Delhi District Court
By The Accused. (Hanumant Govind ... vs . The State Of Madhya Pradesh on 13 January, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 01/01/11
Unique Identification No. 02404R1000732003
State
Versus
1) Aman Bhardwaj @ Bobby
Son of Jagdish Bhardwaj
R/o Village Lamkheda, PO Charat Garh
District Una (H.P.)
2. Kapil Sharma @ Monu
Son of Mohinder Kumar Sharma
R/o Flat no. 712/15, GTB Nagar,
Sion Kali Bada (Bombay)
3. Mohd. Tayyab
Son of Tahir
R/o C256, Sector11,
Vijay Nagar,
Ghaziabad (U.P.)
4. Amit @ Mandeep
Son of Sohan Singh
R/o A7, Mohan Garden,
Uttam Nagar, Delhi. ............ (Since expired)
FIR No. 383/03
PS -Paschim Vihar
U/s. 364/302/201/34 of IPC
SC No. 01/01/11 1/42
Date of institution of the case: 21/10/2003
Arguments heard on: 05/01/2012
Date of reservation of order: 05/01/2012
Date of Decision: 13/01/2012
JUDGMENT
This case was registered on the complaint of one Raj Kumar Gupta U/s. 364/302/201 of IPC at PS Mussouri, Ghaziabad, U.P., where the dead body of one Sanjay Gupta was recovered. Prior to that, missing report of Sanjay Gupta was also got recorded on 25/05/2003 by Ritu Gupta, wife of Sanjay Gupta.
Regarding the recovery of the dead body, U.P. Police conducted some proceedings and as the matter was of PS Paschim Vihar, so, the documents were sent to PS Paschim Vihar, which were including rough site plan of the place of recovery of dead body, inquest papers, postmortem report, panchnama etc. and further FIR was recorded in PS Paschim Vihar U/s. 364/302/201 of IPC.
All the three accused were apprehended U/s. 41.1 Cr.P.C. by SI Raj Kumar of Special Staff on 25/07/2003 and accused persons made disclosure statements and on the next day i.e. 26/07/2003, accused persons also made disclosure statements.
On 25/07/2003, Maruti Esteem Car No. MH04Y4077 and Maruti Zen car without number plate were seized in this case. Accused persons pointed out the place, where they had thrown the dead body after committing murder. Accused persons also pointed out the place of murder i.e. H.No. A129, Sector55, Noida, U.P., Secod Floor portion, where Sanjay Gupta was murdered.
During investigation, scaled site plans were got prepared, where the murder had taken place and whether the dead body of Sanjay Gupta was thrown SC No. 01/01/11 2/42 and also from where, it was recovered. Rough site plans were also prepared of the places of murder and where the dead body was thrown.
During investigation, rent agreement of H.No. A129, Sector55, Noida, U.P., was also seized. Registration particulars of vehicle No. MH04Y4077 were obtained from Mumbai and were taken into possessing. Registration particulars of Maruti Zen Car No. DL3CT4150 were also taken into possession.
Maruti Esteem Car No. MH04Y4077 was also sent to FSL for examination. Call details of Cell phone No. 9811131222 and Cell phone No. 9811134191 i.e. of Narender Singh and Sanjay Gupta were obtained. Call details of Dheeraj Sharma's mobile No. 9811095160 were also obtained.
Personal searches of all the accused persons were conducted and their arrest memos were prepared. Accused Amit @ Mandeep was also arrested in this case and his disclosure statement was recorded. Accused Amit @ Mandeep also pointed out the place, where the dead body was thrown and also pointed out the place, where Sanjay Gupta was murdered.
On completion of investigation, chargesheet was filed against all the accused persons U/s. 364/302/201/34 of IPC.
Case was committed to the Court of Session on 27/11/2003 and was received on 03/12/2003.
On 26/03/2004, charge U/s. 120B of IPC, 364 read with Section 120B of IPC, 302 read with Section 120B of IPC and U/s. 201 read with Section 120B of IPC was framed against accused Aman Bhardwaj, Kapil Sharma, Mohd. Tayyab and Amit @ Mandeep to which they pleaded not guilty and claimed trial. SC No. 01/01/11 3/42
During the proceedings, accused Amit @ Mandeep expired. To prove its case, prosecution has examined PW1 to PW25 in all. On completion of evidence of the prosecution, statements of accused Aman Bhardwaj, Kapil Sharma and Mohd. Tayyab were recorded U/s. 313 Cr.P.C. They have denied the case of the prosecution.
Learned counsel for accused Aman Bhardwaj and Mohd. Tayyab tendered in defence evidence certified copy of Criminal Writ petition No. 141/2000 consisting 62 pages Ex. D1 and also judgment in Session Case No. 79/07 titled as State V. Anil Kumar in case FIR No. 940/01, U/s. 307/34 of IPC of PS Mangolpuri consisting 19 pages Ex. D2.
I have heard Ld. APP for State and Sh. R.M. Tuffail and Sh. M.C. Dhingra, counsels for all the accused persons and have gone through the material placed on record with evidence adduced.
Finding qua offence U/s. 364 read with Section 120B of IPC/U/s. 302 of IPC read with Section 120B of IPC and U/s. 201 of IPC read with Section 120B of IPC:
In this respect, PW7 Vijeta Thakur has stated that Sanjay Gupta was her son in law. On 22/05/2003, accused Aman Bhardwaj @ Bobby and Tayyab came to her house with her son in law Sanjay Gupta at about 34 p.m. Sanjay Gupta had come from Tis Hazari Courts after attending some matter and told that he was hungry. So, PW7 Vijeta Thakur made Pulav from him and also for accused Aman Bhardwaj and Tayyab. After taking Pulav, Sanjay Gupta took some rest. Accused Aman Bhardwaj @ bobby asked Sanjay Gupta to go outside for some business purpose. Sanjay Gupta was not feeling well as he was having SC No. 01/01/11 4/42 some headache. Thereafter, accused Aman Bhardwaj @ Bobby and Tayyab took Sanjay Gupta from the house of PW7 Vijeta Thakur. Sanjay Gupta told PW7 Vijeta Thakur that he would return to the house within 1½/2 hours. Then, Sanjay Gupta, Aman Bhardwaj and Tayyab left her house in a Maruti Zen car in between 6/7 p.m. PW8 Ritu Gupta has also stated that on 22/05/2003 between 9/10 p.m., her mother PW7 Smt. Vijeta Thakur informer her on the phone that Sanjay Gupta had gone with accused Tayyab and Aman Bhardwaj @ Bobby and while going, Sanjay Gupta told that he would return after sometime.
