. At this stage, it will also be relevant to consider another aspect of the matter. The statement of account of deceased at ICICI bank have been proved on record, Ex.PW11/A show that on 16/8/2007 in FIR No. 592/07 PS Mehrauli 54 of 93 State vs. Kundan SC No. 32/08 between 3:44 to 3:46 pm Rs.5900/ had been withdrawn from the account of the deceased using the ATM at Saket, New Delhi. The said time and the date is also clearly reflected in the images of the CD and therefore the images in CD in question is corroborated by the statement of bank account of the deceased. Thus in the considered opinion of this court, in the present case the CD in question having been proved to have been procured from the concerned bank and its authenticity not being in doubt in view of the report and the deposition of the FSL expert CW1, is admissible in evidence against the accused and the said CD clearly reveals a clinching incriminating fact, namely that the the accused used the ATM card of the deceased on 16.08.2007, i.e after the death of the deceased.
56.It will also be relevant to note herein another contention of the Ld. Defence counsel namely that since the prosecution has not produced the footage of any other ATM of ICICI Bank, it should be inferred that the said footage did not have the accused withdrawing the amounts from the bank account of the deceased. In the considered opinion of this court, no such inference can be made for the deposition of PW11 Punit Sharma makes it clear that the footage of the ATMs at Rudrapur and Bareilli could not be supplied because the ATM in the said banks did not have the facility of an inbuilt camera and therefore the contention of the Ld. Defence counsel that since the prosecution has not produced the footage of all ATMs, the CD FIR No. 592/07 PS Mehrauli 55 of 93 State vs. Kundan SC No. 32/08 produced is manipulated, cannot be accepted. Further though Ld. Defence counsel has submitted that the prosecution has not been able to prove as to how the accused would have come to know the PIN number of the ATM card, in the considered opinion of this court, the burden of proving the said fact cannot be stated to be upon the prosecution, once the prosecution has proved that it was the accused who had used the ATM card of the deceased. Though it is right pointed out by the Ld. Defence counsel that the disclosure of the accused in this regard that he was aware of the PIN number of the said ATM card is not admissible in evidence, it is also equally true that the prosecution cannot be expected to prove, after the death of the deceased, how the accused came to know of the said number, for the said fact would only be within the special knowledge of the accused.
57.The next incriminating circumstance which can be stated to have been proved by the prosecution against the accused is the fact that a call was made from the mobile of the deceased after his murder to the landline number installed at the residence of the parents of the accused in his native village. The fact that the deceased was using the mobile number 9313341707 is proved by the records produced by PW11 Anil Sachdeva, Nodal Officer, Reliance Communication. As per the Customer Application Form produced by the said witness, the aforementioned number was subscribed in the name of deceased only. Further, though the address of the FIR No. 592/07 PS Mehrauli 56 of 93 State vs. Kundan SC No. 32/08 deceased mentioned in the said form was not his own, PW10 Saurav Kumar has deposed that the deceased was his friend and on request of the deceased that he required address proof for applying for a mobile connection and that his own residence was that of only a tenant, PW10 had allowed him to furnish the address of H.No. B7, Safdarjung Enclave, a premises belonging to his wife in the Customer Application Form. Further, the call detail records of the said mobile number have also been proved by PW11 as Ex.PW11/A which reveal that on 31.08.2007, one outgoing call was made from this number to a landline number 05946266495 at 09.40 PM for about 149.4 seconds. This witness (on being recalled u/s 311 Cr.PC vide detailed orders of this court dated 03.04.2013) has specifically deposed that during the period August, 2007 to 30.09.2007, the computers in the office of Reliance Communication were fully operational and that there was no possibility of tampering or manipulation of the data accessed from the server of the company for their server is completely protected and supervised. He has further categorically deposed that the mobile detail records given by him to the IO in this case and produced before this court are completely authentic and correct and that he further certifies the authenticity of the said records. He has also deposed that the call detail records in question provided by him are a reproduction of the automatic data stored in the main server, which cannot be accessed without the login FIR No. 592/07 PS Mehrauli 57 of 93 State vs. Kundan SC No. 32/08 password and that therefore he has certified that the records are authentic and have not been tampered or manipulated with. The said deposition, in the considered opinion of this court, is sufficient, in view of the judicial dicta referred to hereinabove in the preceding paragraphs to hold that the records Ex.PW11/A are admissible in evidence. Though this witness was crossexamined at length by the defence, there is nothing at all whatsoever that came to the fore during the said crossexamination, on the basis of which it can be inferred that the mobiles records were manipulated by him, a Nodal Officer of a Service Provider, at the instance of the investigating officer. The prosecution has also examined in court PW33 Pushpa Pangtey, Commercial Officer, GMTD, Nainital, Headquarter, Haldwani, Uttarakhand and PW34 P.S. Jantwal, Accounts Officer, Office of Bharat Sanchar Nigam Limited, Distt. Nainital, Haldwani, Uttarakhand. The records produced by both these officers show that the landline number 05946266495 was installed in the name of Danik Saraswati Devi, w/o Dhanik Jagat Singh, r/o Malla Beura, Kathgodam, Haldwani, Distt. Nainital, Uttarakhand. Now admittedly, Jagat Singh is the name of the father of the accused and the address reflected in the records is the address of the native place of the accused and therefore the prosecution by producing the two aforementioned witnesses and the records of the aforementioned landline has been able to prove that the landline number in FIR No. 592/07 PS Mehrauli 58 of 93 State vs. Kundan SC No. 32/08 question was installed in the name of the mother of the accused at the residence of the parents of the accused in his native village. The said records alongwith Ex.PW11/A prove beyond doubt that after the death of the deceased, his mobile was used by some person to make a call at the native place of the accused. Now though the prosecution could not have brought direct evidence to prove that it was the accused himself who had made the said call, the brother in law of the deceased, PW3 Nirbhay Prashant has deposed in court that after going through the call detail records of the mobile of the deceased, when he had noticed that on 31.08.2007, one outgoing call was made from the mobile of the deceased to a landline number 05946266495 at 09.40 PM, he had himself called at the said landline, code of which was of Haldwani and the person who picked the afore numbered