Delhi District Court
The State vs Sachin Kumar on 27 May, 2017
IN THE COURT OF SHRI SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-05, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
SESSION CASE NO. 2216/2016
IN THE MATTER OF:
The State
VERSUS
1. Sachin Kumar
S/o Sh. Girvar Singh,
R/o H. No. 554/3, Sanjay Colony,
Arthala, Ghaziabad, U.P.
2. Sunil
S/o Sh. Ratan Singh,
R/o B-282, Rajeev Colony, Mohan Nagar,
Ghaziabad, U.P.
3. Ms. Prabha
W/o Late Sh. Rakesh,
R/o B-401, Gali no. 9, Om Nagar,
Meethapur, New Delhi
SC No. 2216/2016 State v. Sachin & Ors. Page No. 1 of 86
Date of institution : 27.09.2011
Date of arguments : 11.05.2017
Date of order : 27.05.2017
JUDGMENT
The prosecution case, as projected, is that on 08.05.2011, Khadak Prasad reached to police station Jaitpur and missing report was lodged vide DD No. 32 A dated 08.05.2011 stating therein that on 06.05.2011, his son Rakesh aged about 22 years went to his in-laws house i.e. House No. 401, Gali No.9, Om Nagar on his motorcycle No. DL 6S AD 1670 (Stunner Honda) and he came from there on 07.05.2011 in the morning but he did not reach at his home. The phone number of his son, 9873813447 was switched off. His son Rakesh was bearing black stripped shirt, sleti (grey) colour pant and black shoes.
2. The First Information Report (FIR) No. 134/2011 was registered at Police Station Jaitpur under Section 364 of the Indian Penal Code, 1860 (in short 'IPC') on 21.05.2011 on the statement of Khadak Prasad that his son Rakesh was married with accused Prabha on 11.12.2008 but after some months, some differences cropped up between them. His son Rakesh used to go sometimes his in-laws house at Om Nagar since March, 2011 and he used to tell him about said goings to his in-laws house. On 04.05.2011 at about 3:00 p.m., SC No. 2216/2016 State v. Sachin & Ors. Page No. 2 of 86 he received a phone call of the father in law of his son Rakesh namely Sukh Lal requesting him to send his son Rakesh at his house as he as well as his wife were going to Jhansi to attend a marriage ceremony and his younger boy had gone to Rajasthan to attend some other marriage and her daughter Prabha and her niece are alone at the house. On the same day, his son Rakesh on asking by his father went to the house of his father in law and returned at about 9:00 a.m. on 05.05.2011. In the evening of 05.05.2011, his other son Balram received telephone call from accused Prabha and his said son Balram told to her that today, his brother Rakesh would not come to her house at night. Next day on 06.05.2011, at about 4:30 p.m., he (Khadak Prasad) received a telephone call from accused Prabha and requested him to send Rakesh at her home as they are alone at home. He sent his son Rakesh same day at about 8:30 p.m. to his in- laws house at Om Nagar, Meethapur and when his son Rakesh had reached to the house of his in-laws, his other son Balram talked telephonically to Rakesh at about 9:00 p.m. on the same day but next day on 07.05.2011 at about 7:00 p.m., his son Balram made call on the mobile number of Rakesh i.e. 9873813447 but the said phone was switched off and then he talked to the accused Prabha and asked about coming of his brother Rakesh and on this, she replied him that he had left at 6:00 a.m. from there and thereafter, they tried to contact on the phone of Rakesh repeatedly but every time his mobile was found switched off. His son Rakesh went there on motorcycle No. DL 6S AD 1670. He had searched for his son from his house to police SC No. 2216/2016 State v. Sachin & Ors. Page No. 3 of 86 station Badarpur nothing could be known about his son and his motorcycle. He reached to in-laws house of his said son where he talked to accused Prabha, she replied that he had already gone from there at 06:00 in the morning and he wanted to go from here at 10:00 p.m.on motorcycle and she stopped him from going by taking key of motorcycle. He asked the accused Prabha why she did not told him at night by making phone call. When he could not found his son, he lodged missing report vide DD No. 32A on 08.05.2011 at police station Jaitpur and thereafter he searched his son but he could not be found then he got recorded his statement on 21.05.2011 at police station stating that his son got kidnapped with intention of kill by accused Prabha through accused Sachin and Ranjit.
3. After registration of FIR, Sub Inspector Dara Singh was entrusted with the investigation and searched for the Rakesh. On 22.05.2011, investigation was transferred to Inspector Surender Singh and he arrested the accused Sachin from old bus station, Ghaziabad on 22.05.2011 and a mobile phone No. 9891417631 was recovered from his possession. Accused disclosed that he along with accused Prabha and Sachin had committed murder of Rakesh and dead body was thrown at jungle of Gopalpur and he get recovered the same. At the instance of accused Sachin, accused Sunil was arrested outside of gate of Santosh Medical College, Ghaziabad, Uttar Pradesh and he also disclosed his involvement in the murder of Rakesh. Inspector Madan Pal Bhati was given message for reaching to village Gopalpur, SC No. 2216/2016 State v. Sachin & Ors. Page No. 4 of 86 Police Station Sikandrabad along with complainant.
4. Inspector Surender Singh along with staff and accused Sachin and Sunil reached at Jungle of UPSIDC, Gopal Pur, Police Station Sikandrabad, District Bulandshahr, Uttar Pradesh. Inspector Madan Pal Bhatti along with staff and complainant reached there from where pant, shirt and shoes were recovered at the instance of accused person Sachin and Sunil, which were identified by the complainant Khadak Prasad belonging to deceased. Bones and skull etc. were also recovered from there. Panchanama was prepared.
5. On 23.05.2011, accused Prabha was arrested. On 24.05.2011, Accused Prabha got recovered a chunni, one mobile make Samsung (IMEI No. 357492032007245) and two SIM cards of Idea Company (Mobile number are 9911751609 and 8750240715 ) from his house which was used in killing the deceased. On 24.05.2011, Accused Sachin got recovered a car make Alto number UP 16 AC 1329 by handing over the key which was brought by him from his house, from the gali situated in front of his house at Sanjay Colony, Gaziabad. Accused Sunil also got recovered on the same day a motorcycle without number plate from nearby his house at Rajiv Colony, Gaziabad which was found to be of deceased whose number is DL 6S AD 1670. Socks and handkerchief of deceased were recovered from the house of accused Prabha.
SC No. 2216/2016 State v. Sachin & Ors. Page No. 5 of 86
6. After investigation, police report under section 173 of the Code of Criminal Procedure, 1973 (in short "Code") was filed against the accused Sachin, Sunil and Prabha for the offences punishable under Sections 120B, 201, 302 and 328 IPC before the learned Metropolitan Magistrate. And thereafter, the case was committed to the Court of Session by the learned Metropolitan Magistrate on 13.09.2011. On 27.09.2011, the case was received by way of assignment by my learned Predecessor.
7. Charge was framed against the accused persons for the offences punishable under section 120B, 201, 302 and 328 IPC vide order dated 11.01.2012.
8. The prosecution examined thirty eight witnesses, namely, Sub Inspector Hira Singh (PW-1), Balram (PW-2), Khadak Prasad (PW-3), Dharmi (PW-4), Karamvir Singh (PW-5), Rajvir Singh (PW-6), Rati Ram (PW-7), Mamta (PW-8), Constable Ajay (PW-9), Head Constable Shyam Lal (PW-10), Constable Gajender (PW-11), Woman/Constable Shakuntala (PW-12), Constable Kiran Pal (PW-13), Head Constable Satya Narayan (PW-14), Head Constable Kanwar Singh (PW-15), Head Constable Girish Kumar (PW-16), Constable Yogender Singh (PW17), Constable Amrendra Pratap Singh (PW-18), Pawan Singh (PW-19), Constable Surender Kumar (PW-20), Sub Inspector Jitender (PW-21), Deepak (PW-22), Sub Inspector Dirender Singh (PW-23), Anuj Bhatia (PW-24), Dr. Sachin Kumar (PW-25), Chander Seikhar SC No. 2216/2016 State v. Sachin & Ors. Page No. 6 of 86 (PW-26), Assistant Sub Inspector Prem Chand (PW-27), Pratap Singh (PW-28), Head Constable Rajbir Singh (PW-29), Sub Inspector Dara Singh (PW-30), Inspector vipin Kumar sharma (PW-31), Sub Inspector Manish Kumar (PW-32), Inspector Mahesh Kumar (PW-33), Inspector Surender Singh (PW-34), Shashi Bala (PW-35), Inspector Madan Pal Bhati (PW-36), Head Constable Hari Singh (PW-37) and Constable Ravindra Kumar (PW-38) whereafter, the statement of the accused Prabha was recorded under section 313 of the Code on 09.12.2015 and further on 10.12.2015. The statements of the accused Sachin Kumar and Sunil were recorded under section 313 of the Code on 02.01.2016. All of them stood by their denial in their said statements. The accused persons examined no witness in their defence.
9. Shri Nischal Singh, learned Additional Public Prosecutor has submitted that prosecution has examined thirty eight witnesses and they have fully supported the case of prosecution and, therefore, all three accused persons may be convicted of the charges.
10. On the other hand, Ms. Joshini Tuli, learned counsel appearing for the accused Prabha has submitted that case is based on the circumstantial evidence because there is no eye witness of occurrence. PW-9 admitted in his cross examination that the chunni was not recovered in his presence from accused Prabha. PW-12 stated that accused Prabha brought out one chunni of cream colour, whereas as per the seizure memo Ex.PW-12/A, colour of chunni was SC No. 2216/2016 State v. Sachin & Ors. Page No. 7 of 86 light pink. PW-36 has stated in his cross examination that the room where Prabha was found, was not locked but was already open; that such chunni is easily available in the market; he did not obtain the ownership documents of the mobile phone recovered from the accused Prabha. As per story of prosecution, accused Prabha was having mobile phone number 9911751609 and she was in continuous touch with co-accused Sachin on his mobile phone. Whereas said mobile number was registered in the name of Varun Kumar and he was not examined by the prosecution. Accused Prabha was having another mobile phone number 8750240715 as per further story of prosecution, but said number was registered the name of Beni Singh and he was also not examined by the prosecution. Name of accused Prabha was added later on. Recovery of chunni from the accused Prabha is not legal and recovery has been vitiated as per Section 27 of the Indian Evidence Act.
11. Shri Raj Pal Kasana, learned counsel appearing for the accused Sachin has submitted that there is no eye witness of the incident alleged and the prosecution has been failed to prove the cause, date and time of death of deceased Rakesh. The prosecution has also failed to prove the blood relation of the deceased with his wife (accused Prabha). There is no single evidence to prove the illicit relationship between accused Prabha and Sachin. The motive of accused Sachin has not been proved The recovery are itself vitiated as it was not on the instance of accused Sachin and Sunil and same SC No. 2216/2016 State v. Sachin & Ors. Page No. 8 of 86 was previously known to the police officers. The independent witnesses have not supported the version of the prosecution. The name of accused was not mentioned in the complainant dated 08.05.2011 vide DD No.32A. The name of accused Sachin was mentioned in the FIR at the instance of police officers. No site plan regarding the place of arrest of accused Sachin was prepared. The prosecution has failed to examine the real owner of the mobile numbers which were stated to have been recovered from the possession of accused Prabha and therefore, it has not been established that said two phone numbers were used to accused Prabha. The FSL report is itself doubtful and the prosecution has failed to prove as to which report is authentic, therefore, the relevancy of the sources sent to FSL for DNA report is itself doubtful. There are several contradictions in the testimony of many prosecution witnesses. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have not been proved. The chain of the evidence led by the prosecution is not complete and therefore, case has not been proved beyond reasonable doubt.
12. Shri Sandeep Sehgal, learned counsel appearing for the accused Sunil has submitted that PW-5, 6 and 7 have not identified the accused Sunil. The circumstantial evidence must be fully complete and proved. The accused was neither in the car nor in the site nor identified by the villagers of village Gopalpur. There are two DNA reports which are contradictory and therefore, same cannot be relied SC No. 2216/2016 State v. Sachin & Ors. Page No. 9 of 86 upon and the report which is in favour of the accused will be taken into consideration.