PW16 Raj Kumar Gupta has stated that on 22/05/2003, at about 9 to 9.30 p.m. , his brother Sanjay Gupta alongwith accused Aman Bhardwaj and Tayyab came to his house at A37, Sector19, Noida, in Maruti Zen Car No. DL3CT4150. His brother Sanjay Gupta was feeling tired and he asked him to make Shikanji. PW16 Raj Kumar Gupta prepared Shikanji and served to his brother Sanjay Gupta, accused Aman Bhardwaj and Tayyab. His brother was lying on a sofa in the drawing room and accused Aman Bhardwaj @ bobby and Tayyab were watching T.V. in the drawing room. His brother Sanjay Gupta and accused Aman Bhardwaj @ Bobby were arguing on some money matter and accused Aman Bhardwaj @ Bobby was talking with Amit and Monu on telephone with regard to settlement of account with his brother Sanjay Gupta. Thereafter, accused Aman Bhardwaj asked his brother that he had called Amit and Monu at his house at Sector 55, Noida for settlement of account. Sanjay Gupta told accused Aman Bhardwaj @ Bobby that he was not feeling well and was not in a position to go to his house, but accused Aman Bhardwaj @ Bobby insisted and SC No. 01/01/11 5/42 told that as he had called Amit and Monu, it would be appropriate to settle the accounts today.
PW16 Raj Kumar Gupta has further stated that his brother went with accused Aman Bhardwaj and Tayyab in the Zen car of accused Aman Bhardwaj.
PW8 Ritu Gupta has further stated that at about 11 or 11.45 p.m., her husband Sanjay Gupta called her on her phone and told that he was present at the house of PW16 Raj Kumar Gupta alongwith accused Aman Bhardwaj @ Bobby and Tayyab. He had also told that battery of his mobile phone was low and thereafter the phone was disconnected. Thereafter, her husband called her from the phone of accused Aman Bhardwaj @ Bobby and talked with her for 5/7 minutes and told that he was going to Kothi at Sector55, Noida, with accused Aman Bhardwaj @ bobby and Tayyab. Sanjay Gupta had also told that battery of his phone was low, so he would call her from Dheeraj Sharma's mobile phone. She was normal as her husband usually did not come to the house for a day or two and used to remain with accused Aman Bhardwaj @ Bobby, Tayyab and Monu. It was usual practice.
PW13 Dheeraj Sharma has stated that on 21/22.05.2003, he had a talk on telephone with Sanjay Gupta and at that time, he was in Noida sitting in Shipra Hotel and Sanjay Gupta told that he alongwith his brother was also in Noida. PW13 has further stated that mobile phone No. 9811134191 was also used by Sanjay Gupta and also by accused Aman Bhardwaj @ Bobby. Amit and Mohd. Tayyab were drivers. In the night of 22/05/2003, he was in Noida, but he does not remember whether Sanjay Gupta disclosed to him, when he had a talk that he was present at H.No. A129, Sector55, Noida with accused Amit, Kapil, Tayyab and SC No. 01/01/11 6/42 Aman Bhardwaj.
PW13 Dheeraj Sharma has further deposed that there used to be some disturbance between Sanjay Gupta and Aman Bhardwaj in respect of distribution of money between the two and H.No. A129, Sector55, Noida, was in the partnership of Sanjay Gupta and Aman Bhardwaj @ Bobby and he might be informed by Sanjay Gupta that he alongwith Aman Bhardwaj, Kapil, Amit and Tayyab was in the said house in the night of 22/05/2003.
Both PW8 Ritu Gupta and PW16 Raj Kumar Gupta have contradicted each other. PW8 Ritu Gupta has stated that she had talked with Sanjay Gupta at about 11 or 11.45 p.m. and till that time, he was in the house of Raj Kumar Gupta, whereas PW16 Raj Kumar Gupta has not given any time as to when Sanjay Gupta alongwith accused Aman Bhardwaj @ Bobby and Tayyab left his house in Maruti Zen car. From the depositions of these PWs i.e. PW7 Vijeta Thakur, PW8 Ritu Gupta and PW16 Raj Kumar Gupta, it cannot be said that Sanjay Gupta was kidnapped by accused Aman Bhardwaj and Tayyab as from the statements of these witnesses, it seems that that Sanjay Gupta had gone voluntarily with both these accused persons for settlement of accounts. Sanjay Gupta was not kidnapped by the accused persons in any manner nor they abducted him and if at all Sanjay Gupta had gone with the accused persons, then he had gone with them voluntarily to settle the accounts. Nothing has been brought on record to prove that any settlement was to be done and Sanjay Gupta was not having any business relations of any kind with accused Aman Bhardwaj @ Bobby and Tayyab. So, it cannot be said that both these accused induced and used any deceitful means to abduct Sanjay Gupta in any manner.