landline phone at Haldwani told him that it was the accused who had called the landline number and that he (the accused) had been using the mobile number 9313341707 (the mobile number of the deceased) and that the accused was also using another mobile phone bearing no. 9313363224 and that the accused was working at Madhuban Restaurant, PVR Saket. PW11 Anil Sachdeva, the Nodal Officer, Reliance Communication has also proved the Cell ID Chart of the said two mobiles in question, Ex.PW11/C and has deposed that as per the same, during the period 09.08.2007 to 16.08.2007, the location of both the aforesaid mobiles FIR No. 592/07 PS Mehrauli 59 of 93 State vs. Kundan SC No. 32/08 was at Lado Sarai, Neb Sarai, Mehrauli, PVR Saket and Chhattarpur. In other words the said evidence points out that both the mobiles being used by the accused and that of the deceased, after the death of the deceased on 13.08.2007 were in the same location. Now when the incriminating deposition of PW3 and the records produced by PW11, PW33 and PW 34 were put to the accused during the recording of his statement u/s 313 Cr.PC, the accused admitted that he had been working at Mabhuban restaurant and that the address mentioned in the records produced by PW33 and 34 was that of the residence of his parents in his native village only, he falsely stated that the said landline number was not installed at the said address and that the name of his mother was not Saraswati Devi and that he had never used the mobile number 9313363224. The fact that the accused has given a false answer in this respect is clear from the other records produced by the prosecution. Admittedly the brother in law of the deceased, PW3 had during investigation informed the investigating officer that both his brother in law i.e. the deceased and the accused had worked for a restaurant by the name of Supper Factory in Greater Kailash near Amar Colony and that the said fact had been told to him by his deceased brother in law, who had also told him that he has two close friends namely Kundan i.e. the accused and one Sanjay Shrivastav. On the basis of the information given by PW3, the owner of the said restaurant was examined during FIR No. 592/07 PS Mehrauli 60 of 93 State vs. Kundan SC No. 32/08 investigation and has also been produced in the witness box as PW5. This witness PW5 Sanjeev Anand has deposed that in the year 2007, the deceased had worked in the aforementioned restaurant for one year and the accused had also worked in the same restaurant and that both the deceased and the accused were well acquainted with each other and used to come and go together. This witness has further produced in the court, the bio datas that had been furnished by the deceased and the accused at the time of obtaining employment and the bio data and the form filled by the accused, Ex.PW5/D and PW5/E proved on record by this witness clearly show that the accused himself had given his contact number as 9313363224. When the said incriminating documents were also put to the accused, he evasively stated that the said number was not being used by him but that he might have given the number of some acquaintance of his. The said evasive reply given by the accused does indicate that he has taken a false plea with respect to the mobile not being used by him. No doubt, the Investigating Officer should have examined Anand Singh in whose name the mobile no. 9313363224, was subscribed to prove its assertion that the said Anand Singh was a relative of the accused and it was the accused who was using the said mobile, however the said omission on behalf of the investigating officer, at best, is a lapse on the part of the Investigating Officer, which does not cast any dent on the documents Ex.PW5/D and PW5/E proved by FIR No. 592/07 PS Mehrauli 61 of 93 State vs. Kundan SC No. 32/08 the prosecution on record. In Ram Behari Yadav Vs. State of Bihar, AIR 1998 SC 1850, it was held by Supreme Court that if primacy is given to the omissions or lapses by perfunctory investigation by the investigating agency, the faith and confidence of people would be shaken, not only in law enforcing agency, but also in the administration of justice. It was observed in the said case that it is true, if on account of any lapse, doubts are created in prosecution case, the accused would be entitled to the benefit of that doubt. But, if the prosecution is able to establish its case beyond reasonable doubt against the accused, in spite of lapses, the accused cannot be acquitted because of the lapse on the part of the IO. Substantially, similar view was taken in C. Munniappan and others Vs. State of Tamil Nadu, 2010 IX AD(SC) 317 and it was held that where there has been negligence on the part of Investigating Agency or omissions etc which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence, de hors such lapses carefully to find out whether said evidence is reliable or not or to what extent it is reliable and as to whether such lapses effected the object of finding out the truth and that the conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. Now in the present case, as narrated hereinabove, the prosecution has proved on record the bio data submitted by the accused and the form filled by him at the time of applying for a job FIR No. 592/07 PS Mehrauli 62 of 93 State vs. Kundan SC No. 32/08 in the restaurant owned by PW5 and the said form and the bio data, authored by the accused himself mention the mobile number being used by him as 9313363224. The contention of the defence that the accused could have given the mobile number of an acquaintance of his may appear to be attractive at the first instance but then it was upon the accused to have informed the court as to who the said acquaintance was. The said fact was in the exclusive knowledge of the accused and if he has chosen not to divulge that information to the court, an inference has to be drawn that it was the accused himself who was using the said number. Further the fact that the accused has denied that the name of his mother was Saraswati Devi and that the landline number 05946266495 was not installed at the residence of his parents has hardly any relevance whatsoever in view of the voluminous official record produced by PW33 and PW34 which include the applications made by the mother of the accused for the telephone connection, the deposit slip of the security amount, the bills generated for the said telephone, the application made by the mother of the accused for refund of the security deposit at the time of surrendering the said landline. If the entire aforementioned record produced by PW33 and PW34, maintained at their public offices in Uttarakhand was sought to be refuted by the accused by making a bald assertion that the name of his mother was Saroli Devi and not Saraswati Devi, then he could have easily produced his FIR No. 592/07 PS Mehrauli 63 of 93 State vs. Kundan SC No. 32/08 own parents in the witness box or he could have also placed on record any documentary evidence in the nature of ration card, etc to show that the prosecution is falsely asserting about the existence of the said landline number in the name of his mother at his native home. A mere bald denial of the records produced by public servants, in the considered opinion of this court clearly indicates that the accused has given false answers to the incriminating evidence put to him.