13. Accused in her statement under Section 313 of the Code has admitted several facts including that she was married to deceased Rakesh on 11.12.2008; that deceased visited her house on 04.05.2011 and 06.05.2011; that PW-3 Khadak Prasad, father of the deceased, received a call on 04.05.2011 from her father who requested to send deceased to his house as he was going to attend marriage at Jhansi and his son had gone to Rajasthan to attend some other marriage and she (accused Prabha) and Mamta (PW-8) were alone at the house, so Khadak Prasad sent deceased to her house in the evening of 04.05.2011; that deceased had come to her house on a motorcycle in the evening on 06.05.2011 at about 8:00 or 8:15 p.m.; that Balram called his brother, deceased Rakesh, in the morning of 07.05.2011 but there was no response from the mobile phone of Rakesh and it was found switched off; that said Balram tried to contact deceased again and again but there was no response from his mobile phone and when Balram at about 8:00 am, enquired from her (Accused Prabha) about the deceased, she told him that he had already left the house at about 6:00 a.m.; that on 07.05.2011 at about 11:00 a.m., Khadak Prasad enquired about Rakesh from her on telephone and she told that Rakesh had left from the house at 6:00 a.m. and after making search about Rakesh in the area of Police Stations Pul Prahlad Pur, Jaitpur and Badarpur, he met her in the SC No. 2216/2016 State v. Sachin & Ors. Page No. 10 of 86 evening; that on 06.05.2011, when deceased left from his house and was going to her house, he was wearing grey colour shirt, dark grey colour pant, black colour belt and black colour shoes, and he went on Honda motorcycle bearing no. DL 6S AD 1670; that on 06.05.2011, due to fear, she called deceased at her house in the evening to sleep there and Mamta was staying in her house at that time; that deceased came on a motorcycle in her house who was served cold drink Mirinda with lemon juice by her; that PW-8 Mamta enquired from her why she mixed lemon juice in Mirinda and then she replied that it was too hot so she mixed the lemon juice in the Mirinda; that Mamta was also served cold drink and she felt giddiness after consuming it and she explained to her that she was feeling giddiness as she was on fast on previous date and should not worry; that Mamta went to sleep at about 10:00 p.m. or 10:30 p.m. in the room which was in the side of the main gate and she left deceased with her (accused Prabha) in the other room, and on next morning, at about 7:00 a.m., she did not find deceased in the room and on enquiry by her to accused Prabha, she was replied by her that deceased had already gone; that she found handkerchief and socks there and on enquiry by her from accused Prabha in this regard, she replied her that these handkerchief and socks were dirty and were to be washed; that on 21.05.2011, Investigating Officer with Constable Ajay, Constable Gajender, Constable Shakuntala and Constable Kiran Pal reached at her House Number 401, Om Nagar, Village Meethapur and she was arrested and personal search was conducted.
SC No. 2216/2016 State v. Sachin & Ors. Page No. 11 of 86 Marriage of the deceased Rakesh with the accused Prabha
14.. PW-2 Balram who is real elder brother of deceased testified that deceased was married with accused Prabha on 11.12.2008. PW-3 Khadag Prasad who is father of the deceased also testified that deceased was married on 11.12.2008 with accused Prabha. PW-4 Smt. Dharmi who is mother of deceased has also corroborated the version of PW-2 and PW-3 with regard to marriage of deceased with accused Prabha. PW-8 Mamta has also corroborated the version of PW-2, PW-3 and PW-4 with regard to marriage of the deceased with accused Prabha. Accused Prabha in her statement under Section 313 of the Code, has admitted that she was married to deceased Rakesh on 11.12.2008. From the testimony of PW-2, PW-3, PW-4 and PW-8 and statement of accused Prabha under Section 313 of the Code, it is proved that deceased was married with accused Prabha on 11.12.2008.
Visit of deceased at the house of the accused Prabha on a motorcycle bearing no. DL 6S AD 1670
15. PW-2 Balram, brother of deceased Rakesh, testified that on 06.05.2011 his brother Rakesh went to Prabha at her parents house on a motorcycle bearing number DL 6S AD 1670 after informing him. He further testified that he contacted Rakesh on phone at about 9:30 SC No. 2216/2016 State v. Sachin & Ors. Page No. 12 of 86 p.m. on his phone number 9873813447 and then Rakesh confirmed that he had reached the house of the accused Prabha. PW-3 Khadak Prasad, father of the deceased Rakesh, has testified that on 06.05.2011, he received telephone call from accused Prabha at about 4:00 p.m. on his mobile requesting him to send the deceased to her house in that night as she was scared in the absence of male members. In the evening at 8:00-8:15 p.m., he sent deceased to accused Prabha and deceased went there at about 8:00 p.m. on motorcycle. On 06.05.2011, when deceased left their house for the house of the accused Prabha, he was wearing a grey colour (sleti) shirt and dark grey colour pant, and he was having a belt of black colour and black colour shoes. The motorcycle of Rakesh was Stunner Honda bearing number DL 6S AD 1670. PW-8 Mamta testified that on 06.05.2011, accused Prabha called deceased in the evening to sleep there as she had feared. She (Mamta) was also staying with Prabha at her father's house at that time. The parents of Prabha had gone to native village to attend a marriage and similarly, brothers ot the Pabha were also out of Delhi at that time. Deceased came there on the bike in the night. Hence PW-2, PW-3 and PW-8 have clearly deposed regarding calling deceased by accused Prabha at her house at Meethapur and reaching the deceased at said house on motorcycle Stunner Honda at about 08:00-08:15 p.m on 06.05.2011.
16. Accused Prabha in her statement under Section 313 of the Code SC No. 2216/2016 State v. Sachin & Ors. Page No. 13 of 86 has admitted also that deceased had visited her house on 06.05.2011 at about 08:00-08:15 p.m. on a motorcycle bearing number DL 6S AD 1670 and also visited on 04.05.2011; that on 06.05.2011, when deceased left from his house and was going to her house, he was wearing grey colour shirt, dark grey colour pant, black colour belt and black colour shoes.
17. From the above mentioned testimony of PW-2, PW-3, PW-8 and admission of accused Prabha in her statement under Section 313 of the Code, it has been proved on record that deceased reached at the house of the accused Prabha i.e. House Number B-401, Gali Number 9, Om Nagar, Meethapur, New Delhi on 06.05.2011 at about 08:00- 08:15 p.m. on a motorcycle bearing number DL 6S AD 1670 and he was wearing grey colour shirt, dark grey colour pant, black colour belt and black colour shoes at that time.
Serving of cold drink Mirinda to deceased by accused Prabha on 06.05.2011 at her house
18. In this regard, testimony of PW-8 Mamta and statement of accused Prabha under Section 313 of the Code are the relevant. PW- 8 Mamta testified, interalia, that on 06.05.2011, accused Prabha served deceased a cold drink Mirinda after mixing lemon juice in it at her home at Meethapur and when she enquired from accused Prabha regarding cause of mixing lemon juice in cold drink, she replied that as SC No. 2216/2016 State v. Sachin & Ors. Page No. 14 of 86 it was too hot, she mixed up lemon juice in Mirinda. Apart Rakesh, she (Mamta) was also served with same cold drink and she felt giddiness after consuming it. In this regard, accused Prabha explained her that as she (Mamta) was on fast on previous day, hence, she was feeling giddiness and need not to worry. After that, they all took their meals and she (Mamta) went to sleep at about 10:00-10:30 p.m. in a room which was in the side of main gate and she left accused Prabha and deceased in other room of the house of accused Prabha.
19. Accused Prabha in her statement under Section 313 of the Code has admitted that when Mamta enquired from her regarding cause of mixing lemon in Mirinda, she replied that it was too hot, so she mixed lemon juice in Mirinda; that Mamta was also served with cold drink and she felt giddiness after consuming it and she explained her that she was feeling giddiness as she was on fast on previous day and need not to worry; that Mamta went to sleep at about 10.00 or 10.30 p.m. in the room which was in side of main gate and she left her with deceased in the other room.
20. From the abovementioned testimony of Mamta and admission of accused Prabha under Section 313 of the Code, it has been proved on record that on 06.05.2011, accused Prabha served cold drink Mirinda to deceased and Mamta after mixing lemon juice in it at her house and after consuming it, Mamta felt giddiness and when she asked about the cause of mixing lemon juice in the Mirinda, accused SC No. 2216/2016 State v. Sachin & Ors. Page No. 15 of 86 Prabha explained/replied her that it was too hot, so she mixed lemon juice in the Mirinda and further that she felt giddiness as on previous day, she was on fast and need not to worry.
Reporting the matter to the police
21. PW-3 Khadak Prasad has deposed in this regard that he had gone out of his house for some work and when he returned at about 11:00 a.m. on 07.05.2011, he enquired about deceased. He contacted accused Prabha on phone. She gave reply that deceased had left at about 06:00 a.m.. He left for Meethapur and searched deceased on the way. He went to Police Stations Prahlad Pur, Badarpur and Jaitpur but no unusual incident was told by them. In the evening, he went to the house of accused Prabha and enquired about Rakesh from her. She as well as Mamta (PW-8) gave same reply. She also disclosed that deceased was insisting to go in the night itself but she stopped her by bringing out keys of motorcycle. He reported the matter in police station Jaitpur on 08.05.2011 vide his complaint Ex. PW1/A (DD No. 32 A). PW-1 Sub Inspector Hira Singh who was duty officer on 08.05.2011 at police station Jaitpur has deposed that Khadak Prasad came to him at 07:30 p.m. on 08.05.2011 and he gave his statement about missing of his son Rakesh (deceased) and said information was recorded vide Ex. PW-1/A. PW-21 Sub Inspector Jitender in this regard deposed that on 08.05.2011, copy of DD No. 32 A was handed over to him by duty officer and he telecasted the information about the SC No. 2216/2016 State v. Sachin & Ors. Page No. 16 of 86 missing of victim (deceased). He collected call details of telephone belonging to accused Prabha from the office of ACP.
22. PW-3 Khadak Prasad has deposed further in this regard that he again made a complaint to the police vide Ex. PW-3/A. PW-21 Sub Inspector Jitender has deposed in this regard that on 21.05.2011, complainant Khadak Prasad came to police station and he recorded his statement vide Ex. PW-3/A and made endorsement Ex. PW-21/A on it, on the basis of which FIR was registered. PW-1, duty officer, has also deposed that on 21/05/2011 at about 04:10 p.m. PW- 21 gave him a rukka, on the basis of which, he recorded the FIR No. 134/11 (Ex. PW-1/B) and copy of same was given to Sub Inspector Dara Singh (PW-30). He also made his endorsement (Ex.PW-1/C). PW-30 Sub Inspector Dara Singh has deposed that on 21.05.2011 Complainant (PW-3) came to police station Jaitpur and gave statement to PW-21 and FIR was registered on that statement and further investigation was assigned to him and after interrogation the complainant, further investigation was taken by the SHO.
23. Hence, from the testimony of PW-1, PW-3, PW-21, PW-30, it has been proved that on 08.05.2011 matter regarding missing of deceased was reported to the police station Jaitpur by PW-3 vide Ex. PW-1/A and on 21.05.2011 further complaint/statement (Ex.PW-3/A) was made by PW-3 and FIR (Ex. PW-1/B) was registered in police station Jaitpur.
SC No. 2216/2016 State v. Sachin & Ors. Page No. 17 of 86 Arrest of accused Sachin and Sunil, their disclosure statements and recovery of wearing paint along with belt, shirt, shoes of the deceased and the parts of his dead body i.e. skull, bones etc at their instance
24. In respect of arrest of the accused Sachin, testimony of PW-34 Inspector Surender Singh, PW-2 Balram, PW-9 Constable Ajay, PW- 11 Constable Gajender Pal Sing, PW-12 Woman Constable Shakuntala, PW-13 Constable Kiran Pal and PW-21 Sub Inspector Jitender are to be considered.
25. PW-34 Inspector Surender Singh was posted as Station House Officer at police station Jaitpur on 22.05.2011 and on that day, investigation of the case was took over by him from Sub Inspector Dara Singh (PW-30). He testified that he analyzed all the call detail records which were collected by Sub Inspector Dara Singh and found that there were calls made by the mobile phone number 9911751609 owned by accused Prabha, wife of the deceased, to another mobile phone number of accused Sachin. He searched the Sachin at his address at Sanjay Colony, Ghaziabad but he was not available there. He left Assistant Sub Inspector Raj Pal and Constable/Driver Jagat at Aarthala, Ghaziabad to develop the secret information regarding accused Sachin. After receiving the secret information, he went to Aarthala, Ghaziabad with staff in a private vehicle and he met SC No. 2216/2016 State v. Sachin & Ors. Page No. 18 of 86 Assistant Sub Inspector Raj Pal and Constable Jagat and they informed him that Sachin had gone to Santosh Hospital to meet someone. He along with Assistant Sub Inspector Raj Pal, Sub Inspector Jitender, complainant and other police staff went towards Santosh Hospital and when they reached near the bus station, Santosh Hospital, Ghaziabad. They apprehended the accused Sachin at the instance of the complainant and he interrogated him and he confessed about his involvement in this case. He arrested him vide Ex.PW-11/A and his personal search was taken vide Ex.PW-11/D and one mobile phone with a SIM was recovered from his possession and same was seized vide seizure memo Ex.PW-21/B wherein he mentioned all the particulars of the mobile phone i.e., make, IMEI number, mobile number 9891417631 and service provider name i.e., Idea in detail. He recorded his disclosure statement vide Ex.PW-2/A.
26. He further testified that after sometime Inspector Madan Pal Bhati (PW-36) also joined the investigation with him. They apprehended accused Sunil near bus station at the instance of accused Sachin. Accused Sunil was arrested by him vide Ex.PW- 11/C. His personal search was taken vide Ex.PW-11/D. He also interrogated accused Sunil and he confessed his involvement in this case and he recorded his disclosure statement vide Ex.PW-2/B.