SC No. 01/01/11 7/42
PW8 Ritu Gupta has admitted in the cross examination that her husband Sanjay Gupta was having mobile phone No. 9811134191 and on 22/05/2003, her husband Sanjay Gupta called her from this mobile phone number and spoken to her on mobile No. 9810644205. According to the deposition of PW25 Deepak Gupta, DGM, Vodafone Essar South Ltd., the call details of mobile phone No. 9811134191, in the name of Sanjay Gupta from 01/05/2003 to 29/07/2003, were extracted from the system and were provided to the police, which are Ex. PW25/B. According to deposition of PW25 Deepak Gupta, on 22/05/2003, at about 23:43:15 hours, a call was made from mobile No. 9811134191 to mobile phone No. 9810644205, as appearing in Ex. PW25/B and at that time, location of the caller of the mobile phone No. 9811134191 was in South Delhi, Hauz Khas. So, the deposition of PW8 Ritu Gupta is corroborating that at about 11 or 11.45 p.m., her husband called her on her phone and told that he was present in the house of PW16 Raj Kumar Gupta with accused Aman Bhardwaj @ Bobby and Tayyab, but the same is not corroborating in any manner with the deposition of PW16 Raj Kumar Gupta, who has stated that on 22/05/2003, at about 9/9.30 p.m., his brother Sanjay Gupta came at Noida with accused Aman Bhardwaj and Tayyab in Maruti Zen car No. DL3CT4150 and stayed there and after sometime, Sanjay Gupta left with accused Aman Bhardwaj @ Bobby and Tayyab in Maruti Zen car of accused Aman Bhardwaj @ Bobby. PW16 Raj Kumar Gupta has not stated any time, when Sanjay Gupta left his house at Noida with accused Aman Bhardwaj @ Bobby and Tayyab nor he has been cross examined on this aspect as to at what time Sanjay Gupta left his house with accused Aman Bhardwaj @ Bobby and SC No. 01/01/11 8/42 Tayyab.
So, it is not certain as to till what time, Sanjay Gupta was present in the house of PW16 Raj Kumar Gupta or was not present or he was in South Delhi, Hauz Khas either with accused Aman Bhardwaj @ Bobby or Tayyab or was with someone else. So, the depositions of the witnesses that from the house of PW7 Vijeta Thakur, Sanjay Gupta left with accused Aman Bhardwaj @ Bobby and Tayyab to the house of PW16 Raj Kumar Gupta and from there, left for Sector55, Noida, are contradictory and they do not inspire any confidence about the last seen of Sanjay Gupta with accused Aman Bhardwaj @ Bobby and Tayyab. Recovery of dead body:
In this respect, PW7 Vijeta Thakur has stated that when Sanjay Gupta did not return to the house till 11.30 p.m., she rang up to her daughter PW8 Ritu Gupta. At that time, she was in Solan. Her daughter PW8 Ritu Gupta telephoned her at about 12/12.30 a.m. night and informed that Sanjay Gupta was at the house of PW16 Raj Kumar Gupta and everything was fine.
PW7 Vijeta Thakur has further stated that on 23/05/2003, PW16 Raj Kumar Gupta telephoned her at about 11/11.30 p.m. and asked about Sanjay Gupta and told that he was not attending the phone. She told him that she was also waiting for Sanjay Gupta. PW16 Raj Kumar Gupta told to PW7 Vijeta Thakur that somebody had telephoned him from Mussourie about a dead body lying at Mussourie and told that card of Tour and Travels belonging to Sanjay Gupta was found on the dead body. PW16 Raj Kumar Gupta further told that he had talked with Mussourie police, but they had no information. So, they thought that it was a false information. PW16 Raj Kumar Gupta further told that he was trying to SC No. 01/01/11 9/42 search his brother and asked PW7 Vijeta Thakur not to tell the same to PW8 Ritu Gupta.
PW8 Ritu Gupta has stated that her mother had also told that Sanjay Gupta had not returned to the house and she was worried. Thereafter, she tried to contact her husband on the mobile phone and on the land line phone, but he was not reachable.
PW8 Ritu Gupta has further stated that on 23/05/2003, she moved to Shimla from Solan and from there, she also tried to contact her husband Sanjay Gupta, but his number was switched off. She also tried to contact accused Aman Bhardwaj @ Bobby, but his phone was also switched off. Thereafter, she contacted her brother in law (Devar) PW16 Raj Kumar Gupta and inquired about Sanjay Gupta, but PW16 Raj Kumar Gupta told her that he was not in touch with Sanjay Gupta and further told that he had received a crank call from someone that they were speaking from Mussourie and a dead body resembling Sanjay Gupta was lying near Gang Nahar. On this, PW8 Ritu Gupta became worried, but PW16 Raj Kumar told her not to worry and let him confirm the facts.
PW8 Ritu Gupta has further stated that when she did not receive any call from PW16 Raj Kumar Gupta, she again tried to contact him, but there was not confirmation from his side. She waited for whole of the night and in the morning, she moved from Solan to Delhi as she was not able to get any number either of accused Aman Bhardwaj @ bobby or Sanjay. She reached at Delhi late in the night and reached at her house in Paschim Vihar. Her mother PW7 Smt. Vijeta Thakur told her that accused Aman Bhardwaj @ Bobby and Tayyab had taken Sanjay Gupta with them. She picked her mother and they reached at Sanjay SC No. 01/01/11 10/42 Gupta's father's house at B4/123, Sector, Rohini, where her father in law, her brother in law (Devar) and Dhiraj Sharma were found present. Her brother in law Raj Kumar Gupta told her that he had received calls from Monu that he had kidnapped Sanjay Gupta. Whole of the night they were worried and were waiting for another call about Sanjay Gupta, but throughout the night, they did not receive any call.