58.It is no more res integra that examination of the accused under Section 313 of the Code is not a mere formality and the answers given by him have a practical utility for the criminal Courts. The statement under Section 313, apart from affording an opportunity to the accused to examine incriminating circumstances against him, also help the Court in appreciating the entire evidence adduced in the Court during the trial. In a case titled and reported as State of Maharashtra Vs. Suresh (2000) 1SCC 471, the Hon'ble Supreme Court held that when the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. To the same effect are the judgments of Hon'ble Supreme Court pronounced in the cases titled as Pershadi V. U.P. State, AIR 1957 S.C. 2011 and State FIR No. 592/07 PS Mehrauli 64 of 93 State vs. Kundan SC No. 32/08 of Tamil Nadu VS. Rajendran AIR 1999 S.C. 3535. In the former judgment, the Hon'ble Supreme Court held that where in a murder charge the accused falsely denies relevant facts which stand conclusively proved the Court would be justified in drawing an adverse inference against the accused. In the latter judgment, it was again observed that if in a case of circumstantial evidence the accused takes a false plea then the same becomes an additional link in the chain of circumstances.
59.In the present case, as narrated hereinabove, not only has the accused falsely denied the using of the mobile number 9313363224, and the existence of the landline number 05946266495 at the residence of his parents in his native village, he has also falsely stated before this court that he never knew the deceased or a person called Bahadur Singh. It is a matter of record that in reply to question no. 45 during the recording of his statement u/s 313 Cr.PC on 15.05.2012, he had taken a stand that he did not even know the deceased however when the additional statement of this accused was recorded on 22.03.2013 (the said additional statement was recorded after it had come to the notice of this court that certain incriminating evidence had not been put to the accused during the recording of his statement on 15.05.2012) and the deposition of PW5 Sanjeev Anand was put to him as per which both he and the deceased were well acquainted with each other and that both of them had worked together in his restaurant, FIR No. 592/07 PS Mehrauli 65 of 93 State vs. Kundan SC No. 32/08 the accused did admit that he was acquainted with the deceased but took a stand that he had never met him once he had left the said job. What the aforementioned record reveals is that the accused had first chosen to give a false reply that he never knew the deceased and it is only when he was put the deposition of PW5, did he chose to admit that he did know the deceased. The accused also has also taken another false plea in his statement recorded u/s 313 Cr.PC and that is with regard to his relationship with one Bahadur Singh, who as per the version of the prosecution was the chacha of the accused and had allowed the accused to stay with him in his tenanted premises at H.No. 615, Village Saidulahjab, from which premises the accused had got recovered an amount of Rs.60,000/ and two certificates of BHEL belonging to the deceased. As per the deposition of the main investigating official PW30 Inspector Kukreti, the accused after his apprehension on 24.09.2007 had after leading the police party to the tenanted premises of the deceased, had also then led the police team to his own residential premises i.e. H.No. 615, Saidulahjab and from a briefcase kept in the said premises, had got recovered Rs.60,000/ and two BHEL certificates belonging to the deceased. The said recovery, as per the version of the investigating official, had taken place in the presence of the landlord of the said premises, one Sukhvir Singh. The said landlord has also been produced in the witness box by the prosecution and has been FIR No. 592/07 PS Mehrauli 66 of 93 State vs. Kundan SC No. 32/08 examined as PW6 and in his deposition, he has supported the version of the investigating agency to the extent that in his presence the accused had got recovered Rs.60,000/ from a briefcase in the aforementioned premises. According to the deposition of PW6, he had given one room in H.No. 615 to one Bahadur Singh and that he had seen the accused coming to the premises of Bahadur Singh often and had asked Bahadur Singh about the accused and he was informed that Kundan is the relative of Bahadur Singh and had come to stay with him for sometime. Now, the said recovery is being assailed on behalf of the defence by contending first of all that the prosecution has not at all proved that the accused was related in any manner to Bahadur Singh or that Bahadur Singh was a tenant of Sukhvir Singh or that the alleged amount recovered belonged to the deceased only. It has also been pointed out by the defence counsel that PW6 has nowhere deposed about the recovery of any BHEL certificates and that the said recovery is also not infact mentioned in the statements u/s 161 Cr.PC of the two police officials, SI Dinesh Chander and HC Virender Kumar who had witnessed the said asserted seizure and that the seizure memo Ex.PW6/A also merely mentions the recovery of Rs.60,000/ from a briefcase in the aforementioned premises and therefore the contention is that the deposition of the IO PW30 Inspector Kukreti with respect to the recovery of BHEL certificates from the aforementioned premises is absolutely false and the FIR No. 592/07 PS Mehrauli 67 of 93 State vs. Kundan SC No. 32/08 seizure memo Ex.PW19/J prepared separately with respect to the said certificates is a manipulated document. Though this court does agree with the Ld. Defence counsel that in the absence of any explanation forthcoming from the prosecution with respect to the necessity of preparing two separate seizure memos Ex.PW6/A and PW19/J when assertedly both the said seizures were made from the same briefcase, the recovery of BHEL certificates does become suspect more so when the landlord PW6 in whose presence the accused had led the police party to his room in the aforementioned premises, has deposed only about the recovery of Rs. 60,000/, this court finds no reason to disbelieve the testimony of PW6 Sukhvir Singh, a public independent witness who has clearly deposed that on 24.09.2007 the police party accompanied by the accused had come to the aforementioned premises and that a briefcase containing Rs.60,000/ was recovered from the said premises at the instance of the accused and that the accused used to stay in the said premises alongwith his relative Bahadur Singh to