27. PW-2 Balram, brother of deceased, has corroborated the version of PW-34 in respect of recording of disclosure statement of SC No. 2216/2016 State v. Sachin & Ors. Page No. 19 of 86 accused Sachin and Sunil on 22.05.2011. PW-11 Constable Gajender Pal Singh, PW-14 Head Constable Satya Narayan and PW-21 Sub Inspector Jitender also corroborated the version of PW-34 with regard to arrest, personal search, disclosure statements of accused Sachin and Sunil on 22.05.2011 and recovery of one mobile phone from the accused Sachin. I find one contradiction in testimony of PW-34 and PW-11, PW-14 and PW-21 which is that as per PW-34, the accused Sachin was arrested at the instance of complainant, whereas as per PW-11, PW-14 and PW-21, he was apprehended at the instance of secret informer. All these police witnesses i.e. PW-11, PW-14, PW-21 and PW-34 have deposed that they went to arrest the accused on the receiving secret information regarding presence of accused Sachin at Santosh Medical Hospital. Hence said contradiction is not material. PW-3, father of deceased has also corroborated the version of PW-34 in respect of arrest of accused Sachin and his disclosure statement. PW-21 in his cross-examination has deposed that after hearing the death of his son, complainant felt uneasiness.
28. Nothing has been come against the case of prosecution in the cross examination of PW-2, PW-3, PW-11, PW-14, PW-21 and PW-34 with regard to arrest and disclosure statement of accused Sachin and Sunil. Hence it has been proved that accused Sachin was arrested near the bus station, Santosh Hospital, Ghaziabad vide arrest memo Ex.PW-11/A and his disclosure statement was recorded vide Ex. PW- 2/A and one mobile phone Make LG having mobile number SC No. 2216/2016 State v. Sachin & Ors. Page No. 20 of 86 9891417631 (Ex.P-8) was recovered from his possession. Further it has been proved that accused Sunil was arrested at out side gate of Santosh Medical College vide arrest memo Ex. PW-11/C and his disclosure statement was recorded vide Ex. PW-2/B.
29. Now evidence regarding recovery at the instance of accused Sachin and Sunil from the jungle of village Gopalpur, Sikandrabad, Bulandshahr Uttar Pradesh are to be appreciated. PW-36 Inspector Madan Lal Bhatti has testified in this regard that on 25.05.2011, he was posted at Police Station Jaitpur as Inspector Investigation and he was informed by Inspector Surender from Jokhabad, Bulandshahr to come there with complainant Khadak Prasad. He called complainant. He along with his son Balram came in the police station then he along with them and Constable Kiran Pal (PW-13) and Virender left the police station at about 04:00 p.m. to go to Jokhabad and they reached there at about 06:45 p.m. and met Inspector Surender Yadav (PW-34) and other staff. Accused Sachin and Sunil were in the custody of Inspector Surender Yadav and his staff. Incharge of Police Post Jokhabad was also present there. The accused persons took the police party to the place of incident near Gopalpur Village near U.P.S.I.D.C. jungle where the accused persons pointed out the place where the dead body of deceased was thrown. Some bones of human skeleton, some clothes i.e. shirt, pant and shoes were found at the spot in scattered condition. Some public persons were collected there seeing police party and accused. Complainant Khadak Prasad SC No. 2216/2016 State v. Sachin & Ors. Page No. 21 of 86 identified shirt, pant and shoes as of his son (deceased). The Panchanama was drawn and the clothes, skeleton, bones and shoes were seized by the police officials of police station Sikandrabad. He picked up earth control from two points at the spot and sealed in two separate boxes with the seal of 'MP' and seizure memo Ex. PW-13/A was prepared. Seal after use was given to Constable Kiran Pal (PW-
13). The inquest proceedings were carried by the police officials of police station Sikandrabad who deposited the pulandas in their malkhana. The inquest papers were also prepared. Inspector Surender Yadav (PW-34) prepared site plan of the spot and the spot was also got videographed. They left the spot at about 9:00 p.m..
30. PW-36 has not mentioned correct date of going/reaching to Jokhabad, Bulandshahr in his examination-in-chief. But in his cross- examination done by accused Sunil, he has corrected the said mistake of date stating that the date mentioned in chief as 25.05.2011 was not correct in fact it was 22.05.2011 when he was informed by Inspector Surender (PW-34) to come to Jokhabad. The date of receiving of information and reaching to Jokhabad are the same. He stated in the cross-examination by accused Sachin that the shirt lying in an open place at the spot and not hidden under any bush or grass; that the shirt and pant were of grey colour; the shoes were of leather and were not having any cut marks on them; that they were about eleven police officials, two drivers, complainant Khadak Prasad and his son Balram at the spot at that time; Inspector Surender had gone SC No. 2216/2016 State v. Sachin & Ors. Page No. 22 of 86 to the spot in a private Qualis car and he had also gone there in Qualis car; He had received telephone call from Inspector Surender at about 02:30 p.m. while he was in police station and he immediately called complainant to come in police station Jaitpur and complainant along with his son arrived there at about 04:00 p.m..
31. PW-13 Constable Kiran Pal also went to jungle of village Gopalpur with the PW-36. He has corroborated the version of PW-36 stating that on 22.05.2011 he was posted in the police station Jaitpur and on that day, she along with Inspector Madan Pal Bhatti (PW-36) and Khadak Prasad (PW-3) went in the jungle near village Gopal Ganj, Sikandrabad, Uttar Pradesh. Station house officer Inspector Surender Singh (PW-34) along with staff met them there. One shirt, one pant and pair of shoes and bones were lying in bushes. Khadak Prasad identified those clothes and shoes as belonging to his son (deceased). He also deposed regarding presence of Uttar Pradesh Police Officials, accused Sachin and Sunil, preparing a panchnama, seizing of the articles, picking earth sample from two places and sealing the same.
32. PW-2 Balram also corroborated the testimony of PW-36 testifying that on 22.05.2011, he went to Police Station Jaitpur and his father met him there. They went to Bhopalpur (Gopalpur), Sikandrabad in search of deceased along with police. Accused Sachin and Sunil met them there in the fields. Wearing cloths ie., shirt of grey SC No. 2216/2016 State v. Sachin & Ors. Page No. 23 of 86 colour having some prints like on stars on it, pant of dark grey colour, belt (black material) and shoes of black colour made of some substance like leather were recovered from those fields which he identified as belonging to deceased. One skull, jaws and some bones were also lying there. All these were seized by the police. A panchanama Ex.PW-2/C was prepared by the Uttar Pradesh Police which was signed by him and his father. Police did videography at the time of recovery of said articles. Police also picked up earth control form the spot. Some villagers also joined them at that time.
33. PW-2 in cross-examination stated that there was no crop grown in the area but there was only grass in the fields. He denied the suggestion that nothing was recovered from there; that police did not seize any cloth or human jaw etc. before him.
34. PW-3 Khadak Prasad has also corroborated the version of PW- 36 stating that on 22.05.2011 at about 04:30 p.m., he was joined by Inspector Bhati in further investigation and he along with police went to Bhopal Nagar (gopalpur), Sikandrabad. Police on pointing out a place by accused Sachin and Sunil, prepared pointing out memo Ex.PW-3/B signed by him. A one arm of shirt and a piece of shoes were lying there. Other piece of shoes was found lying in a drain (nali) near that spot. At some distance, a shirt was lying and near that pant was found lying. All these were belonging to his son (deceased). Jaw of a human body, one skull and some bones were found lying there.
SC No. 2216/2016 State v. Sachin & Ors. Page No. 24 of 86 Uttar Pradesh Police seized all these articles and kept in a bag. All these proceeding was videographed. Panchanama Ex.PW-2/C bearing his signature at point B was prepared by Uttar Pradesh Police. Inspector Bhati seized earth sample from that spot which was kept in a small container.
35. He stated in cross-examination that they went in Qualis car and his son Balram was with him at that time. some police persons as well as some villagers were already present there. All the articles were lying within a radius of 100-150 feet.
36. PW-34 Inspector Surender Yadav has deposed that on 22.05.2011, he alongwith Sub Inspector Jitendra (PW-21), Head Constable Sat Narayan (PW-14) and Constable Gajendra (PW-11) along with accused Sachin and Sunil (both accused in custody) reached at Sikandrabad, opposite police post Jokhrabad near Gopalpur. Inspector Madan Pal Bhati (PW-36) along with Constable Kiran (PW-13), Constable Bijender, Khadak Prasad (PW-3) and his son Balram (PW-2) reached there and they also joined them. Local police was also informed and Sub Inspector Dhirender (PW-23) with staff joined them. Thereafter, at the instance of accused Sachin and Sunil reached at Jungle of Village Gopalpur, UPSIDC and pointed out the place where accused persons thrown out by the accused persons was found foil smelling and the grass of the place was found unusual. In the meantime, some villagers were also gathered there. At the SC No. 2216/2016 State v. Sachin & Ors. Page No. 25 of 86 instance of accused persons pointing out memo Ex.PW-3/B was prepared which bears his signature at point "D" and accused Sachin bears his signature at point "E". On 22.05.2011 while accused persons where in police custody printing out memo was prepared. One pain of deceased with black belt were lying there. One black shoe was also lying there. On the search of nearby place at the instance of accused person one another shoe, shirt and bones (including skull and jaw) of the deceased were recovered at the instance of accused persons. The clothes and shoes were identified by the complainant Khadak Prasad and his son Balram who were also present there. The panchanama was prepared by UP Police they were also present there with villagers. The panchanama is already Ex.PW- 2/C. Inspector/Madan Pal Bhati took earth control and soil from spot where the dead body was thrown. Both were put in the small plastic container and sealed with the seal of MP. The same was seized vide seizure memo already Ex.PW-13/A. The videography was also done. He prepared side plan which is Ex. PW-11/DB. He identified shirt (Ex.P-1), pant (Ex.P-2), belt (Ex.P-3) and shoes (Ex.P-4). He stated that bones (lower jaw, femer, ribs, skull and upper jaw) are Ex. PW- 34/P-18.
37. He was cross-examined by the accused persons but nothing has been come against the case of prosecution. He denied the suggestion put by learned counsel of the accused Sachin that he never visited Sikandarabad for investigation of this case; that nothing SC No. 2216/2016 State v. Sachin & Ors. Page No. 26 of 86 incriminating was recovered from the accused persons; that innocent persons have been falsely implicated to work out the case due to pressure from higher officials. He clarified that the recovered articles were not visible from the motorable road and said articles were covered under grass. He further stated that there was no electricity light at the spot, however, there were electricity polls. He further stated that there were long grass (kans) at the spot. He also stated that the recovered case property was transported by Uttar Pradesh Police after conducting panchanama. He stated that his team went there in private Qualis car. He stated that at first, his team reached at the spot at the instance of accused persons as they were in their custody and soon thereafter second team arrived there. One sub inspector and two constables from Uttar Pradesh Police reached at the spot on motorcycle.
38. PW-34 in cross-examination on behalf of accused Sunil stated that at Jokhabad, Sikandrabad, he informed the local police and he also joined the police officials of police post Jokhabad in the investigation namely, Sub Inspector Dhirender Pratap Singh, Constable Amrender and Constable Yoginder. He further stated that since father and brother of deceased were with them, they identified the clothes, shoes and belt of deceased.
39. PW-11 Constable Gajender testified in this regard that on 22.05.2011 accused Sachin and Sunil led them i.e. he himself, SC No. 2216/2016 State v. Sachin & Ors. Page No. 27 of 86 Inspector Surender Yadav (PW-34), Head Constable Satya Narayan (PW-14), complainant (PW-3) and other police persons, to a place, Village Gopalpur, Police Station Sikandrabad, Bulandshahr and they pointed out a place. Some human bones, clothes, a pair of shoes were found lying there. Investigating officer called local police and thereafter panchanama was prepared. Investigating Officer seized said articles. Seizure memo was prepared in this regard. Photographer who was with them, took photos and did videography of the event. They went to Police Station Sikandrabad. Case property was deposited there.
40. PW-14 Head Constable Satya Narayan deposed in this regard that on 22.05.2011 both of accused (accused Sachin and Sunil) led them to Gopalpur Village, Sikandrabad, near Bulandshahr, U.P. The accused pointed out a place i.e. bushes in outer side of village Gopalpur. They searched for the dead body, one pair of black shoes, one pant along with belt, one shirt and skeleton along with skull were found lying scattered near that place. A videographer was with them who videographed the same. Investigating Officer called local police and Sub Inspector Virender along with three-four other police persons came there from local police station. Inspector Madan Pal Bhati, Constable Kiran Pal, Constable Virender, Khadak Pratap Singh were also with them. Complainant Khadak Pratap Singh identified wearing clothes and shoes belonging to deceased. Investigating Officer Inspector Madan Pal Bhati picked up earth sample from two places. A SC No. 2216/2016 State v. Sachin & Ors. Page No. 28 of 86 panchanama was prepared by Sub Inspector Dhirender Pratap (PW-
23). Investigating Officer seized skeleton and other articles found lying there and same were handed over to Sub Inspector Dhirender Pratap. They returned to Police Station Sikandrabad. DD entry was made in said police station. Case property was deposited in malkhana.