PW7 Smt. Vijeta Thakur has stated that in the morning of 24/05/2003, she again telephoned her daughter PW8 Ritu Gupta and asked her to come to Delhi. PW8 Ritu Gupta came to Delhi at about 10/11 p.m. at the house in Paschim Vihar and from Paschim Vihar, PW8 Ritu Gupta and she went to Rohini, but PW7 Smt. Vijeta Thakur has nowhere stated that there, PW16 Raj Kumar Gupta was also present. Dheeraj Sharma was also present and it was told that Raj Kumar Gupta had received a call from Monu that he had kidnapped Sanjay Gupta. It is not explained as to why Raj Kumar Gupta was present in the house of his father at Rohini on 24/05/2003 at about 10/11 p.m. PW16 Raj Kumar Gupta has nowhere stated that he had also gone to his father's house at B4/123, Rohini, and at that time, PW7 Vijeta Thakur and PW8 Ritu Gupta had come there. PW16 Raj Kumar Gupta has also not stated that he had disclosed about a call received from Monu that Monu had kidnapped Sanjay Gupta. So, there is no corroboration in this respect that Sanjay Gupta was kidnapped by Monu, as disclosed by PW16 Raj Kumar Gupta nor PW16 Raj Kumar Gupta has clarified as to who was Monu, rather has deposed contrary to PW8 Ritu Gupta and has stated that in the intervening night of 24/25.05.2003, he received a call from PW8 Ritu Gupta at about 2.30/3.00 a.m. night, who told that she had received a call from some SC No. 01/01/11 11/42 unknown person, who told that a dead body resembling Sanjay Gupta was lying near Ghaziabad Mussourie railway track near nahar.
So, on one hand, PW16 Raj Kumar Gupta has stated that he received information from PW8 Ritu Gupta about a dead body resembling Sanjay Gupta lying near Ghaziabad Mussourie railway track near Nahar, whereas on the other hand, PW8 Ritu Gupta has stated that PW16 Raj Kumar Gupta told her that he had received a crank call from someone that they were speaking from Mussorie and dead body resembling Sanjay Gupta was lying near Gang Nahar. So, it is not known, who had received such call and from whom. Card of tour and travels of Sanjay Gupta was found near the dead body as stated by the witnesses. So, the number of the informer , who had made call could have been supplied to the police for investigation. It is also strange that till the night of 24/05/2003, none of the person made any police report that Sanjay Gupta was missing, who had gone with accused Aman Bhardwaj @ Bobby and Tayyab in the night of 22/05/2003. Even no such card was recovered at the time of recovery of dead body.
According to PW8 Ritu Gupta, in the morning of 25/05/2003, they went to PS Paschim Vihar and lodged missing report of her husband. PW16 Raj Kumar Gupta has also stated that on 25/05/2003, he went to PS Paschim Vihar at about 2.30/3.00 p.m. to report the matter, but he was told that PW8 Ritu Gupta had already lodged the missing report. He disclosed to the police whatever was told to him by PW8 Ritu Gupta in the intervening night of 24/25.05.2003 and he was accompanied to the police station by Dheeraj Sharma, who was driver of his brother Sanjay Gupta, but the conduct of PW16 Raj Kumar Gupta is highly suspicious as he did not disclose the fact that he had received a call that Sanjay SC No. 01/01/11 12/42 Gupta was kidnapped by one Monu and he had received the call from Monu himself either to PW7 Vijeta Thakur or to PW8 Ritu Gupta nor he disclosed the same to the police at any time, particularly on 25/05/2003, when he had gone to PS Paschim Vihar at about 2.30/3.00 p.m. to report the matter that his brother Sanjay Gupta was missing.
The report made by PW8 Ritu Gupta in PS Paschim Vihar is Mark X, according to which, on 22/05/2003, her husband Sanjay Gupta, at about 6/7.00 p.m., had gone with accused Aman Bhardwaj @ Bobby and Tayyab in Maruti Zen car No. DL3CT4150 and she had talked with her husband at about 11 or 11.45 p.m.. She was told by her husband that he was in Noida and was coming from there. So, in this missing report, PW8 Ritu Gupta has nowhere stated that she had received a call about the lying of a dead body resembling Sanjay Gupta, which according to PW16 Raj Kumar Gupta, was received by him from PW8 Ritu Gupta in the intervening night of 24/25.05.2003 at about 2/2.30 a.m. According to PW8 Ritu Gupta, she received a call from PW16 Raj Kumar Gupta about the fact that a dead body resembling Sanjay Gupta was lying near Gang Nahar. In such circumstance, if PW8 Ritu Gupta was having any information, as disclosed by PW16 Raj Kumar Gupta that dead body resembling Sanjay Gupta was lying near Gang Nahar, then certainly, this could have been disclosed in the missing report but it seems that either she has concealed this information or she did not receive any such information from PW 16 Raj Kumar Gupta. Similarly, on the other hand, if PW16 Raj Kumar Gupta had received such information from PW8 Ritu Gupta in the intervening night of 24/25/05.2003, at about 2.30/3.00 a.m., then it was a vital information and merely that missing SC No. 01/01/11 13/42 report was already lodged by PW8 Ritu Gupta with the police of PS Paschim Vihar could not have prevented PW16 Raj Kumar Gupta to disclose the same to the police officials of PS Paschim Vihar. So, it seems that either no such information was received by him from PW8 Ritu Gupta or he concealed the same from the police at that time for the reasons best known to him.
PW8 Ritu Gupta has further stated that after lodging the missing report of her husband from PS Paschim Vihar, police officials accompanied them to PS Mussories. She was accompanied by PW16 Raj Kumar Gupta and Pw7 Vijeta Thakur and Dheeraj Sharma. They reached at Mussourie, but her brother in law (Devar) did not allow her to come down from the car and told that he would talk to the police officials. Till evening, they waited. At that time, she was pregnant and her brother in law told her to go to the house and he would informer her later on.
PW7 Vijeta Thakur has also stated that police of PS Paschim Vihar took them to Mussourie. People told them that in the night of 22/23.05/2003, two vehicles had come and they had thrown one dead body. Then, they went to PS Mussourie. In the PS, police told them that they had no information about the dead body. Police went in search of the dead body and took them, where the dead body was found. Till 11.30 p.m., nothing could be traced. PW16 Raj Kumar Gupta asked them to go to the house, so, she and her daughter PW8 Ritu Gupta came back to Delhi at Paschim Vihar.