whom the premises had been rented. The fact that this witness is truthful can be gauged by the fact that he did not tow the line of the prosecution about the recovery of BHEL certificates and stuck to his version that in his presence only Rs.60,000/ had been recovered from the briefcase pointed out by the accused. No doubt the conduct of the IO ACP Kukreti is suspect with respect to the preparation of a separate seizure FIR No. 592/07 PS Mehrauli 68 of 93 State vs. Kundan SC No. 32/08 memo showing the recovery of the BHEL certificates but that alone is not a ground for this court to disbelieve the testimony of PW6, an independent pubic witness. It has been held by the Hon'ble Supreme Court in the case titled and reported as State of Karnataka Vs. K. Yarappa Reddy 2000 SCC (Crl.) 61 that the Courts should not be influenced by suspicious roles played by investigating officers during investigation and that criminal justice should not be made a casualty for the wrongs committed by the investigating officers. Further it is also not necessary that just because the conduct of the IO ACP Kukreti is suspect with respect to the preparation of Ex.PW19/J, the entire investigation done by him is to be viewed with suspicion. The maxim "falsus in uno falsus in omnibus" has no application in India. It is therefore not possible to accept the contention of the Ld. Defence counsel that the entire testimony of the IO ACP Kukreti should be discarded. Now this witness, PW30, Inspector Kukreti has also deposed about the relationship between the accused and the said Bahadur Singh. This witness on being questioned about which family member of the accused was informed about his arrest, has deposed that pursuant to the arrest of accused Kundan, his chacha Bahadur Singh was informed and that the said person had come to the spot of apprehension of the accused and had even put his thumb impression on the arrest memo, Ex.PW9/E. The fact that the accused again chose to take a false plea in his statement u/s 313 FIR No. 592/07 PS Mehrauli 69 of 93 State vs. Kundan SC No. 32/08 Cr.PC with respect to his relationship with the said Bahadur Singh does lead to an inference that the prosecution is right even on this account. It is a matter of record that the accused took a plea in his statement u/s 313 Cr.PC that he did not know any person by the name of Bahadur Singh. However when the bio data and the forms proved by PW5, the exemployer of accused, Ex.PW5/D and Ex.PW5/E which clearly mention that the accused had given the name of Bahadur Singh as one of his references was pointed out to him u/s 313 Cr.PC, he evasively replied that he does not exactly recollect as to why he had written the name of Bahadur Singh as one of his references. In the considered opinion of this court, the bio data and the form Ex.PW5/D and PW5/E do infact prove that Bahadur Singh was well known to the accused and that the accused has given false answer with respect to even this incriminating evidence against him. The contention of the Defence counsel and the suggestions put by him to PW30 ACP Kukreti in this regard namely that the investigating official himself fabricated the name of Bahadur Singh as the chacha of the accused on the arrest memo in order to create false evidence with respect to the residence of the accused at H.No. 615, Saiduahjab is too far fetched and indeed difficult to be accepted, more so when as narrated hereinabove, the name of Bahadur Singh was mentioned by the accused as his reference, in his own bio data. Further it is also to be taken note of that though the accused has FIR No. 592/07 PS Mehrauli 70 of 93 State vs. Kundan SC No. 32/08 taken a stand that he was residing in some tenanted premises at Lado Sarai, he did not lead any evidence in this regard. This court is conscious of the fact that in a criminal trial, it is the duty of the prosecution to prove its case beyond all reasonable doubt and that the weakness in the case of the defence is irrelevant till the prosecution has discharged the burden of proving its own case however what this court wishes to emphasise is that when the prosecution has been able to prove an incriminating fact against the accused and the accused yet wishes the court to disbelieve the evidence put forward by the prosecution, then it is upon him to raise a reasonable doubt based upon some reason and common sense which must grow out of the evidence in the case. In a case titled and reported as Iqbal Moosa Patel Vs. State of Gujarat reported in 2011(1) JCC (Narcotics) 35, it has been observed by the Hon'ble Supreme Court that though it is true that under our existing jurisprudence in a criminal matter, we have to proceed with a presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man and the prosecution is not required to meet any and every hypothesis put forward by the accused. It was further observed that a reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense and must necessarily grow out of the evidence in the case. This court is constrained to note that the doubts raised by the FIR No. 592/07 PS Mehrauli 71 of 93 State vs. Kundan SC No. 32/08 defence with respect to the deposition of PW6 Sukhvir Singh and that of PW30 Inspector Kukreti about the chacha of the Bahadur Singh being informed of the arrest of the accused are indeed trivial. To imagine that the investigating agency would first create the evidence that Bahadur Singh was the chacha of the accused and therefore was informed about his arrest and then plant Rs.60,000/ at the residence of Bahadur Singh, does not at all appeal to common sense. The mere fact that PW6 could not tell the correct colour of the polythene from which the cash was recovered or that he referred to his house at a one storey house and then deposed that there were staircases, does not at all make his deposition inconsistent. Many persons refer to a house having ground and first floor as one storey houses only and do not count the ground floor as a storey. The much emphasis on this statement of the witness by the Ld. Defence counsel both in his oral and written submissions, is infact completely misplaced. In the considered opinion of this court, the prosecution has been able to prove beyond reasonable doubt that the accused had got recovered Rs.60,000/ from his residential premises. Further since the accused failed to give an explanation with respect to the possession of such an amount of money and on the contrary took a false plea about not knowing Bahadur Singh at all, it does lead to the inference that this was the amount that he had withdrawn using the ATM card of the deceased.