41. PW-21 Sub Inspector Jaitender testified interalia, that they along with accused Sunil and Sachin went to Sikandrabad in a private Toyota Qualis. The accused led them to a place in jungle behind a factory area situated in village Gopalpur. Both of them pointed out a place and pointing out memo Ex. PW-3/B was prepared. One pant along with belt, one shirt and a pair of shoes were lying there. Bones including one scalp and jaw were also scattered at spot. Investigating Officer gave information about all this in police post concerned. Sub Inspector Dharmender along with Constable Yoginder and Constable Amrender from that police post reached there. Sub Inspector Dharmender (IO) called some photographs who snapped photos of spot. Investigating Officer also prepared a panchanama. Inspector Surender (PW-34) asked Inspector Investigation Madan Pal Bhati (PW-36) to bring the complainant for identification of clothes of victims. The complainant was brought to spot by Inspector Madan Pal Bhati. Constable Kiran and Constable Virender were also with them. Complainant identified clothes and shoes which were found lying there as belonging to the deceased. Investigating Officer recorded statements of police persons present there. He along with Inspector SC No. 2216/2016 State v. Sachin & Ors. Page No. 29 of 86 Surender, Constable Gajender, Head Constable Satya Narayan and accused persons went to police station Sikandrabad. Investigating Officer recorded DD entry in this regard. They returned to police station Jaitpur. Both of accused were sent to hospital by Investigating Officer for their medical examination.
42. PW-5 Karamveer Singh, PW-6 Rajveer Singh and PW-7 Rati Ram are the witnesses from the said Gopalpur village. PW-5 Karamveer Singh deposed that in May, 2011 Delhi Police came to their village and he went there along with other villagers. Some two persons were in the custody of police. On the pointing of those two persons, police recovered human parts i.e. one jaw, some bones, wearing clothes which were torn including one pant of black colour, a belt tied with the pant and one piece of sport shoes (dirty colour). The photographs were taken of all this proceedings. Uttar Pradesh Police was also called at the spot. He has further testified in cross examination conducted by learned Additional Public Prosecutor that it may be true that it was 22.05.2011 when all this was happened; that it is true that father and brother of deceased had identified clothes and shoes found there as belonging to deceased; that videography of spot was also done at the time of proceedings.
43. PW-6 Rajbir Singh testified that he was working as a contractor and have some JCB earth moving machines. On 22.05.2011 between 03:00 to 05:00 p.m., police of police station Sikandrabad came near SC No. 2216/2016 State v. Sachin & Ors. Page No. 30 of 86 his house. He went there and had seen something wrapped in a cloth in the hands of police persons, several other villagers were also gathered there. On being called by the police persons present there, some other persons of Delhi Police also joined them. Police was in custody of four five accused. Police asked him to sign some papers. In cross examination conducted by learned Additional Public Prosecutor, he admitted that police had prepared seizure memo Ex. PW-2/C about seizing aforementioned articles which was signed by him; that Rati Ram of his village was also present at spot at that time.
44. Rati Ram has also been examined by the prosecution as PW-7 who testified that he is a contractor by a profession having job to lift the earth and after one year back (later on accepted the date as 22.05.2011) in the evening, when he was returning from his village Sikandrabad, he saw a large crowd of people including police persons gathering in the western side of the village. He went there. Police were having one gunny bag having wrapped something inside it. Out of said crowd, there were Rajbir, Karamavir, Singhraj and Narender from their village. On asking of the police, he signed one paper Ex.PW-2/C. The Delhi Police had taken into custody four-five persons and those persons are not present in the court. This witness has stated in his cross examination conducted by the learned Additional Public Prosecutor that he cannot say if it were accused Sachin and Sunil who were brought there at spot by Delhi Police. In said cross examination, he denied the suggestion that human skeleton, cloths, SC No. 2216/2016 State v. Sachin & Ors. Page No. 31 of 86 shoes and belt were seized by the police at the instance of the said accused; that brother and father of the deceased identified those articles as belonging to the deceased. But he admitted that Delhi Police had taken photos of spot. He in his cross-examination conducted on behalf of accused Sachin stated that document Ex.PW- 2/C was signed by him in police post Sikandrabad and same was also signed by Rajvir and Karamvir before him.
45. PW-17 Constable Yogender Singh, PW-18 Constable Amrindra Pratap Singh and PW-23 Sub Inspector Dhirender Singh are the witnesses of recovery on 22.05.2011 from the jungle of village Gopalpur, Sikandrabad, Uttar Pradesh and on said day, they were posted at Police Station Sikandrabad, District Bulandshahr Uttar Pradesh. PW-17 Constable Yogender Singh testified that on 22.05.2011, Sub Inspector Madan Lal Bhatti along with two-three Constables came to police station along with two boys namely Sachin and Sunil and there was an information about a dead body lying in jungle of Gopalpur. Sub Inspector Dhirender Pratap Singh (PW-23) and Constable Amrinder Pratap Singh (PW-18) joined them and accused led them to jungle of Gopalpur and they pointed out the place. One pant, one shirt (torn) and one human skull were found lying at that place. Family members of the deceased were present there and they identified clothes i.e. pant and shirt of deceased as belonging to him. Panchanama was prepared by the police which is Ex. PW-2/C signed by him at point C. SC No. 2216/2016 State v. Sachin & Ors. Page No. 32 of 86
46. PW-18 Constable Amrinder Pratap Singh has corroborated the version of PW-17 stating that he was patrolling the area of police station Sikandrabad, Bulandshahr on 22.05.2011 at about 07.30 p.m.. He was called by HCP Dhirendra Pratap Singh (PW-23) and asked to reach in jungle of Gopalpur. He went there and one inspector of Delhi Police along with 5-6 other police officials met him there. Some villagers were also there at spot. On pointing out of the accused Sachin and Sunil, wearing clothes, skull and some other bones belonging to Rakesh were found lying there. The father of deceased was also present at spot and he identified clothes found at spot as belonging to the deceased. From the public gathered at spot, there were one Rajvir and Karamvir. One panchanama Ex. PW-2/C was prepared bearing his signatures at point D.
47. PW-23 Sub Inspector Dhirender Singh has also corroborated version of PW-17 and PW-18 regarding coming of police team along with accused Sachin and Sunil from Delhi to him and recovery of bones, jaw, one big bone like bone of leg, two-three small bones, one shoe, one pant and one shirt from jungle beside UPSID Colony at the instance of accused Sunil and Sachin. He has also deposed that all these were kept in a plastic bag which was sealed in a pulanda with the seal of DS and seizure memo of all these articles Ex. PW-13/A was signed by him at point B and the bones were sent for postmortem report through Constable Amrinder and Constable Dhirender. He has SC No. 2216/2016 State v. Sachin & Ors. Page No. 33 of 86 also deposed regarding panchanama Ex. PW-2/C bearing his signatures at point A.
48. Hence it is clear that there were two police teams from police station Jaitpur which went to jungle of village Gopalpur, Sikandrabad, District Bulandshahr, Uttar Pradesh. One team was headed by Inspector Surender Singh (PW-34) and other was headed by Inspector Madan Pal Bhati (PW-36). Inspector Surender Singh along with PW-11 Constable Gajender, PW-14 Head Constable Satya Narayan and PW-21 Sub Inspector Jitender brought the accused Sachin and Sunil at jungle of village Gopalpur. And PW-36 Inspector Madan Pal Bhati along with PW-2 Balram (brother of deceased), PW- 3 Khadak Prasad (father of deceased), PW-13 Constable Kiran Pal and Constable Bijender also reached there. And further three police personal from police station Sikandrabad, District Bulandshahr namely, PW-17 Constable Yogender Singh, PW-18 Constable Amrendra Pratap Singh and PW-23 Sub Inspector Dirender Singh also reached at the said jungle of Gopalpur. Apart from above, three public witnesses from said village Gopalpur namely, PW-5 Karamvir Singh, PW-6 Rajvir Singh and PW-7 Rati Ram also reached at the said jungle of village Gopalpur. Hence fourteen witnesses have been examined by the prosecution to prove the recovery from the jungle of village Gopalpur on 22.05.2011 at about 07.00 p.m. at the instance of accused Sachin and Sunil.
SC No. 2216/2016 State v. Sachin & Ors. Page No. 34 of 86
49. Now, I want to mention the law regarding improvement, contradictions and discrepancies which may occur in the deposition of witnesses. Hon'ble Supreme Court has held in State of Madhya Pradesh v. Dal Singh & Ors., Criminal Appeal No.2303 of 2009 decided on 21.05.2013 at para no. 7:
"So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time to occurrence.
The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of a statement made by the witness at an earlier stage.
SC No. 2216/2016 State v. Sachin & Ors. Page No. 35 of 86 "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited.
50. In State Represented by Inspector of Police & another v. Saravanan, (2008) 17 SCC 587, Hon'ble Supreme Court held that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety.
51. In Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra, (2010) 13 SCC 657, while dealing with the issue of material contradictions, the Hon'ble Supreme Court held that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially alter the trial; minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety; the courts have to label the category to which a discrepancy belongs, while normal discrepancy do not corrode the credibility of a party's case, material SC No. 2216/2016 State v. Sachin & Ors. Page No. 36 of 86 discrepancy do so.
52. Recently, in Mukesh & Anr. v. State for NCT of Delhi & Ors., Criminal Appeal Nos. 607-608 of 2017 decided on 05.05.2017, Hon'ble Supreme Court has referred the above-mentioned cases i.e. Saravanan (supra) and Sunil Kumar Sambhudayal Gupta(supra) in respect of issue pertaining to contradictions etc..
53. Hence minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Due to examination of so many witnesses to prove the said recovery, there are some contradictions/discrepancy in the deposition of said fourteen witnesses but same are of minor nature and same do not go to the root of the case of the prosecution. And further nothing material has been come in their cross-examination which goes against the case of prosecution.
54. All the above said fourteen witnesses have deposed regarding panchanama Ex.PW-2/C which goes to show that Balram (PW-2), Khadak Prasad (PW-3), Rajvir Singh (PW-6), Ratiram (PW-7) and Karamvir Singh (PW-5) were appointed as Panch. Said panchanama bears signature of all the said five panch. All five panch have deposed that they had signed the said panchanama. The date, time and place of initiation and end of enquiry, place of recovery of articles, parts of SC No. 2216/2016 State v. Sachin & Ors. Page No. 37 of 86 body like bones etc., and clothes etc. find mention in said panchanama. There is no reason to disbelieve the said testimony of said fourteen witnesses regarding recovery of bones, jaw, clothes, shoes etc. The said recovered shirt (Ex. P-1), pant (Ex. P-2), belt (Ex. P-3) and one pair shoes (Ex. P-4) were identified by father of deceased, Khadak Prasad (PW-3) and by brother of deceased, Balram (PW-2) at the spot. These four articles (Ex. P-1 to Ex. P-4), accused Sachin and Sunil were also identified during the trial by PW- 2, PW-3, PW-11, PW-14, PW-21, PW-23, PW-34 and PW-36.
55. Hon'ble Supreme Court in Bodhraj Alias Bodha and Others v. State of Jammu and Kashmir, (2002) 8 SCC 45 has observed that Section 27 of the Indian Evidence Act, 1872 is by way of proviso to Sections 25 and 26 and a statement given by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by Hon'ble Supreme Court in Delhi Administration v. Bal Krishan, (1972) 4 SCC 659 and Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under SC No. 2216/2016 State v. Sachin & Ors. Page No. 38 of 86 police influence might be induced to confess by the exercise of undo pressure. The object of provision i.e. Section 27 was to provide for the admission of evidence which were for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of the police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer, in other words, the exact information given by the accused while in custody which lead to recovery of the articles has to be proved. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of information obtained from a prisoner, such a discovery is a guarantee that information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. The "fact discovered" envisaged in section SC No. 2216/2016 State v. Sachin & Ors. Page No. 39 of 86 embraces the place from which the object was produced, the knowledge of accused as to it, but the information given must relate distinctly to the effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". Mere statement that accused led the police and the witnesses to the place where he had concealed the articles is not the indicative of the information given.
56. Recently, in Mukesh's case (supra), Hon'ble Supreme Court has referred Bal Krishan's case (supra) and Mohd. Inayatullah's case (supra) for the law pertaining to Section 27 of the Evidence Act.
57. Hence, the shirt (Ex. P-1), pant (Ex. P-2), belt (Ex. P-3) and one pair shoes (Ex. P-4) belonging to deceased, one skeleton, two big bones, one jaw and three small bones were recovered pursuant to the disclosure statement of accused Sachin and Sunil while they were in custody and therefore said recovery is admissible under section 27 of the Evidence Act.