PW16 Raj Kumar Gupta has stated that he along with Dheeraj Sharma, ASI Chattar Singh and two Constables reached at PS Mussourie, District Ghaziabad. There was no information in PS Mussourie, however, on inquiry from local people, it was revealed that in the intervening night of 23/24.05.2003, two SC No. 01/01/11 14/42 cars i.e. one small car and other big car had come and a dead body was thrown out of the car. They came back to PS Mussourie and informed about the said facts. Police officials tried to trace out the dead body, but it could not be traced out till late in the night. PW16 Raj Kumar Gupta has further stated that he, Dheeraj Sharma, ASI Chattar Singh and two Constables stayed at a Hotel in Mussourie and again on 26/05/2003, they went to PS Mussourie and from there, they all went near Nahar and saw the dead body of his brother floating in the Nahar. He identified the dead body of his brother. It was taken out. Police of PS Mussourie prepared report U/s. 174 Cr.P.C. Ex. PW13/A. Thereafter, dead body was sent for postmortem and was handed over to them. Photographs of the dead body were also taken from different angles. His statement was recorded.
PW16 Raj Kumar Gupta has nowhere stated that PW7 Vijeta Thakur and Pw8 Ritu Gupta had also accompanied them to Mussourie in search of the dead body of Sanjay Gupta. On one hand, PW7 Vijeta Thakur and PW8 Ritu Gupta have stated that they had gone to Mussourie with PW16 Raj Kumar Gupta, whereas in the cross examination, PW16 Raj Kumar Gupta has stated that they reached at PS Mussourie at about 6/7.00 p.m. They had gone to Mussourie in a Zen car bearing No. 444. PW8 Ritu Gupta and her mother were not in the Zen car, but they were already present in PS Mussourie. So, these witnesses have not corroborated to the fact that they had gone to Mussourie in search of dead body of Sanjay Gupta and the contradiction in this respect is material, hence, witnesses cannot be relied upon.
PW13 Dheeraj Sharma has also stated that on 26/05/2003, he alongwith PW8 Ritu Gupta, Pw16 Raj Kumar Gupta, PW7 Vijeta Thakur and staff of PS SC No. 01/01/11 15/42 Paschim Vihar started from Delhi for going to the place of recovery of the dead body on 25/05/2003 and reached there quite late in the night. PW8 Ritu Gupta and PW7 Vijeta Thakur came back because of the late hours. Dead body was recovered by him and PW16 Raj Kumar Gupta on 26/04/2003. He joined the inquest proceedings Ex. PW13/A and signed the same. PW13 has further deposed that on inquiry, police told that dead body was lying there throughout the day under the railway bridge near the bank of river and it was told that due to darkness, it was not possible to trace out the dead body and they will trace out the dead body on the next morning. The local public pointed out the place of having seen the dead body. In the cross examination, PW13 Dheeraj Sharma has deposed that police personnel stayed with them in a hotel and payment was made by PW16 Raj Kumar Gupta. PW13 has further deposed that he had signed the panchnama, prepared by Ghaziabad police.
According to the villagers, as deposed by PW13 Dheeraj Sharma, dead body was lying throughout the day under the railway bridge near the bank of river and PW13 has further stated that on 25/05/2003, dead body was not there, from where, it was recovered on 26/05/2003. So, it is difficult to say as to when dead body was thrown in the Nahar or was thrown at the place, from where, it was recovered. Even it is not certain as to whether the dead body was thrown in the Nahar on 25/05/2003 or 26/05/2003 or in the intervening night of 22/23.05.2003 or on 24/05/2003. Conduct of PW13 Dheeraj Sharma is also suspicious as PW16 Raj Kumar Gupta had also named Dheeraj Sharma in case Fir No. 940/2001 citing as one of the accused alongwith Aman Bhardwaj @ Bobby at PS Mangolpuri for the offence U/s. 307 of IPC and if it was so, then why he was accompanying Pw16 SC No. 01/01/11 16/42 Raj Kumar Gupta and had gone to search Sanjay Gupta. Merely that Sanjay Gupta was childhood friend of PW13 Dheeraj Sharma, as disclosed by him, Dheeraj Sharma was not having any occasion to go to search the dead body of Sanjay Gupta with PW16 Raj Kumar Gupta, who had lodged a case against him, which shows that Raj Kumar Gupta and Dheeraj Sharma seems to be involved in some manner in the unnatural death of Sanjay Gupta.
Regarding the recovery of the dead body, Pw18 Inspector Prithvi Raj Chauhan has stated that on 25/05/2003, he was working as SHO, PS Mussourie, District Ghaziabad. On that day, SI Chattar Singh alongwith Constable Sukhbir Singh and Constable Jai Prakash with PW16 Raj Kumar Gupta and PW13 Dheeraj Sharma came to PS as they had information that dead body of Sanjay Gupta was lying near Gang Nahar, Mussourie. They told him that they got the said information from an unknown person on telephone. They had also with them DD No. 7A of PS Paschim Vihar dated 25/05/2003 regarding missing report of Sanjay Gupta. So, he alongwith , PW17 SI Nanhe Lal Gangwar and the police officials alognwith public witnesses, who had come from Delhi, went to Dehra Jal, Gang Nahar.
PW18 Inspector Prithvi Raj Chauhan has further deposed that they found the dead body at Dehra Jail floating in the water. Dead body was identified by PW16 Raj Kumar Gupta and PW13 Dheeraj Sharma. Information regarding recovery of dead body was recorded in PS Mussourie, District Ghaziabad vide DD No. 17 and carbon copy of the same recorded by Constable Harpal, is Ex. PW12/DA. PW18 has further deposed that inquest papers of dead body of Sanjay Gupta were prepared by PW17 SI N.L. Gangwar Ex. PW13/A. Then, request to SC No. 01/01/11 17/42 CMO, MMG Hospital, was made vide application Ex. Pw7/A and other papers Ex. PW17/B and C. Postmortem of the dead body was got conducted on the basis of DD No. 17 Ex. PW12/A. They registered FIR No. 93/03 respective Crime No. Nil/03, U/s. 302/201 of IPC, copy of which is Ex. PW18/A. Statements of witnesses were recorded and as the mater was of jurisdiction of PS Paschim Vihar, so, he transferred all the papers to PS Paschim Vihar.