FIR No. 592/07 PS Mehrauli 72 of 93 State vs. Kundan SC No. 32/08
60.There is yet another incriminating circumstance available on record which points out towards the guilt of the accused person and that is the refusal of the accused to participate in the TIP proceedings and the statement made by him to the Ld. MM before whom the investigating officer had produced him for TIP proceedings. The said TIP proceedings have been proved on record by the said Ld. MM as Ex.PW9/B. As per the said proceedings, the Ld. MM had enquired from the accused whether he is willing to participate in the TIP proceedings and the statement that the accused gave before the Ld. MM was to the effect that he does not want to participate in the TIP because witnesses had seen him at Lado Sarai bus stand, New Delhi on 13.08.2007. The said TIP proceeding was also put to the accused person at the time of recording of his statement u/s 313 Cr.PC and in reply thereto, the accused admitted that he had refused to join the TIP proceedings and sought to explain that the police official who had brought him to the court had told him that in case he refuses, he will be released. It is indeed difficult to accept the said explanation of the accused for the TIP proceedings clearly record that the Ld. MM had explained to the accused that in case he refuses to participate in the TIP proceedings, an adverse inference would be drawn against him. Therefore the accused was made aware at the time of giving such a statement that contrary to him being released, the said refusal will be taken as a circumstance against him. The FIR No. 592/07 PS Mehrauli 73 of 93 State vs. Kundan SC No. 32/08 Ld. MM who had proved the TIP proceedings had categorically deposed about the warning given by him to the accused but he was not at all cross examined on behalf of the accused. Further the defence also did not choose to put any suggestion to Inspector Kukreti who as per record had produced the accused before Ld. MM for TIP proceedings that it was he who had advised the accused to give such a statement to the Ld. MM. No doubt the contention of the defence that the prosecution has not been able to prove beyond all reasonable doubt that PW1 Brahm Singh and PW13 Ct. Raghuvir Singh had infact been able to see the face of the accused while he was throwing the body parts of the deceased in a rexine bag on the night of 13.08.2007 may have merit, however what has to be borne in mind is that the accused on the date that he was produced before the Ld. MM for TIP proceedings was not aware that the said witnesses had not been in a position to see his face and therefore refused to participate in the TIP proceedings. Further the deposition of PW1 Brahm Singh also proves that the motorcycle that was used for throwing the bag in question was the motorcycle having the registration number of Karnataka KA and also had the numerals 9735. As narrated in the facts hereinabove, this witness PW1 has inter alia deposed that on the night of 13.08.2007 while he was passing by Lado Sarai bus stand, in the night he had seen one person standing at the Lado Sarai bus stand throwing a bag in the bushes and thereafter fleeing FIR No. 592/07 PS Mehrauli 74 of 93 State vs. Kundan SC No. 32/08 away from the spot by using a motorcycle which was parked nearby and that he could note down a part number of the motorcycle. He has also deposed that in the meantime, one police person also came to the spot and informed him that he had also seen the incident of throwing of the bag by a person and that thereafter this witness told the registration number of the motorcycle to him. Now in his crossexamination, he was put a question by the Ld. Defence counsel whether he had noted down the number of the motorcycle to which he has answered that he had not noted down the number of the motorcycle but it was learnt by him as a police Constable was also coming from behind.. Now the said answer is being read by the Ld. Defence counsel to argue that this witness has stated that he had come to know of the said number from the Constable who had been coming from behind and that since the Constable has admitted that he had not noted any number, PW1 had no knowledge of any number and that he has deposed falsely - I am afraid that the Ld. Defence counsel is not correctly reading the crossexamination in this regard and in the considered opinion of this court, the statement given by this witness is to be understood to mean that he had not physically noted down the number of the motorcycle but had remembered it - no doubt, the narration of the question in the cross examination could have been written in a better manner but if the said crossexamination is read in its totality, it is clear that the interpretation FIR No. 592/07 PS Mehrauli 75 of 93 State vs. Kundan SC No. 32/08 sought to be given by the defence to the said statement of the witness is not correct. However, this court does agree with the Ld. Defence counsel that the deposition of this witness makes it clear that he and the Constable, PW13 were at such a distance from the person who threw the bag in the bushes then it may not have been possible for them to see his face. PW1 in his deposition has clearly stated that he had been unable to see the face of the person who had thrown the bag and therefore he cannot identify him. Further though PW13 Ct. Raghuvir Singh has deposed before the court that the accused was the one whom he had seen throwing the bag in the bushes behind Lado Sarai Bus Stand, one does have to agree that it would not have been possible for this witness to have seen the face of the person who had thrown the said bag as he has admitted in his crossexamination that he himself was on a motorcycle while patrolling and further that he was at a distance of about 150 mtrs from the said person and that it was night time and that further he had not given a facial description of the accused when his statement u/s 161 Cr.PC was recorded. Further as narrated hereinabove when PW1 Brahm Singh who was much nearer to the spot where the bag was thrown could not see the face of the person who had thrown the bag, it is indeed difficult to expect that this Constable who had come to the spot later than Brahm Singh could have seen the face of the accused. Having said so, the deposition of these two witnesses does however prove that the FIR No. 592/07 PS Mehrauli 76 of 93 State vs. Kundan SC No. 32/08 motorcycle that was used for throwing the bag in question was the motorcycle having the registration number of Karnataka KA and that also had the numerals 9735. The contemporary documents prepared by the investigating agency on 13.08.2007 including the statement given by the complainant Ex.PW1/A clearly mentions the fact about the complainant having noted down the part number of the motorcycle. The said contemporary written documents cannot be doubted at all and the contention of the Ld. Defence counsel that PW1 Brahm Singh, a public witness deposed falsely merely at the instance of the police officials to safeguard himself is indeed difficult to accept. The suggestion put to this witness that infact it was he who alongwith his friend had dumped the body of the deceased and in order to save themselves, concocted a false story and that PW13 also connived with them and the contentions of the Ld. Defence counsel in this regard, has hardly any basis. The mere fact that PW1 has stated that in his car alongwith his friend Dalbir, there was also a person namely Sushil, a fact which is not recorded in the contemporary documents prepared, does not at all dent the version of the prosecution in this regard. If the said person Sushil was infact the person whom PW1 in connivance with PW13 wanted to shield as contended by the Ld. Defence counsel, there was no reason for him to disclose the presence of the said person, in his cross examination. Merely because a conscientious and an alert public citizen FIR No. 592/07 PS Mehrauli 77 of 93 State vs. Kundan SC No. 32/08 having witnessed the suspicious throwing of a bag informs the police about the same, is no ground to doubt the said citizen himself.