58. Hence, from the testimony of these fourteen witnesses it has been proved that on 22.05.2011 at about 07:00/07:30 p.m., shirt (Ex. P-1), pant (Ex. P-2), belt (Ex. P-3) and one pair shoes (Ex. P-4) belonging to deceased, and bones (lower jaw, femer, ribs, skull and upper jaw) were recovered at the instance of accused Sachin and SC No. 2216/2016 State v. Sachin & Ors. Page No. 40 of 86 Sunil from the jungle of village Gopalpur, Sikandrabad, Bulandshahr, Uttar Pradesh.
Appreciation of the evidence pertaining to sending the recovered bones etc. to the FSL and result thereof
59. The bones etc. which are proved to have been recovered from the jungle of Gopalpur were seized vide seizure memo Ex.PW -13/A, were sent for postmortem report through Constable Amrender and Constable Gajinder as deposed by Sub Inspector Dhirender Singh (PW-23). Constable Amrender Pratap Singh (PW-18) has deposed in his cross-examination done by accused Sachin that he carried those bones and deposited in police post and deposited further in the malkhana of police station by him at about 09:00 p.m. on same day. He further deposed that said bones were taken to District Hospital for postmortem and deposited there on 23.05.2011 at about 01.00 p.m. and he took receipt in this regard which he handed over to MHC(M). Inspector Madan Pal Bhati (PW-36) from Delhi Police also deposed that the inquest proceedings were carried by the police officials of Police Station Sikandrabad who deposited the pullandas in their malkhana.
60. PW-32 Sub Inspector Manish Kumar and PW-15 HC Kanwar Singh who were posted in the police station Jaitpur went to police station Kotwali, Sikandrabad, Bulandshahr, UP on 25.05.2011 where SC No. 2216/2016 State v. Sachin & Ors. Page No. 41 of 86 PW-27 Assistant Sub Inspector Prem Chand, In-Charge, Malkhana met them and they collected exhibits i.e., one cloth pullanda sealed by seal of PMBSR, one cloth pullanda containing cloths and shoes, one glass jar, one vial, all sealed by same seal i.e., PMBSR from Malkhana of that police station. Same were seized by PW-32 vide seizure memo Ex.PW-3/DA. Thereafter, they returned to police station Jaitpur and deposited the said articles in the Malkhana. It is also deposed by PW-15 that case property remained intact till the same was deposited in Malkhana of police station Jaitpur. PW-27 Assistant Sub Inspector Prem Chand posted as MHC(M) on 25.05.2011 at police station Sikandrabad has also corroborated the version of PW- 15 and PW-32 regarding handing the pullandas to them by him on 25.05.2011.
61. In this regard, PW-15, PW-27 and PW-32 have not been cross examined on behalf of accused Prabha and Sunil. Only accused Sachin has cross examined the said three PWs but nothing has been come against the case of prosecution in said cross-examination. Further, PW-15 has denied the suggestion put by the accused Sachin in his cross-examination that they tempered with the case property during that period of having possession of the same. PW-27 has admitted in his cross-examination that the entry in this respect in rojnamcha register is not in his handwriting. He could not say as in whose handwriting said entry was made. But he has denied the suggestion that the said entry was manipulated in the register and that SC No. 2216/2016 State v. Sachin & Ors. Page No. 42 of 86 no such pullanda was handed over to Sub Inspector Manish Kumar. PW-32 in his cross-examination denied the suggestion that seizure memo Ex.PW-3/DA and statement of Head Constable Kanwar Singh were manipulated later on. He has also denied the suggestion that said articles were tempered in his possession.
62. Hence, from the testimony of PW-15, PW-27 and PW-32 it has been proved that PW-32 collected exhibits i.e., one cloth pullanda, one cloth pullanda containing cloths and shoes, one glass jar, one vial, all sealed by seal of PMBSR from Malkhana of police station Kotwali Sikandrabad, Bulandshahr, same were seized vide seizure memo Ex.PW-3/DA and deposited in police station Jaitpur.
63. Now testimony of PW-37 and PW-38 are required to considered. PW-37 brought the Register No.19 and Register of Road Certificate. He has deposed that as per entry No. 550 of Register No.19 on 27.10.2011, one sealed pullanda with the seal of PMBSR along with sample seal was sent FSL, Rohini through Constable Ravinder vide Road Certificate No.157/21/11 and endorsement was made at portion X to X-1 on Ex.PW-29/C. The sample was deposited by Constable Ravinder in the office of FSL and on his return, he gave him the proof of acknowledgement. The copy of Road Certificate has been marked as Ex.PW-37/A and the copy of acknowledgement as Ex.PW-37/B. In this regard, the prosecution has also examined Constable Ravinder Kumar as PW-38 who has corroborated the SC No. 2216/2016 State v. Sachin & Ors. Page No. 43 of 86 version of PW-37 regarding taking sealed pullanda with the seal of PMBSR along with sample seal and depositing the same to FSL. PW- 37 has not been cross examined on behalf of accused Prabha and Sunil but he has been cross examined on behalf of the accused Sachin but nothing against the case of prosecution has come in the said cross-examination. So far as PW-38 is concerned, he has not been cross examined by any of the accused.
64. PW-25 Dr. Sachin Kumar is Senior Resident, Babu Banarasi Das, District Hospital, Bulandshahr, Uttar Pradesh. He conducted postmortem on the dead body of Rakesh on 04.05.2011 brought by Constable Amrinder Pal. Postmortem report has been marked as Ex. PW-25/A signed by him at point A. He has further testified that no opinion about cause of death could be given as it was merely a skeleton. PW-18 Constable Amrinder Pratap Singh corroborated the testimony of PW-25 to the extent of bringing to the hospital the bones/skeleton to the District Hospital, Bulandshahr for postmortem purpose.
65. PW-31 Inspector Vipin Kumar has testified in respect of collecting the results of FSL and filing the same in the court after filing the chargesheet. His applications in respect of filing the reports in the court are Ex. PW-31/B and Ex. PW-31/B1. The reports of FSL are Ex. PW-31/C and Ex. PW-31/C1.
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66. PW-35 Ms. Shashi Bala, Senior Scientific Officer, Biology (DNA), Fingerprint, FSL Rohini, Delhi has testified that on 10.06.2011, one sealed forensic parcel and two blood samples were received in the office of FSL Rohini and on 27.04.2011, one sealed forensic parcel was received in the office of FSL Rohini and same were assigned to her for examination. She examined the above said exhibits and prepared detailed DNA Fingerprint Report, FSL 2011/DNA/3060. As per this report, no opinion was offered from her laboratory due to non amplification of DNA from the source of Exhibit-1. She further testified that report i.e. FSL 2011/DNA/6437 which also bears her signature at point A and the same is indicating that DNA profiling (STR analysis) performed on the exhibit provided is sufficient to conclude the source of Exhibit '2' (blood sample of Smt. Dharmi Bai) and Exhibit '3' (blood sample of Sh. Khadak Singh) vide FSL No. 2011/DNA-3060 are the biological mother and father of the Exhibit '1' (teeth). The reports have been marked as Ex. PW-31/C1 and Ex. PW-31/C. Forwarding letter dated 30.09.2011 has been marked as PW-35/A and other letter dated 02.01.2012 has been marked as PW-35/B both bearing signature of her Director. She has not been cross-examined by either of the accused. Learned counsel of accused Sunil has made submission in this regard that there are two opposite/contradictory report of FSL i.e. Ex PW-31/C and Ex.PW-31/C1 and therefore no report can be relied upon. This submission cannot be accepted for the reason that both the report cannot be termed as opposite/contradictory because FSL report Ex PW-31/C1 is the report of lower jaw and no opinion was SC No. 2216/2016 State v. Sachin & Ors. Page No. 45 of 86 offered in respect of 'lower jaw' from her laboratory due to non amplification of DNA from the source of Exhibit-1. The other FSL report Ex.PW-31/C is not in respect of said 'lower jaw' but same is in respect of two teeth which along with skull, two long bones and one piece of rib were separately sent later on to FSL for examination. In this regard PW -34 Inspector Surender Singh has deposed that the FSL result of DNA fingerprint was collected and filed in the court Ex. PW-31/C1 in which opinion was not explained hence sealed pullanda bones were sent to FSL for DNA fingerprint on 27.10.2011 and result was obtained which was positive and proved that bones recovered on 22.05.2011 from UPSIDC Gopalpur jungle at the instance of accused persons were of deceased because the DNA of bones were matched with the DNA of mother and father of the deceased. Hence it has been proved from this testimony and report Ex. PW-31/C that Smt. Dharmi Bai and Shri Khadak Prasad were the biological mother and father of exhibit '1' (teeth of the deceased Rakesh).
Recovery of Alto car bearing number UP 16 AC 1329 at the instance of accused Sachin and recovery of motorcycle make Honda Stunner bearing number DL 6S AD 1670 at the instance of accused Sunil.
67. In this regard, testimony of PW-9, PW-11, PW-12. PW-13 and PW-36 are important. PW-36 further testified inter alia, that then on 24.05.2011, they all i.e. Constable Gajender (PW-11), Constable Ajay SC No. 2216/2016 State v. Sachin & Ors. Page No. 46 of 86 (PW-9), Constable Kiran Pal (PW-13) and Constable Shakuntala (PW-12) along with all three accused persons (accused Sachin, Sunil and Prabha) came to near Okhla Barrage, Kalindi Kunj in search of the purse and mobile phone of deceased as disclosed by the accused persons to have thrown there. They took assistance of some swimmers of mobile phone and purse but same could not be recovered. Then the accused Sunil made a disclosure statement Ex.PW-9/C regarding motorcycle of the deceased which he had kept it in his house in Rajeev Colony, Mohan Nagar, Ghaziabad, Uttar Pradesh. It appears that disclosure statement of accused Sunil was recorded two times, first on 22.05.2011 Ex.PW-2/B and second on 24.05.2011 Ex.PW-9/C. In both the disclosure statements made by accused Sunil, he has disclosed that he could get recover the motorcycle from his house/gali at Sanjay Colony. They went to House No. 454, Gali No.3, Sanjay Colony, Mohan Nagar, Ghaziabad, Uttar Pradesh, which was a house of accused Sachin where accused Sachin pointed out the Alto Car which was used in the incident. The said car bearing number UP 16 AC 1329 was seized vide seizure memo Ex.PW-9/A bearing his signature at point C. Then they came to Rajeev Colony at House No.282 at the house of Sunil where he pointed out the motorcycle make Stunner without number plate which motorcycle the accused Sunil disclosed was belonging to deceased. He got verified the registration of the motorcycle from Traffic Control Room, Delhi and its number was found DL 6S AD 1670 and its owner was deceased. The motorcycle was seized vide seizure memo SC No. 2216/2016 State v. Sachin & Ors. Page No. 47 of 86 Ex.PW-9/B.
68. PW-9 Constable Ajay, PW-11 Constable Gajender Pal Singh, PW-12 Woman Constable Shakuntala corroborated the version of PW-36 Inspector Madan Pal Bhati with regard to recovery of said Alto Car at the instance of accused Sachin and recovery of said motorcycle at the instance of accused Sunil from the above said places and seizure memo of said Alto Car Ex.PW-9/A and seizure memo of said motorcycle Ex.PW-9/B.
69. PW-9 has been cross examined by accused Sachin and Sunil. In his cross-examination by accused Sachin in respect of said recovery from the possession of accused Sachin, he could not tell the landmark near the house of the accuse Sachin and distance between house of accused Sachin and Sunil. He could also not tell whether said houses were in same city or not. He could also not tell the direction of street before the house of accused Sachin. In said cross- examination, he clearly deposed further that accused Sachin handed over the keys of the said car to the investigating officer. He denied the suggestion that accused Sachin did not hand over any such key to the investigating officer; that all the proceedings were done on that day sitting in the police station. So far as the cross-examination of PW-9 on behalf of the accused Sunil is concerned, nothing has been come against the case of prosecution in respect of recovery of motorcycle at the instance of accused Sunil. Even no suggestion has been given to SC No. 2216/2016 State v. Sachin & Ors. Page No. 48 of 86 him on behalf of the accused Sunil that no said motorcycle was recovered at the instance of the accused Sunil. Accused Sachin and Sunil have been identified by this witness correctly during trial.
70. PW-11 in his cross-examination conducted by the accused Sachin, has reiterated that the said motorcycle was having no number plate at the time of recovery. He denied the suggestion that no such motorcycle was seized before him, hence, he could not tell the engine and the chassis number of the same or give different version about its colour. He could not remember the direction in which the said car was facing when it was seized; that whether accused handed over keys of the car to the investigating officer before him; that how said car was taken to police station; that the exact time when car was taken to police station Jaitpur. These facts are not so important in my view that are required to be state otherwise the veracity of testimony becomes doubtful. Further, this witness has described the house of the accused Sachin. He has stated in this regard that there was only entry/exit gate in the house of the accused Sachin in its front side and the doors were made of iron grills and it was a long gate but there was no gate on rear side of the house.
71. So far as cross-examination of PW-11 on behalf of the accused Sunil with regard to recovery of motorcycle is concerned, nothing material question has been put to this witness to discredit the veracity of the said witness.