PW18 has further stated that there was no open injury on the dead body and it seems that the dead body was thrown in the Nahar about one or two days before.
PW17 SI Nanhe Lal Gangwar has stated that on 26/05/2003, he was posted at Ps Mussourie, District Ghaziabad, as ASI. On that day, on receipt of GD no. 17 at about 11.00 a.m., he alongwith two Constables reached at Dehra Gang Nahar, where a dead body was lying under the bridge floating in the water. It was taken out and was identified by PW13 Dheeraj Sharma and PW16 Raj Kumar Gupta and ASI Chattar Singh and one constable were also present there at that time. Panchnama was prepared Ex. PW13/A. Inquest papers were prepared and dead body was sent to mortuary through Constable Vinod and Ct Pradeep. Pw16 Raj Kumar Gupta had given statement regarding identification of dead body, which is Ex. PW17/A. He made request to the CMO for postmortem vide Ex. PW17/A. Form 13 and description of the dead body were prepared Ex. PW17/B and Ex. PW17/C and thereafter got conducted the postmortem on the dead body vide PM report Ex. PW12/A. Thereafter, the dead body was handed over to the relatives of the deceased.
PW14 ASI Chattar Singh has stated that on 25/05/2003, he was posted SC No. 01/01/11 18/42 at PS Paschim Vihar. On that day, on receipt of missing report vide DD No. 7A, he along with Constable Sukhbir, Constable Jai Prakash, PW8 Smt. Ritu Gupta, wife of Sanjay Gupta, PW7 Smt. Vijeta Thakur, PW16 Raj Kumar Gupta and PW13 Dheeraj Sharma went to Mussorie, District Ghaziabad. Firstly, they reached at PS Mussourie and got recorded their arrival entry at about 11 p.m. vide DD No.
41. At that time, it was dark, so nothing could be seen and recovered. PW8 Ritu Gupta and PW7 Vijeta Thakur came back and they stayed there.
PW14 ASI Chattar Singh has further stated that on 26/05/2003, they went to Dehra Jaal. There was a police post of local police. There was one dead body. It was obstructed in Bandh of the canal. PW16 Raj Kumar Gupta and PW13 Dheeraj Sharma identified the dead body of Sanjay Gupta. Local police was informed. Thereafter, the dead body was taken out of the canal with the help of the local police. Panchnama of the dead body was prepared. PW17 SI N.L. Gangwar recorded Zero FIR regarding the recovery of dead body U/s. 302/201/34 of IPC. Dead body was sent for postmortem through Constable Pradeep and Constable Vinod and thereafter, it was handed over to PW16 Raj Kumar Gupta.
PW14 ASI Chattar Singh has stated that information was given to him by complainant i.e. Ritu Gupta that she had received information regarding dead body lying there. So, the contradiction, as pointed out as to whether this information was received by PW16 Raj Kumar Gupta or by PW8 Ritu Gupta is also again fortified and it is clear that PW8 Ritu Gupta has twisted the facts before the Court by saying that she received information from PW16 Raj Kumar Gupta, whereas in fact, PW16 Raj Kumar Gupta has deposed before the Court that he received this information from PW8 Ritu Gupta.
SC No. 01/01/11 19/42
In such circumstances, it has to be seen whether there was any co relation of the facts that on 22/05/2003, Sanjay Gupta was taken by accused Aman Bhardwaj @ Bobby and Mohd. Tayyab, as deposed by the witnesses, and at that time, PW8 Ritu Gupta was not present in Delhi and had gone to Solan, but she received information about the dead body of a person resembling Sanjay Gupta, which she disclosed to PW16 Raj Kumar Gupta, but before the Court, she has stated that she received this information from PW16 Raj Kumar Gupta.
In a writ petition filed by the father of deceased Sanjay Gupta, copy of the statement recorded by Ghaziabad police of Ritu Gupta was placed on record, wherein Ritu Gupta disclosed to Ghaziabad police that her husband Sanjay Gupta was taken by accused Aman Bhardwaj @ Bobby and Tayyab forcibly by taking him in Maruti Zen Car No. DL3CT4150 and even it is not appearing in her statement given to Ghaziabad Police that at that time, she was in Solan or had gone to Shimla. Ritu Gupta further told to Ghaziabad Police that the persons, who had informed from Mussourie were probably Mohd. Umar, Nihal Hashmi and Musharaff Mussourie. this part of the statement given to Ghaziabad Police is entirely missing in the statement given before the Court in this case, which raises doubt as to whether PW8 Ritu Gupta was also involved in the murder of Sanjay Gupta and she has tried to create a plea of alibi by deposing that she was outside Delhi at that time and came back on 25/05/2003. According to Ghaziabad police, dead body was recovered on 26/05/2003 and PW18 Inspector Prithvi Raj Chauhan has stated that according to his observation, dead body might have been thrown in the Nahar about one or two days before, which means on 23/05/2003 or 24/05/2003 and due to this reason, she might have deposed that she came back to SC No. 01/01/11 20/42 Delhi on 25/05/2003, which create doubts about her involvement in this incident. Cause of Death:
Postmortem on the body of Sanjay Gupta was got conducted by U.P. Police and it was conducted by PW12 Dr. A. Mishra. He has stated that on 26/05/2003, he conducted postmortem on the body of Sanjay Gupta. On examination of the dead body, certain injuries were found and cause of death was shock and coma due to laceration of brain. Firstly, PW12 Dr. A. Mishra has nowhere deposed that the injuries, as observed by PW12, were sufficient to cause death in the ordinary course of nature. Secondly, according to cross examination of PW12 Dr. A. Mishra, only 100 ml watery fluid was found in the stomach, which was not sent for any test. Postmortem on the dead body was conducted at 3.30 p.m. and it was stated to be three days old. So, according to the opinion of the doctor, Sanjay Gupta might have died at about 3.30 p.m. on 23/05/2003.