61.In view of the discussion hereinabove, this court is of the considered opinion that the deposition of PW1 and PW13 alongwith the documents prepared by the investigating agency at the spot near Lado Sarai bus stand on 13.09.2007 conclusively prove the fact that the motorcycle that was used by the person throwing the bag in question was having its part registration number as KA 9735. This fact assumes importance if one considers the fact that the deceased has been proved to be the registered owner of a motorcycle KA 04EC 9735 (Hero Honda Passion, grey colour) and the version of the prosecution that it was at the instance of the accused that this motorcycle was got recovered from the parking lot near G.B. Road. The prosecution, during trial, has produced in the witness box PW8 B.M. Mani, SDA, Transport Authority Bangalore North who has filed on record the registration documents available with the said authority and reveal that the said motorcycle was registered in the name of Bipin Kumar. The said records are also however being disputed on the ground that the same are not sufficient to prove the fact that the motorcycle recovered in the present case belonged to the deceased because the said witness has only deposed that the said motorcycle belonged to one Bipin Kumar, a resident of Bangalore and that the prosecution has not proved that the deceased ever FIR No. 592/07 PS Mehrauli 78 of 93 State vs. Kundan SC No. 32/08 resided in Bangalore. The said contention of Ld. Defence counsel has also no merit for the records produced by this witness Ex.PW8/A not only show the name of the registered owner as Bipin Kumar but also show his parentage as Late Kanhaiya Lal, which indeed is the name of the father of the deceased. The records also bear the signature of Bipin Kumar and the said signatures bear striking resemblance to the signatures of deceased Bipin Kumar appearing on Ex.PW5/C, the bio data that has been deposed by PW5 to have been submitted by the deceased at the time of applying for a job in the hotel of PW5. The said bio data also shows that the deceased has done his Bachelor's course in Hotel Management from T. John College, Bangalore and had worked in Bangalore till September, 2005. The said fact explains the registration of the motorcycle in question in Bangalore. Hence the contention of the defence that the prosecution has not proved that the deceased had got the motorcycle registered at Bangalore is liable to be rejected.
62.Coming now to the contention of the Defence that the asserted recovery of the motorcycle at the instance of the accused from the parking lot in front of G.B. Road is suspect, it will be relevant to mention that apart from the police officials, the contractor of the aforementioned parking lot, PW Allauddin has deposed in his testimony that on 24.09.2007, a police party alongwith the accused had come to his parking lot and that the motorcycle FIR No. 592/07 PS Mehrauli 79 of 93 State vs. Kundan SC No. 32/08 in question was recovered from his parking lot. Now this circumstance of the recovery of the motorcycle of the deceased is being questioned by the defence on the ground that this witness in his examination in chief itself has stated that the police party and the accused had come to his parking lot on 24.09.2007 at about 0303.30 PM and further that this witness has admitted in his crossexamination that he had himself not seen the accused parking the same but that his employees had informed him about the same and that the motorcycle in question was in an unlocked condition in his parking lot. The contention of the Ld. Defence counsel is that as per the testimony of this witness, the motorcycle in question was assertedly recovered from the parking lot at about 0303.30 PM by which time, as per the version put forward by the prosecution, the accused was not even arrested. The contention therefore is that if this court wishes to rely upon the testimony of this witness, then the only conclusion that the court should draw is that the recovery of the motorcycle was made prior to the arrest of the accused, more so when ACP Kukreti PW30 has consistently stuck to his stand that the accused was arrested at about 04.00 PM and that his disclosure was recorded at about 04.30 PM. Ld. Defence counsel has also pointed out that according to this witness, the police officials who had come to his parking lot on 24.09.2007 had given him a parking slip, a fact which is again contrary to the version put forward by the prosecution as per which the FIR No. 592/07 PS Mehrauli 80 of 93 State vs. Kundan SC No. 32/08 accused had disclosed that he had lost the parking slip.
63.The contention of the Ld. APP on the other other hand is that the witness PW2 may have deposed incorrectly with respect to the coming of the police party and the accused at the parking lot, for after a gap of few years, a public witness may forget the exact timing of events. In the considered opinion of this court, the fact that the motorcycle in question has been recovered from a space accessible to all and that too in an unlocked condition does make this circumstance of this recovery weak, more so when PW2 has stated that in case a parked vehicle remains unclaimed for 78 days, it is thereafter deposited with the police station. However having said so, the said weak link of evidence is not fatal to the case of the prosecution. What the depositions of PW1 and PW13 and the records proved by PW8, cumulatively prove is that the motorcycle which was used to reach Lado Sarai to throw the body parts of the deceased was the motorcycle of the deceased himself. Further the deposition of PW4 also reveals that the accused and the deceased had last come to the tenanted premises of the deceased on a motorcycle. Even though this court agrees that the said witness would not have noticed the registration number of the said motorcycle, there is no reason to suspect that he has falsely deposed even about the coming of the accused and the deceased on a motorcycle to the tenanted premises. Further PW6, Sukhvir Singh has deposed in his FIR No. 592/07 PS Mehrauli 81 of 93 State vs. Kundan SC No. 32/08 testimony that he had seen the accused and one other person coming to the tenanted premises of Bahadur Singh on a motorcycle very often and that he had later on only come to know that the name of the said person was Bipin i.e. the deceased. The said depositions of PW1, PW4, PW6 and PW13 alongwith the statement given by the accused to the Ld. MM while refusing to participate in the TIP proceedings lead to the only irresistible inference that it was the accused who had come on the motorcycle of the deceased to the Lado Sarai bus stand and had thrown the body parts of the deceased on the night of 13.08.2007 in the jungle next to the said bus stand.