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72. PW-12 Constable Shakuntala has also been cross examined on behalf of the accused Sachin with regard to recovery of Alto Car but nothing material question has been put to this witness to discredit the veracity of the said witness. The accused Sunil even not cross examined this witness.
73. PW-36 has been cross examined on behalf of accused Sachin and Sunil separately but even no question with regard to recovery of the motorcycle and the car has been put to the witness.
74. Seizure memo Ex. PW-9/A pertaining to said Alto car and seizure memo Ex. PW-9/B pertaining to said motorcycle bear signature of PW-9, PW-11 and PW-36 and said three witnesses had identified their signature at said memos. PW-9, PW-11, PW-12 and PW-36 have identified the accused Sachin and Sunil during trial. Said car and motorcycle have been recovered pursuant to disclosure statement of accused Sachin and Sunil while they were in custody and therefore recovery is admissible under section 27 of the Evidence Act.
75. Insofar as ownership of the said motorcycle number DL 6S AD 1670 is concerned, it has been deposed by PW-28 Pratap Singh, Sr. Record Incharge, Transport Authority, Sarai Kale Khan, New Delhi that said scooter make Honda was transferred in the name of deceased on SC No. 2216/2016 State v. Sachin & Ors. Page No. 50 of 86 24.07.2009. The copy of registration has been marked as Ex. PW- 28/A. Accused Prabha in her statement has not denied that said motorcycle does not belong to deceased. Hence, it has been proved that said scooter/motorcycle DL 6S AD 1670 belonging to deceased.
76. Insofar as Alto car bearing number UP 16 AC 1329 is concerned, in this regard PW-2 Balram has deposed that there was a fight took place between accused Prabha and deceased after some time of their marriage and thereafter matter was pacified in panchayat and after 6/7 days accused Prabha left in-laws house and she took away her car also which was given in the marriage. He has not been cross- examined on behalf of accused Prabha on the testimony of taking the Alto car by her after some time of her marriage with deceased. PW-3 Khadak Prasad has also deposed pertaining to taking away the said Alto car from the her house in the month of February 2010 by accused Prabha. He has stated in his cross-examination done by accused Prabha that it is true that a Alto car was given by parents of accused Prabha in the marriage. Hence, it has been proved that said Alto car which was given to deceased in the his marriage with the accused Prabha, was taken by accused Prabha from her in-laws house in the month of February 2010.
77. Hence, it has been proved from the above said deposition of PW-2, PW-3, PW-9, PW-11, PW-12, PW-28 and PW-36 that Alto car bearing number UP 16 AC 1329 belonging to accused Prabha was SC No. 2216/2016 State v. Sachin & Ors. Page No. 51 of 86 recovered from the gali which was in front of house of accused i.e. House No. 454, Gali No.3, Sanjay Colony, Mohan Nagar, Ghaziabad, Uttar Pradesh at the instance of accused accused Sachin and scooter/motorcycle make Honda bearing number DL 6S AD 1670 belonging to deceased was recovered nearby the house of accused Sunil i.e. House No. D-282, Rajeev Colony, Ghaziabad, Uttar Pradesh at his instance (accused Sunil).
Arrest of accused Prabha and recovery from her/her house
78. PW-34 Inspector Surender Singh has deposed that on 22.05.2011 investigation of the case was took over by him from PW- 30 Sub Inspector Dara Singh and then he analysed all the call detail record and found that there were calls made by the mobile number 9911751609 owned by Prabha, wife of the deceased, to another mobile phone number of Sachin. There were frequent and long calls at mobile phone number 9891417631 and location of said mobile on the intervening night of 06.05.2011 and 07.05.2011 were suspicious and were found in the area of Om Vihar, Kalindi Kunj and roaming in the western area of Uttar Pradesh. Thereafter accused Sachin and Sunil were arrested and recovery at their instance were effected.
79. PW-36 Inspector Madan Pal Bhatti testified that on 23.05.2011 he along with Head Constable Shyam Lal (PW-10) and Constable Shukantala (PW-12) reached at the house of Accused Prabha i.e. SC No. 2216/2016 State v. Sachin & Ors. Page No. 52 of 86 House No. B-401, Gali No. 09, Om Nagar, Jaitpur, New Delhi where she (accused Prabha) met them there. He made inquiry from her and arrested her in this case vide arrested memo Ex. PW-10/A and her personal search conducted through lady Constable Shakuntala vide personal search memo Ex. PW-10/B. The disclosure statement of accused Prabha was recorded vide memo Ex. PW-10/C.
80. PW-36 further testified that on 24.05.2011 he along with all the three accused persons, Constable Gajender (PW-11), Constable Ajay (PW-9), Constable Kiran Pal (PW-13) and Woman Constable Shukantala (PW-12) reached at the said house where accused Prabha produced her mobile phone make Samsung which she had been using to talk to her co-accused persons. The accused Prabha was using two mobile SIMs connections in this phone of IDEA company. He checked the numbers of both the SIMs and seized the mobile phone vide seizure memo Ex. PW-36/A and mobile phone was sealed in the pullanda by the seal of MP. The mobile phone having IMEI No.357492032007245 contained two SIM cards of Idea Cellular Company. The mobile phone has been marked as Ex.P8 and SIM cards as Ex.P8/1 and Ex.P8/2.
81. He further testified that Accused Prabha also produced a chunni which was used for strangulation the deceased by the accused persons. The chunni was of white rose colour which was some what of cream colour. The chunni was sealed in a pullanda with the seal of MP SC No. 2216/2016 State v. Sachin & Ors. Page No. 53 of 86 and the seal after use was given to Women Constable Shakuntal. He prepared seizure memo Ex. PW-12/A (wrongly written as Ex. PW- 12/DA). He also prepared site plan of house of accused Prabha of the place of recovery which is Ex. PW-36/B.
82. He in cross-examination conducted by the learned counsel of accused Prabha, has stated that at the time of recovery of chunni, only he himself, Constable Shakuntala and accused Prabha were in the room from where chunni was recovered and other police officials were outside of the room; that he did not obtain the ownership documents of the Samsung mobile phone which was recovered from accused Prabha; that he did not check whether the SIM cards of Idea Company found in the said mobile were belonging to one Varun Kumar S/o Anil Kumar R/o Palwal, Faridabad and other one was belonging to Beni Singh S/o Rethu Singh R/o Saharanpur, Uttar Pradesh. He denied the suggestion that he did not recover any mobile phone with SIM cards from the accused Prabha. In cross-examination conducted on behalf of the accused Prabha pertaining to chunni, he has stated that it was 11. 30 a.m. to 12.00 noon when the chunni was recovered from a bed lying in the room and the room where Prabha was found, was already opened and the said house had five rooms and one of the said room Prabha was found in. It is further stated in said cross-examination that such like chunnies are easily available in the market and recovery of chunni was effected after about 17 days of the incident. He has denied the suggestion that no such chunni was SC No. 2216/2016 State v. Sachin & Ors. Page No. 54 of 86 recovered from the said room or that same was planted on the accused Prabha to implicate her.
83. PW-10 Head Constable Shyam Lal and PW-12 Woman Constable Shakuntala have corroborated the version of PW-36 with regard to going at house of accused Prabha, arrest and personal search of accused Prabha from there on 23.05.2011.
84. PW-9 Constable Ajay and PW-11 have corroborated the testimony of PW-36 with regard to going to the house of accused Prabha on 24.05.2011, but nothing have been stated pertaining to recovery of mobile phone and two SIM cards and chunni. PW-13 Constable Kiran Pal have stated nothing pertaining to recovery of mobile phone and two SIM cards and chunni on 24.05.2011.
85. PW-12 Woman Constable Shakuntala corroborated the testimony of PW-36 with regard to going to the house of accused Prabha on 24.05.201, bringing out chunni of cream colour, handing over one mobile and two SIM cards, seizing and sealing the same. In cross-examination conducted by the accused Prabha, nothing has been come against the case of prosecution in respect of recovery of chunni and mobile phone along with two SIM cards from the house of the accused Prabha. In cross-examination conducted by the accused Sachin, she denied the suggestion that two chunnies were recovered on that day and one was of light pink colour and other was of cream SC No. 2216/2016 State v. Sachin & Ors. Page No. 55 of 86 colour. By putting this suggestion on behalf of accused Sachin, it is admitted by him that police team went to house of accused Prabha and recovery of one or two chunni was effected from there. PW-36 and PW-12 have deposed regarding recovery of a mobile phone make Samsung with two SIM card of Idea Company. In their cross- examination nothing have been come against the case of prosecution. PW-36 has clarified that at the time of recovery of chunni from the room of accused Prabha, only he himself, Constable Shakuntala and accused Prabha were present in said room. PW-36 has identified mobile phone as Ex. P8 and two SIM card as Ex. P8/1 and Ex. P8/2 during trial. Hence from the testimony of PW-12 and PW-36 it has been proved that a mobile phone make Samsung with two SIM card of Idea Company (9911751609 & 8750240715) and a chunni were recovered from the house of accused Prabha.
Taking and seizing the school/college documents regarding accused Sachin and Prabha
86. In this regard, prosecution has examined PW-13 Constable Kiran Pal and PW-31 Inspector Vipin Kumar Sharma. PW-31 Inspector Vipin Kumar Sharma testified that on 16.08.2011, he along with Constable Kiran Pal (PW-13) went to Office of Principal, Delhi Paramedical and Management Institute Ashok Nagar and collected some documents related to admission of accused Prabha and Sachin in that institute and seized vide seizure memo PW-13/B. Said documents have been SC No. 2216/2016 State v. Sachin & Ors. Page No. 56 of 86 marked as Ex. PW-31/A-1 to Ex. PW-31/A-15 and register as Ex. PW- 31/A-16. PW-13 Constable Kiran Pal has also deposed on the line of the PW-31 in respect of collecting the admission documents of accused Sachin and Prabha from the said institute. Ex. PW-31/A-1 to Ex.PW-31/A-4 are duly filled 'Registration Cum-Admission Form' of The Para Medical & Hotel Management Institute (DPMI) pertaining to accused Prabha and Ex.PW-31/A-11, Ex.PW-31/A-12, Ex. PW-31/A-5 and Ex. PW-32/A-6 are duly filled 'Registration Cum-Admission Form' of DPMI pertaining to accused Sachin. Ex.PW-31/A-7 to Ex. PW-31/A- 10 are receipts of payment of course fees for semesters for accused Prabha. Ex.PW-31/A-13 and Ex. PW-31/A-14 are receipts of payment of course fees for semesters for accused Sachin. Ex. PW-31/A-15 is a letter dated 16.08.2011 issued by Principal DPMI wherein it is mentioned that accused Prabha and accused Sachin were enrolled in DPMI on 03.07.2010 and 01.06.2010 respectively and were in DMLT and BSCMLT and their roll numbers were 117 and 147 respectively. Ex.PW-31/A-16 is register of MLT-Ist (SEM) for A,B, C Section.
87. No cross examination of PW-13 and PW-31 have been done on behalf of the accused persons in respect of collecting the admission documents etc. of the accused Sachin and Prabha. Accused Prabha in her statement under section 313 of the Code, when evidence regarding visiting DPMI on 16.08.2011 by PW-13 and PW-31 and seizure of the documents relating to admission and attendance register from the Principal were put to her, then she replied SC No. 2216/2016 State v. Sachin & Ors. Page No. 57 of 86
-''I do not know". Hence she did not say that she and/or Sachin did not take admission in the year of 2010 in said Institute. But when said evidence were put to accused Sachin in his statement under section 313 of the Code, then he said that "It is incorrect". Hence From the testimony of PW-13 and PW-31, Ex. PW-13/B and Ex. PW-31/A-1 to Ex. PW-31/A-16, it has been proved that accused Prabha and accused Sachin took admission in DPMI in the year of 2010.
The recovery of socks and handkerchief of the deceased from the house of accused Prabha
88. To prove the recovery of the socks and handkerchief of deceased Rakesh, the prosecution has examined three witnesses i.e. PW-8 Mamta, PW-13 Constable Kiran Pal and PW-31 Inspector Vipin Kumar Sharma. Mamta has testified in this regard that on 06.05.2011, Prabha called deceased in evening to sleep there as she had fear. She was also staying with Prabha at her father's house at that time. Deceased came there on the bike at night. Accused Prabha served him a cold drink Mirinda after mixing lemon juice in it. They all took their meals. She went to sleep at about 10-10:30 p.m. in a room which was in the side of main gate. She left Prabha and deceased in another room. In the next morning, at about 7:00 a.m., deceased was not there and when she inquired Prabha about him, she disclosed that deceased had already gone. She found a handkerchief and socks belonging to deceased lying there. On being enquired from Prabha as why SC No. 2216/2016 State v. Sachin & Ors. Page No. 58 of 86 deceased left the same there, she told that same were dirty and to be washed.
89. Accused Prabha has admitted in her statement under section 313 of the Code that Mamta (PW-8) found a handkerchief and socks belonging to deceased lying there and she inquired from her regarding lying of said handkerchief and socks, then she replied her that same were dirty and were to be washed.