According to the call details of mobile phone No.9811134191 Ex. PW25/B, various outgoing calls were made from 23/05/2003 since 7.43 a.m. to the mobile phone of Dheeraj Sharma i.e. 9811095160 and this continued whole of the day on 23/05/2003, 24/05/2003 and the last call was on 24/05/2003 at about 23:02:07 hours, which shows that phone of Sanjay Gupta i.e. mobile phone No. 98111314191 was working till 24/05/2003, but it cannot be said whether till that time, Sanjay Gupta was alive or this phone was being used by making calls to Dheeraj Sharma till 24/05/2003 by someone else. It is not explained or investigated as to whether all these outgoing calls were made by Sanjay Gupta or by any other person from his mobile phone from 23/05/2003 at 7.43 a.m. to 24/05/2003 at 23:02:07 hours. Is it not strange that all these calls were outgoing SC No. 01/01/11 21/42 and were made to Dheeraj Sharma. In the night of 22/05/2003, Dheeraj Sharma was in Shipra Hotel and it is not explained as to what he was doing there and why he had gone there and it is also not know whether the calls, as per Ex. PW25/B, were made by Sanjay Gupta or by any other person from the mobile phone of Sanjay Gupta bearing No. 9811134191 to Dheeraj Sharma and in what context. PW13 Dheeraj Sharma has not explained the same in any manner before the Court, rather he had deposed some facts before the Court very reluctantly.
It has been deposed by the witnesses that Sanjay Gupta was also having mobile phone No. 9811131222. It was in the name of Narender Singh, R/o E36, Sector44, Noida. It is also not investigated as to who was Narender Singh and why the phone number issued in his name was being used by Sanjay Gupta. It is not known as to whether Narender Singh was existing or not or was a fake personality. This mobile phone number issued in the name of Narender Singh also remained active from 22/05/2003 at 6.20 a.m. to 23/05/2003 till 2.40 a.m. According to call details of mobile phone No. 9811131222 i.e. of Narender Singh Ex. PW25/A, outgoing call was also made on the mobile phone of Dheeraj Sharma at about 12.30 a.m. in the intervening night of 22/23.05.2003, which is corroborating that Sanjay Gupta had called Dheeraj Sharma on his mobile phone from this mobile phone of Narender Singh and certainly till that time, he was alive. Last call recorded in this mobile phone of Narender Singh is 23/05/2003 of 2.43 a.m. and thereafter, it was not used as it is not showing any incoming or outgoing call thereafter, whereas the mobile phone of Sanjay Gupta was used to make outgoing calls till 24/05/2003 at 23.02 p.m. night. It is not known why all the outgoing calls were made from 23/05/2003 to 24/05/2003 from this mobile phone SC No. 01/01/11 22/42 of Sanjay Gupta to Dheeraj Sharma only as no other outgoing call is reflecting made on any other phone number.
In such circumstances, witnesses have deposed falsely about the fact that they tried to contact Sanjay Gupta on both the phones several time, but he could not be contacted as it was found switched off. According to Ex. PW25/A and Ex. PW25/B, phone issued in the name of Narender Singh remained active till 23/05/2003 upto 2.40 p.m. and phone of Sanjay Gupta remained active till 24/05/2003 at 23:02 p.m. night and various outgoing calls were made. So, it cannot be said that it was switched off in any manner. The call details of Dheeraj Sharma Ex. PW25/C have not been investigated except the call, he made to Sanjay Gupta in the night of 22/05/2003. He had also made several outgoing calls till 23/05/2003 at 19.15 p.m. So, in all, role of Dheeraj Sharma regarding receiving outgoing calls from mobile phone of Sanjay Gupta and his presence in Shipra Hotel, Ghaziabad, has not been investigated properly.
Dheeraj Shrama was also having motive to commit murder of Sanjay Gupta as Raj Kumar Gupta had got registered a case from PS Defence Colony U/s. 343/506/34 of IPC against maternal nephew of Aman Bhardwaj i.e. Sahil @ Sanjay Kumar, Dheeraju Sharma, Anil Kumar, Dev Chopra, Vicky @ Neeraj Sharma etc. Learned defence counsel has further contended that Dheeraj Sharma was also one of the accused in case FIR no. 940/01, U/s. 307/34 of IPC, PS Mangolpuri, Delhi. It was got registered by Raj Kumar Gupta. So, if Dheeraj Sharma was involved in search of Sanjay Gupta with Raj Kumar Gupta, then certainly either he was showing fake sympathy or was involved with Raj Kumar Gupta in the murder of Sanjay Gupta.
SC No. 01/01/11 23/42
According to the documents received from PS Mussorie, sent by inspector Prithvi Raj Chauhan, nothing was recovered from the personal search of deceased Sanjay Gupta. So, it is not known on what basis PW8 Ritu Gupta received information about lying of dead body resembling Sanjay Gupta from unknown persons because if there was no document in the clothes of deceased Sanjay Gupta, then the said unknown persons could not have come to know about Ritu Gupta to be a person to inform about lying of dead body resembling Sanjay Gupta. Rather, PW8 Ritu Gupta did not admit this fact and has told before the Court that she received information about lying of dead body resembling Sanjay Gupta from PW16 Raj Kumar Gupta, which is contrary to her statement recorded by U.P. Police. In the said statement, copy of which has been filed in the writ petition Ex. D1, she told that Sanjay Gupta was taken forcibly by accused Aman Bhardwaj @ Bobby and Tayyab in Maruti Zen car No. DL3CT4150 from her house, which is entirely missing in her statement given before this Court and she told that she was at Solan and instead of Ritu Gupta, her mother PW7 Vijeta Thakur deposed before the Court that Sanjay Gupta was taken by accused Aman Bhardwaj @ Bobby and Tayyab, but even PW7 Vijeta Thakur has not deposed before the Court that Sanjay Gupta was taken forcibly by both of them.