64.At this stage, it will also be relevant to take note of that the accused has infact taken a plea in his statement u/s 313 Cr.PC that he was not even present in Delhi in the month of August, 2007 and that he had left Delhi for his native village in the last week of July, 2007. In other words, the accused took a plea of alibi in the said statement but yet again failed to prove the same at all. None of the members of the family of the accused have stepped forward to support him in this regard.
65.Much emphasis has been laid down by the Ld. Defence counsel on the fact that neither the ATM card nor the mobile phone nor the torso of the deceased could be recovered even after the apprehension of the accused and that these facts itself prove that the accused has been falsely implicated. With respect to the said contention, it will have to be noted that the accused FIR No. 592/07 PS Mehrauli 82 of 93 State vs. Kundan SC No. 32/08 could be arrested only after one and a half month of the murder and therefore it is acceptable that the torso of the deceased could not be recovered. As regards the non recovery of the ATM card, as per the deposition of PW30, Inspector Kukreti, the deceased SI Dinesh, in the case diary, had mentioned that he had gone to the official of the Axis bank near Filmistan who had informed him that the ATM card of the deceased had got stuck in the ATM machine and had thereafter been destroyed. Though due to the death of SI Dinesh, the prosecution could not explain to the court as to why the statement of the official of Axis bank was not recorded by him, it has been pointed out by the Ld. APP that the case diary maintained by the said SI in the regular course of his duty does reflect the said fact. The non recovery of the mobile phone of the deceased is not also a factor on the basis of which it can be deduced that the accused is innocent for a mobile instrument can be easily destroyed. The hypothesis put forward by the Ld. Defence counsel that it was infact Nirbhay Prashant, the brother in law of the deceased who had committed the murder of the deceased, because the wife of the deceased and the deceased had a strained relationship has to be rejected for there is not a shred of evidence produced by the accused to support the said hypothesis. Apart from putting some suggestions to Nirbhay Pandey in this regard, which were denied by the said witness, the accused has not pointed out or produced any material on FIR No. 592/07 PS Mehrauli 83 of 93 State vs. Kundan SC No. 32/08 record which reflects that there was some strained relationship between the deceased and his wife. On the other hand, PW Nirbhay Prashat has categorically deposed that on 12.08.2007, his jija i.e. the deceased had spoken to his sister. Though this witness was crossexamined at length, in the considered opinion of this court, nothing has come forward in the said crossexamination to create even a doubt that he was infact the person who had committed the murder of the deceased.
66.At this stage, this court would wish to clarify that though this court has not referred in its present judgment, the authorities/case law relied upon by the Ld. Defence counsel, this court has gone through the said case law in detail. In the said case law, the Hon'ble Higher Courts have discussed some instances where the recoveries made by investigating agencies should not be believed in the absence of public witnesses. On the other hand, even the Ld. APP has filed on record atleast 19 judgments and in some of the said judgments, the Hon'ble Higher Courts have accepted the recoveries made during the investigation of a criminal case even in the absence of any independent public persons witnessing the same. In the considered opinion of this court, the facts, circumstances and the evidence led in all the cases relied upon by the Ld. Defence counsel and the Ld. APP are distinct and different from the evidence that has come before this court in the present case and therefore having regard to the specific circumstances and the FIR No. 592/07 PS Mehrauli 84 of 93 State vs. Kundan SC No. 32/08 evidence, proved on record in this case, the strands of probative reasonings which appealed to the Higher Courts in the cases before them cannot be mechanically extended to this case. In the considered opinion of this court, the chain of events proved by the prosecution in the present case do show that within all human probability, the offence has been committed by the accused. Judicial dicta in this regard is clear that a court is expected to consider the total cumulative effect of all the proved facts alongwith the motive suggested by the prosecution which induce the accused to commit a crime in a particular case. The Hon'ble Supreme Court in a case titled and reported as Sarbir Singh Vs. State of Punjab 1993 Cri.L.J. 1395 has observed that the existence of a motive is often an enlightening factor in a process of presumptive reasoning in cases depending on circumstantial evidence. In the present case, the fact that the prosecution has been able to prove that the accused had, after the death of the deceased, used his ATM card to withdraw money from the account of the deceased shows that his motive was greed of money, for which he chose to kill his own friend. In the considered opinion of this court, the fact that the accused was last seen with the deceased, he was the one who led the police party to the last residence of the deceased, the fact that the footage of the ATM installed at ICICI Bank where the deceased had an account revealed that the accused had withdrawn money from the account of the deceased, the fact that the FIR No. 592/07 PS Mehrauli 85 of 93 State vs. Kundan SC No. 32/08 accused was unable to account for Rs.60,000/ recovered from his residential premises, the fact that the mobile of the deceased was used to make a call at the landline number installed at the residence of the parents of the accused at his native place, the fact that the accused gave many false answers in his statement u/s 313 Cr.PC form a complete chain of events, the total cumulative effect of which is that the same show that within all human probability, it was the accused who had committed murder of his friend. The said chain of evidence is complete and does not leave any reasonable ground for a conclusion consistent with the innocence of the accused. As per section 3 of the Indian Evidence Act, a fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under circumstances of a particular case, to act upon the supposition that it exists. Thus the standard to be applied in determining whether a fact stands proved or not, is whether a prudent man would consider its existence probable. In the considered opinion of this court, the prosecution has been able to prove beyond reasonable doubt, all the incriminating facts pointing out that it was the accused only who had committed the murder of the deceased Bipin Kumar, and had thereafter tried to cause disappearance of the evidence of his dead body and had also thereafter misappropriated the amount deposited in the bank account of the deceased by using his ATM FIR No. 592/07 PS Mehrauli 86 of 93 State vs. Kundan SC No. 32/08 card and had also misappropriated the mobile phone of the deceased.
67.In view of the discussion hereinabove, the accused is hereby held guilty of the offences punishable u/s 302, 201 and 404 IPC.
Announced in open Court on this 18th day of January, 2014 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 592/07 PS Mehrauli 87 of 93 State vs. Kundan SC No. 32/08 IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI FIR No. 592/07 PS Mehrauli State Vs. Kundan Singh ORDER ON SENTENCE Present: Sh. Girish Giri, Ld. APP for the State.