90. Inspector Vipin Kumar testified in this regard that on 16.08.2011 he went to the house of accused Prabha and her father met him and handed over one handkerchief (used) and pair of socks stated to be belonging to Rakesh (deceased) and same were given to him by accused Prabha. He seized the same vide seizure memo Ex. PW- 13/C and same were kept in a pulanda and sealed by seal of VK and he deposited the same in malkhana.
91. PW-13 Constable Kiran Pal has corroborated the testimony of PW-31 stating that he along with PW-31 went to House No. 401, Gali No. 09, Om Nagar on 16.08.2011 and Sukh Pal, father of accused Prabha met them there. He has also deposed regarding handing over socks and handkerchief of deceased by said Sukh Pal after bringing out the same from box of his bed. He has also deposed regarding colour of handkerchief and socks which are stated to be black colour by him. He has also stated regarding seizing and sealing the same as SC No. 2216/2016 State v. Sachin & Ors. Page No. 59 of 86 deposed by the PW-31. He has also deposed regarding depositing the case property in the malkhana as deposed by the PW-31. Both the said witnesses have described the colour of both the said articles. Both the witnesses identified the handkerchief as Ex. P-6 and shocks as Ex. P-7 during trial. Accused Prabha has not denied in her statement under section 313 of the Code said handkerchief and socks belonging to deceased were not handed over by her father in her house.
92. Hence, from the testimony of PW-8, PW-13 and PW-31, and statement of accused Prabha under section 313 of the Code that PW- 8 found handkerchief and socks of deceased at the house of accused Prabha at about 07:00 a.m. on 07.05.2011 and further on 16.08.2011, the father of accused Prabha, handed over said handkerchief (Ex. P-
6) and socks (Ex. P-7) to PW-13 and PW-31 which were seized vide Ex. PW-13/C. Nodal Officers
93. PW-19 Pawan Singh is the Nodal Officers, IDEA Cellular Limited. He brought ownership proof/customer application form as well as CDRs of mobile phone numbers 9891417631, 8750240715 and 9911751609. The call details of said mobile phones from April and May, 2011 have been marked as Ex. PW-19/A, PW-19/B and PW- 19/C respectively. The certificate about truthfulness of call details of SC No. 2216/2016 State v. Sachin & Ors. Page No. 60 of 86 mobile numbers 9891417631 and 9911751609 has been marked as Ex. PW-19/D. The certificate about truthfulness of call details of mobile number 8750240715 has been marked as Ex. PW-19/E signed by Surender Kumar (Assistant Nodal Officer) at point A. He had identified signatures of Surender Kumar on Ex. PW-19/E at point A as he had seen him writing and signing before him being an Assistant in their office. True copy of customer application form about phone number 9891417631 in the name of Sachin Kumar, Son of Shri Girwar Singh has been marked as Ex. PW-19/F. Copy of customer application form of mobile phone number 9911751609 in the name of Varun Kumar, Son of Shri Anil Kumar, resident of House No. 27, Kushak, Palwal, Faridabad has been marked as Ex. PW-19/I. Copy of customer application form number 8750240715 in the name of Beny Singh, Son of Shri Rehtu, resident of House No. 42, Banheda, Khemchand, Saharanpur, Uttar Pradesh has been marked as Ex. PW- 19/K.
94. PW-19 has been cross examined on behalf of accused Sachin Kumar and Sunil Kumar but accused Prabha did choose not to cross- examination. In his cross examination conducted by the learned counsel of the accused Sachin Kumar, he had stated that he had brought Authority Letter with him. Copy of the said Authority letter has been marked as Ex. PW-19/DA. In said cross examination, it is also stated that it is not specifically mentioned in that Authority letter that he has been authorised to issue certificate under Section 65-B of the SC No. 2216/2016 State v. Sachin & Ors. Page No. 61 of 86 Evidence Act. But said witness has further stated voluntarily that he has been authorised to appear on behalf of their company in all the nodal cases for Delhi Circle. He has also denied in such cross examination that if electricity is off, entire data washes off from their system. He has also denied the suggestion that neither he is operating the data not he is a nodal officer.
95. PW-19 has also been cross examined on behalf of accused Sunil. In said cross examination, he has also stated that in CDRs of mobile number 8750240715, the location of this mobile phone was of Meethapur, 09.05.2011 which was shown as per Cell ID Chart bearing number 11711.
96. PW-22, Deepak is a nodal officer, Vodafone Mobile Services Limited but his examination in chief recorded partly on 23.04.2013 but thereafter no further examination of this witness could be recorded and therefore, testimony of this witness cannot be can not be taken into consideration.
97. Prosecution has also examined PW-24 Anuj Bhatia who is a nodal officer in Vodafone. He had brought original application form about phone number 9811713764 in the name of Sunil Kumar, Son of Shri Rajan Singh. The copy of the same has been marked as Ex. PW-22/A. He had also brought the call details of the said mobile phone for the period 01.04.2011 to 21.05.2011. Copy of the same has SC No. 2216/2016 State v. Sachin & Ors. Page No. 62 of 86 been marked as Ex. PW-22/E. Certificate about truthfulness of call details has been marked as Ex. PW-24/A signed by him at point A.
98. From the testimony of PW-19, it has been proved that phone number 9891417631 was registered in the name of accused Sachin and call detail of months April and May, 2011 have been proved as Ex. PW-19/A. And from the testimony of PW-24, it has been proved that phone number 9811713764 was registered in the name of accused Sunil Kumar call detail from the period for the period 01.04.2011 to 21.05.2011.
99. If call details of mobile number 9891417631 of accused Sachin and of mobile phone numbers 9911751609 and 8750240715 both of them used by accused Sachin goes to show that there were frequent calling between these three mobile phones. There were frequent calls i.e, about 16 calls and 14 SMS between mobile phone number 9891417631 and 9911751609 on 06.05.2011 and there were several calls and SMS on 07.05.2011 between them. In between mobile phone number 9891417631 and 8750240715 from 08:34 p.m. on 06.05.2011 to 03:24 a.m. on 07.05.2011, there were about 8 calls. The call details of mobile phone numbers 9891417631 and 9811713764 show that there were 4 calls on 06.05.2011 and last three calls were between 06:43 p.m. to 09:40 p.m. and one call at 01:39 a.m. on 07.05.2011. Hence, it has been proved from call details of said mobile phone numbers that accused Sachin, Sunil and Prabha were in SC No. 2216/2016 State v. Sachin & Ors. Page No. 63 of 86 contact on the day of incident i.e. between 06.05.2011 and 07.05.2011.
100. PW-24 had also brought original application form about phone number 9873813447 in the name of Sh. Khadak Prasad, Son of Sh. Girdhari. Copy of the same has been marked as PW-22/B. He had also brought the call details of the said mobile phone for the period 01.04.2011 to 21.05.2011. Copy of the same has been marked as Ex. PW-24/B signed by him at point A. Certificate about truthfulness of call details has been marked as Ex. PW-24/C signed by him at point A.
101. PW-24 had also brought original application form about phone number 9953460804 in the name of Mehmood Khan, Son of Shri Ibrahim Khan, resident of N-146, Block N, Abul Fazal Enclave-I, Jamia Nagar, Okhla, Delhi. Copy of the same has been marked as PW- 24/D. He had also brought the call details of the said mobile phone for the period 01.04.2011 to 21.05.2011. Copy of the same has been marked as Ex. PW-24/F signed by him at point A. Certificate about truthfulness of call details has been marked as Ex. PW-24/G signed by him at point A. He also brought the Cell ID Chart for Vodafone Delhi network. Copy of the same has been marked as Ex. PW-24/H certified by him at point A. This witness has not been cross examined by either of the accused persons.
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102. Prosecution had also examined Sh. Chandra Shekhar as PW-26 who is nodal officer, Bharti Airtel Limited, New Delhi. He also brought Customer Application form in respect of mobile phone number 9818493445 in the name of Varun Kumar S/o of Shri Anil Kumar, Resident of House No. 27, Kushak, Palwal, Faridabad, Haryana. Copy of that application has been marked as Ex. PW-26/A. He also brought call details of said phone for the period 01.04.2011 to 31.05.2011. There was no call from Delhi Circle during that period. Copy of the call details has been marked as Ex. PW-26/B signed by PW-26 at point A. Certificate about truthfulness of call details has been marked as Ex. PW-26/C signed by him at point A. This witness has not been cross examined on behalf of accused Prabha and Sunil. But he has been cross examined on behalf of accused Sachin but nothing materials in his favour has come out in said cross examination.
103. From the above discussion, following facts/circumstances have been proved:-
(i) Deceased was married with accused Prabha on 11.12.2008.
(ii) Deceased reached at the house of the accused Prabha i.e. House Number B-401, Gali Number 9, Om Nagar, Meethapur, New Delhi on 06.05.2011 at about 8:00 p.m. on a motorcycle bearing number DL 6S AD-1670 on calling by her and he was wearing grey SC No. 2216/2016 State v. Sachin & Ors. Page No. 65 of 86 colour shirt, dark grey colour pant, black colour belt and black colour shoes at that time.
(iii) On 06.05.2011, accused Prabha served cold drink Mirinda to the deceased and Mamta at her house and after consuming it, Mamta felt giddiness and when she asked about the cause of mixing lemon juice in the Mirinda, then accused Prabha explained/replied her that it was too hot, so she mixed lemon juice in the Mirinda and further that she felt giddiness as on previous day, she was on fast and need not to worry.
(iv) On 08.05.2011 matter regarding missing of deceased was reported to the police station Jaitpur by PW-3 vide Ex. PW-1/A and on 21.05.2011 FIR Ex. PW-1/B was registered in said police station.
(v) One mobile phone Make LG having mobile number 9891417631 (Ex.P-8) was recovered from the possession of accused Sachin and said mobile number was registered in his name.
(vi) The shirt (Ex. P-1), pant (Ex. P-2), belt (Ex. P-3) and one pair shoes (Ex. P-4) belonging to deceased, and bones (lower jaw, femer, ribs, skull and upper jaw) of deceased were recovered pursuant to the disclosure statement of accused Sachin and Sunil.
(vii) Smt. Dharmi Bai and Shri Khadak Prasad were the biological mother and father of exhibit '1' (teeth of the deceased).
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(viii) Alto car bearing number UP 16 AC 1329 belonging to accused Prabha was recovered on 24.05.2011 at the instance of accused Sachin nearby his house.
(ix) Motorcycle/Scooter make Honda bearing number DL 6S AD 1670 belonging to deceased was recovered on 24.05.2011 at the instance of accused Sunil nearby his house i.e. House No. D-282, Rajeev Colony, Ghaziabad, Uttar Pradesh.
(x) One mobile phone make Samsung and two SIM cards of Idea Company (Mobile number are 9911751609 and 8750240715) and a chunni were recovered from the house of accused Prabha.
(xi) Accused Prabha and accused Sachin took admission in DPMI in the year of 2010.
(xii) Witness Mamta found handkerchief (Ex. P-6) and socks (Ex. P-7) of deceased at the house of accused Prabha at about 07:00 a.m. on 07.05.2011.
(xiii) The handkerchief (Ex. P-6) and socks (Ex. P-7) of deceased was recovered from the house of accused Prabha on 16.08.2011.
(xiv) Accused Sachin, Sunil and Prabha were in contact prior to SC No. 2216/2016 State v. Sachin & Ors. Page No. 67 of 86 the incident and on the day of incident i.e. between 06.05.2011 and 07.05.2011.
The offence punishable under section 328 IPC
104. Section 328 IPC reads as under:-
"328. Causing hurt by means of poison, etc., with intent to commit an offence - Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
105. Charge for the offence punishable under Section 328 IPC was framed against the accused persons on the allegations that accused Prabha as part of conspiracy with co-accused Sachin Kumar and Sunil administered poison/drug namely Alprex mixed in cold drink (Mirinda). I have already held in previous para that accused Prabha served a cold drink (Mirinda) after mixing lemon juice in it to her husband (deceased). This fact was deposed by PW-8 Mamta. There is no other prosecution witness who has deposed regarding serving the cold drink (Mirinda) to deceased. PW-26 Dr. Sachin Kumar had conducted SC No. 2216/2016 State v. Sachin & Ors. Page No. 68 of 86 postmortem of the dead body of deceased vide postmortem report Ex.PW-25/A but no opinion about cause of death was given as it (dead body) was merely a skeleton. Hence, Dr. Sachin Kumar who had conducted postmortem on the dead body/skeleton of the deceased could not give any opinion regarding cause of death or any opinion regarding administering poisonous drug Alprex. There is no other witness who has deposed that poisonous drugs Alprex was administered to the deceased. Hence, prosecution has failed to prove the charge of offence punishable under Section 328 IPC against the accused persons.
The offence punishable under section 302 IPC
106. The case is based on circumstantial evidence. The principle of circumstantial evidence has been reiterated by Hon'ble Supreme Court in plethora of cases. In Bodhraj @ Bodha & Ors v. State of Jammu & Kashmir, (2002) 8 SCC 45, Hon'ble Supreme Court has held at para no. 9 to 13:
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence SC No. 2216/2016 State v. Sachin & Ors. Page No. 69 of 86 can be proved by circumstantial evidence also. The principal fact or facium probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. It has been consistently laid down by the Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukum Singh v. State of Rajasthan, (1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, State of U.P. v. Sukhbasi, 1985 Supp SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. 1989 Supp (1) SCC 560.) The circumstances from which an inference as to the guilt of the accused is drawn SC No. 2216/2016 State v. Sachin & Ors. Page No. 70 of 86 have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus : (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally SC No. 2216/2016 State v. Sachin & Ors. Page No. 71 of 86 inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10 (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused:
(3) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else: and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence ".
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13. In State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."
(emphasis supplied)
107. The above said principle of circumstantial evidence has been reiterated by Hon'ble Supreme Court in State of Goa v. Sanjay Thakkran & Ors., (2007) 3 SCC 755; Nizam & Ors v. State of Rajasthan, (2016) 1 SCC 550.
108. In Sanjay Thakkran's case (supra), Hon'ble Supreme Court has also observed in para no. 34.
"34. From the principle laid down by the Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point SC No. 2216/2016 State v. Sachin & Ors. Page No. 73 of 86 of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is, to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of SC No. 2216/2016 State v. Sachin & Ors. Page No. 74 of 86 the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
109. In Nizam's case (supra), the principle of "last seen theory" has been discussed in para Nos.14 and 15:
"14........ undoubtedly, the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory holds the courts to shift the burden of proof to the accused and SC No. 2216/2016 State v. Sachin & Ors. Page No. 75 of 86 the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
15. Elaborating the principle of "last seen theory" in State of Rajasthan v. Kashi Ram, this Court held as under: (SCC p. 265, para 23) "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special SC No. 2216/2016 State v. Sachin & Ors. Page No. 76 of 86 knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him, Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed, In re, AIR 1960 Mad 218.
The above judgment was relied upon and reiterated in Kiriti Pal v. State of W.B.(2015)11 SCC 178."
(emphasis supplied)
110. In Amit v. State of Maharashtra, (2003) 8 SCC 93, Hon'ble Supreme Court has observed :
SC No. 2216/2016 State v. Sachin & Ors. Page No. 77 of 86 "9. The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715, for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death. A rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain who and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction............."
111. The circumstances/facts which have been established are that SC No. 2216/2016 State v. Sachin & Ors. Page No. 78 of 86 deceased Rakesh was married with accused Prabha on 11.12.2008. Deceased reached at the house of the accused Prabha i.e. House Number B-401, Gali No. 9, Om Nagar, Meethapur, New Delhi on 06.05.2011 at about 08:00 p.m. on a motorcycle/scooter bearing number DL 6S AD 1670 on calling by her and he was wearing grey colour shirt, dark grey colour pant, black colour belt and black colour shoes at that time. On 06.05.2011, accused Prabha served cold drink Mirinda to the deceased and Mamta at her house and after consuming it, Mamta felt giddiness and when she asked about the cause of mixing lemon juice in the Mirinda, then accused Prabha explained/replied her that it was too hot, so she mixed lemon juice in the Mirinda and further that she felt giddiness as on previous day, she was on fast and need not to worry. One mobile phone Make LG having mobile number 9891417631 (Ex.P-8) was recovered from the possession of accused Sachin and said mobile number was registered in his name. The shirt (Ex. P-1), pant (Ex. P-2), belt (Ex. P-3) and one pair shoes (Ex. P-4) belonging to deceased, and bones (lower jaw, femer, ribs, skull and upper jaw) of deceased were recovered pursuant to the disclosure statement of accused Sachin and Sunil. Smt. Dharmi Bai and Shri Khadak Prasad were the biological mother and father of exhibit '1' (teeth of the deceased) which was recovered at the instance of accused Sachin and Sunil. Alto car bearing number UP 16 AC 1329 belonging to accused Prabha was recovered from the gali which was in front of house of accused i.e. House No. 454, Gali No.3, Sanjay Colony, Mohan Nagar, Ghaziabad, Uttar Pradesh at the instance of SC No. 2216/2016 State v. Sachin & Ors. Page No. 79 of 86 accused accused Sachin. Scooter make Honda bearing number DL 6S AD 1670 belonging to deceased was recovered nearby the house of accused Sunil i.e. House No. D-282, Rajeev Colony, Ghaziabad, Uttar Pradesh at the instance of accused Sunil. A mobile phone make Samsung with two SIM card of Idea Company (Mobile number are 9911751609 and 8750240715) and a chunni were recovered from the house of accused Prabha. Accused Prabha and accused Sachin took admission in DPMI in the year of 2010. Witness Mamta found handkerchief (Ex. P-6) and socks (Ex. P-7) of deceased at the house of accused Prabha at about 07:00 a.m. on 07.05.2011. The handkerchief (Ex.P-6) and socks (Ex.P-7) of deceased was recovered from the house of accused Prabha on 16.08.2011. Accused Sachin, Sunil and Prabha were in contact through mobile calls prior to the incident and on the day of incident i.e. between 06.05.2011 and 07.05.2011.
112. Hence, from the above discussions, it has been proved that deceased was married with the accused Prabha on 11.12.2008 and deceased reached at the house of accused Prabha at Om Nagar, Meethapur, New Delhi on 06.05.2011 at about 08:00 p.m. on a motorcycle/scooter make Honda Stunner bearing no. DL 6S AD 1670. When deceased reached at the house of accused Prabha, he was wearing grey colour shirt, dark grey colour pant, black colour belt and black colour shoes. On the same day, accused Prabha served cold drink Mirinda to deceased and Mamta (PW-8) at her said house and SC No. 2216/2016 State v. Sachin & Ors. Page No. 80 of 86 after consuming the same, the Mamta felt giddiness. On next day, i.e. 07.05.2011 deceased could not reach at his own house and then missing report was lodged on 08.05.2011 at the police station Jaitpur by Khadak Prasad, father of the deceased and thereafter, on 21.05.2011, FIR was registered. Accused Sachin and Sunil were arrested and their disclosure statements were recorded. Bones (lower jaw, femer, ribs, skull and upper jaw) were recovered pursuant to the disclosure statement of accused Sachin and Sunil from the Jungle of Gopalpur, Sikandrabad, Bulandshahr, Uttar Pradesh on 24.05.2011. Further, shirt, pant, belt and shoes were recovered pursuant to the disclosure statement of accused Sachin and Sunil from the said Jungle of Gopalpur on the same day i.e. 24.05.2011. Hence, after consuming the cold drink which was served by accused Prabha to deceased and Mamta (PW-8), she felt giddiness and reason of said giddiness told by accused Prabha to Mamta was that she was on fast on previous day and therefore she felt giddiness. Mamta did not say that due to remaining on fast on previous day, she felt giddiness. And further, Mamta was not on fast on day of serving the cold drink and it is improbable that due to fast on previous day, a person would feel guiddiness on next day in the evening due the said fast. The explanation of giddiness to witnes Mamta as given by accused Prabha is not acceptable/probable particularly when deceased who was also served the same cold drink was found dead. Hence, it can be safely held that the cold drink which was served to deceased and Mamta, was not simple cold drink and something was mixed due to which SC No. 2216/2016 State v. Sachin & Ors. Page No. 81 of 86 Mamta felt giddiness and same would have been atleast some adverse impact upon the health of deceased also. The said something could not be detected/known as dead body in the form of skeleton/bones of deceased could be recovered after 17 days and therefore in postmortem report cause of death could not be given.
113. Further the dead body/bones, wearing clothes (shirt, pant and belt) and shoes of deceased were recovered from jungle of Gopalpur, Sikandrabad, Bulandshahr at the instance of accused Sachin and Sunil and therefore, role have been played by these two accused also in the murder of deceased. Similarly the car belonging to accused Prabha has been recovered at the instance of accused Sachin nearby his house. The scooter/motorcycle on which deceased came to house of accused Prabha on 06.05.2011 has been recovered at the instance of accused Sunil nearby his house without number plate on 24.05.2011. In their statement under section 313 of the Code, the accused Sachin and Sunil have not explained the recovery of skeleton/dead body/bones, clothes etc. of deceased at their instance. Further, the recovery of said car belonging to accused Prabha nearby the house of accused Sachin at his instance has also not been explained by accused Sachin. Further, the recovery of said scooter/motorcycle belonging to deceased nearby the house of accused Sunil without number plate at his instance has also not been explained by accused Sunil. The accused Sunil has not explained why number plate of said motorcycle/scooter of deceased was removed.
SC No. 2216/2016 State v. Sachin & Ors. Page No. 82 of 86 The recovery of skeleton/dead body/bones, clothes etc., and scooter/motorcycle of deceased and car belonging to accused Prabha at the instance of accused Sachin and Sunil as discussed above established the involvement of accused Sachin, Sunil and Prabha in the murder of deceased Rakesh who was the husband of accused Prabha. Involvement of accused Prabha and murder of deceased at the house of accused Prabha in the intervening night of 06.05.2011 and 07.05.2011 further established from the proved fact that on 07.05.2011 in the morning witness Mamta found socks and handkerchief of deceased at the house of accused Prabha and same were recovered from the said house by police on 16.08.2011.
114. Mobile phone having mobile number 9891417631 was recovered from the possession of the accused Sachin and said mobile number was issued in his name. Mobile phone number 9811713764 was issued in the name of accused Sunil. One mobile and two SIM card (9911751609 and 8750240715) were recovered at the instance of the accused Prabha from her house. The call details of these four mobile numbers show that accused Prabha, Sachin and Sunil were in contact with each other through said mobile numbers on the day of incident, after the incident and prior to the incident.
115. A chunni was recovered from the house of the accused Prabha on 24.05.2011. Accused Prabha and Sachin took admission in DPMI Institute, Delhi in the year of 2010 that is prior to murder of deceased. From the teeth which was recovered at the instance of accused SC No. 2216/2016 State v. Sachin & Ors. Page No. 83 of 86 Sachin and Sunil and FSL report Ex. PW-31/C it has been proved that teeth was of deceased.
116. From these proved circumstances/facts, I am of the considered view that circumstances from which the conclusion of the guilt can be drawn have been fully proved and circumstances are of conclusive in nature. All the circumstances are complete and there are no gap left in the chain of evidence. The proved circumstances are consistent only with the hypothesis of the guilt of all the three accused persons and totally inconsistent with their innocence. Hence, prosecution has been succeeded to prove the charge of offence punishable under Section 302 IPC against all the three accused persons.
The offence punishable under section 201 IPC
117. I have already held in previous paras that accused persons have committed murder of the deceased on intervening night of 06.05.2011 and 07.05.2011. It has also been established that skeleton/ bones and clothes etc. of the deceased were found from jungle of Gopalpur, Sikandrabad, Bulandshahr, Uttar Pradesh at that instance of accused Sachin and Sunil on 24.05.2011. It has also been proved that handkerchief and socks of deceased were found on 07.05.2011 by witness Mamta at the house of the accused Prabha. Hence, from these evidence it has been proved without reasonable doubt that accused Sachin, Sunil and Prabha having conspired with each other, SC No. 2216/2016 State v. Sachin & Ors. Page No. 84 of 86 threw dead body of deceased in bushes/jungle of Gopalpur, Sikandrabad, Bulandshahr, Uttar Pradesh and caused disappearance of the evidence, hence, charge for the offence punishable under Section 201 IPC has been proved without reasonable doubt against the accused Sunil, Sachin and Prabha.
The offence punishable under section 120 B IPC
118. I have already held in previous paras that accused Sachin, Sunil and Prabha committed murder of deceased Rakesh on intervening night of 06.05.2011and 07.05.2011 and they threw his dead body in bushes/jungle situated at Gopalpur, Sikandrabad, Bulandshahr, Uttar Pradesh. I have already held that the accused Sachin, Sunil and Prabha through their mobile numbers (9911751609, 9891417631, 8750240715, 9811713764) were in contact with each other on the day of murder of deceased, prior and after of the murder. From these proved facts, the prosecution has been succeeded to prove the charge for the offence punishable under Section 120 B IPC against the accused persons and it has been proved that accused Sachin, Sunil and Prabha entered into a criminal conspiracy to eliminate deceased.
119. Hence, from the above discussion, prosecution has been succeeded to prove its case against the accused Sachin, Sunil and Prabha for the offences punishable under Section 120 B, 302 and 201 SC No. 2216/2016 State v. Sachin & Ors. Page No. 85 of 86 IPC and therefore, I hold all the said three accused persons guilty for the said offences and therefore, accused Sachin, Sunil and Prabha are convicted for the offences punishable under Section 120B, 302 and 201 IPC. But all the three accused persons are acquitted for the offence punishable under Section 328 IPC.
Announced in the open court on 27.05.2017.
(Sanjeev Kumar) Additional Session Judge-05, South East, Saket Courts, New Delhi SC No. 2216/2016 State v. Sachin & Ors. Page No. 86 of 86