Convict from JC.
1. The case is today fixed for orders on sentence to be imposed upon the convict. Vide judgment dated 18.01.2014, the accused in the present case stands convicted of the offences punishable u/s 302, 201 and 404 IPC.
2. Both the Ld. APP and the Ld. Defence counsel have forwarded arguments mainly on the point of sentence with respect to the offence punishable u/s 302 IPC.
3. Sh. Girish Giri, on the one hand, has submitted that the accused betrayed the trust of his friend and murdered him in cold blood and that therefore he should not be shown any leniency whatsoever. Ld. APP has further submitted that the brutality with which the accused murdered his friend and cuts his body parts shows his depravity of mind and his submission is that the offence committed by the accused is an offence which has shaken FIR No. 592/07 PS Mehrauli 88 of 93 State vs. Kundan SC No. 32/08 the conscience of the society and therefore present is a rarest of rare case in which capital punishment must be imposed upon the convict.
4. Sh. Shahid Ali, on the other hand, has submitted that the present case does not at all fall within the category of rarest of rare cases. His submission is that the convict is a young person aged about 3233 years and that he must be granted an opportunity to reform himself. According to Ld. Defence counsel, the accused is the eldest son and that the family income of his parents is only about Rs.10,000/ per month. Ld. Counsel submits that the brutality with which the offence has been committed is not the only ground this court has to bear in mind while pronouncing orders on sentence in a case punishable u/s 302 IPC. He has contended that in a case of circumstantial evidence the courts should lean towards life imprisonment. He has further submitted that every murder is brutal but that brutality alone should not be a ground for judging whether the case is one of the rarest of rare cases. He has stressed that this court must consider whether the accused has a criminal history; whether he is a criminal or a professional killer and whether he will be an ardent criminal and a menace to the society. Ld. Counsel has pointed out that despite the fact that the offences committed by the accused were heinous in Mohd. Chaman Vs. State (NCT of Delhi) (2001) 2SCC 28, Dilip Premnarayan Tiwari & FIR No. 592/07 PS Mehrauli 89 of 93 State vs. Kundan SC No. 32/08 Anr. Vs. State of Maharashtra (2010) 1SCC 775, Sebastian @ Chevithayan Vs. State of Kerala (2010) 1SCC 58, Rajesh Kumar Vs. State through Government of NCT of Delhi (2011) 13SCC 706 and Amit Vs. State of Uttar Pradesh (2012) 4SCC 107, the Hon'ble Supreme Court in the said cases had commuted the death sentence to life sentence. Ld. Counsel has also submitted that probability of reformation and rehabilitation of the accused has to be considered and burden is on the State to lead evidence to prove that there is no probability of reformation or rehabilitation of the accused.
5. I have carefully considered the submissions made by the Ld. Defence Counsel and Ld. APP for the State. In a case titled and reported as Sushil Sharma vs. State of NCT of Delhi 2013 X AD(SC) 321, the Hon'ble Supreme Court has laid down that various factors like the age of the accused, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and has become a threat to the society are factors which the criminal court will have to examine independently in each case, before pronouncing sentence upon a convict. In the said case before the FIR No. 592/07 PS Mehrauli 90 of 93 State vs. Kundan SC No. 32/08 Hon'ble Supreme Court, the convict had been imposed death sentence for having committed the murder of his wife in a very brutal manner. The Hon'ble Supreme Court however took note of the fact that the convict had no previous criminal antecedents and that no evidence had been led by the State to indicate that he is likely to revert to such crimes in future and therefore held that it was not possible to say that there was no chance of the convict being reformed and rehabilitated. The Hon'ble Supreme Court also held that the brutality alone does not justify death sentence in every case.
6. Keeping in view the aforementioned judicial dicta, this court is of the considered opinion that the convict does not, in the present case, deserve death penalty. Admittedly, the convict has no previous criminal antecedents and it does appear from the totality of the attendant circumstances and material on record that he is not a hardened criminal but a person of weak character who apparently gave into the temptation of greed and therefore does, in the considered opinion of this court, deserve to be granted an opportunity to reform himself. Ld. APP has not pointed out any evidence on record which shows that there is no chance of the convict being reformed and rehabilitated. As held by the Hon'ble Supreme Court, the brutality with which the accused disposed off the body of his deceased friend is not a ground to justify the death sentence in the present FIR No. 592/07 PS Mehrauli 91 of 93 State vs. Kundan SC No. 32/08 case. Taking into consideration, the age of the convict, his socio economic status and the fact that the accused is not a confirmed criminal, this court hereby imposes upon the convict, life imprisonment and a fine of Rs. 15,000/ for the offence committed by him and punishable u/s 302 IPC. It is made clear that in default of payment of fine, the convict will have to undergo one year rigorous imprisonment. As regards the offence committed by the accused u/s 201 IPC, a sentence of seven years rigorous imprisonment and a fine of Rs.5000/ is hereby imposed upon the convict. It is made clear that in default of payment of fine, the convict will have to undergo six months rigorous imprisonment. Further, as regards the offence punishable u/s 404 IPC, the convict is hereby awarded a sentence of 3 years rigorous imprisonment and fine of Rs.5000/ and in default of payment of the said fine, the convict will have to undergo six months rigorous imprisonment.
7. All the sentences are to run concurrently and the convict is to be granted the benefit of section 428 of Cr.PC. Copy of this order of sentence be given to convict free of cost, today itself. The case property stands confiscated to the State after the expiry of period of appeal/revision. This file be now consigned to record room.
Announced in the open Court
on this 21st day of January, 2014
FIR No. 592/07 PS Mehrauli 92 of 93
State vs. Kundan SC No. 32/08
(Anu Grover Baliga)
Special Judge: NDPS
New Delhi
FIR No. 592/07 PS Mehrauli 93 of 93