PW8 Ritu Gupta also told to U.P. Police in her statement that on 23/05/2003, she received a call from PCO No. 01202284606 and 01202678577 about recovery of one dead body from Gang Nahar and description was tallying with Sanjay Gupta. It was also told that some paper was also recovered from the pocket of Sanjay Gupta mentioning his address. So, all these facts are missing in the statement of PW8 Ritu Gupta, as deposed before the Court, and also from the SC No. 01/01/11 24/42 statement of PW16 Raj Kumar Gupta. Even, PW8 Ritu Gupta told to U.P. Police in her statement that the persons, who had made call, had disclosed their names as Mohd. Umar, Nihal Hashmi and Musharraf Mussourie.
This part has not been investigated by Delhi police. If the names were given, the persons should have been traced out and the dead body could have been recovered at the earliest. Whether these statements were sent to Delhi police is also not known. According to the letter of one Chander Prakash, Senior police officer, Ghaziabd, 42 papers were sent to PS Paschim Vihar, but only 28 pages are on record, allegedly sent by U.P. Police and the statements recorded by U.P. Police are not placed on record for the reasons best known to the IO, which shows that somewhere Ritu Gupta was also involved and she was tried to be saved from this case, hence, some documents were concealed.
Learned defence counsel has contended that it has come in the cross examination of PW8 Ritu Gupta that she was in communication with Sh. Satish Chandra, Joint C.P. and had been communicating with Joint C.P. for the inquiry into the murder of her husband Sanjay Gupta. Learned defence counsel has further contended that in the cross examination, PW8 Ritu Gupta has disclosed that she is having mobile phone No. 9810894705, which she had purchased after the death of Sanjay Gupta. Learned defence counsel has further contended that PW8 Ritu Gupta has also admitted that she was having mobile No. 9810644205. so, if she was already having a mobile phone, then why necessity arose to purchase another mobile phone after the death of Sanjay Gupta. Learned defence counsel has further contended that call details of none of the mobile phone of Ritu Gupta were obtained or connected with this case in any manner. SC No. 01/01/11 25/42
According to the deposition of PW8 Ritu Gupta, she stayed in a hotel in the name of Nikita Thakur and had shown her address of Mumbai and also signed the register of the hotel as Nikita Thakur, whereas according to her statement given to U.P. Police, copy of which has been placed with the writ petition Ex. D1, it is clear that she was at Paschim Vihar and had not gone anywhere either to Solan or Shimla or had not come back, as deposed by her, so it seems to be doubtful that she had gone to Solan or Shimla and if she had gone there, then why she did not disclose her Delhi Address and her name as Ritu Gupta. No plausible explanation has been given as to why she gave her name as Nikita Thakur and address of Mumbai, which shows that something was there, which was to be concealed and was connected with the death of Sanjay Gupta.
PW8 Ritu Gupta has admitted in the cross examination that Sanjay Gupta had tried to commit suicide and he was feigning to commit suicide. Once Sanjay Gupta was admitted in Agrasen Hospital, Punjabi Bagh, when he attempted to commit suicide in the year 2002 and he might have attempted to commit suicide by consuming poison. Sanjay Gupta was transferred from Agrasen Hospital to Saroj Hospital due to his misbehaviour with the doctors and this was a case of attempt to suicide. In such circumstances, Sanjay Gupta might have jumped in the Gang Nahar and had sustained injuries, as observed by PW12 Dr. A. Mishra because Sanjay Gupta sustained injuries i.e. hametoma 6 cm. In diameter over the top of skull bluish discolouration present and meninges were torn underneath the hametoma, brain matter lacerated with surrounding hametoma about 350 ml. Or he might have been thrown from the bridge in Gang Nahar. So, it is doubtful whether Sanjay Gupta was murdered or he committed suicide or what was the SC No. 01/01/11 26/42 cause of his death.
Even from the deposition of PW12 Dr. A. Mishra, prosecution has not been able to prove exact time since death as to whether it was three days before or afterwards or prior to that as according to PW7 Vijeta Thakur, Sanjay Gupta had taken Pulav in her house and thereafter according to PW16 Raj Kumar Gupta, Sanjay Gupta had taken Shikanji, but only 100 ml watery fluid was found in the stomach, which shows that Sanjay Gupta must have passed stool and because of which, only 100 ml watery fluid was found in the stomach. According to the postmortem report Ex. PW12/A, if we count the dead body three days old, then time of death come 3.30 p.m. on 23/05/2003, hence, it seems to be unbelievable that since morning of 23/05/2003 till 3.30 p.m., Sanjay Gupta had not taken anything in food. So, even the time since death is not proved in any manner. PW12 Dr. A. Mishra has nowhere deposed that injury, as sustained by Sanjay Gupta, was sufficient to cause death in the ordinary course of nature. Even, it is not known whether the injury could have been sustained by falling from the bridge in Gang Nahar or nature of injury was such that it could be caused by a human being only. PW12 Dr. A. Mishra has further stated in the cross examination that the time of death might be earlier to 23/05/2003, which means that the death could be one or two days earlier to 23/05/2003. So, if doctor i.e. PW12 Dr. A. Mishra himself was not certain about the time since death, then it is not certain as to whether Sanjay Gupta died on 23/05/2003, 24/05/2003 or 25/05/2003 and in such circumstances, accused persons cannot be held guilty only on the fact that lastly Sanjay Gupta was seen with them because if time of death is not certain, then gap between the last seen and the time since death is vital, which ruled out the SC No. 01/01/11 27/42 possibility that there could not be any other person, who had committed crime regarding death of Sanjay Gupta.
PW2 Simmi Divey, who is stated to be the witness of last seen i.e. presence of Sanjay Gupta in H.No. A129, Sector55, Noida, U.P. with accused Aman Bhardwaj, Kapil Sharma and Amit is not helpful to the case of the prosecution in any manner as she has not supported the case of the prosecution that accused persons told her that they had committed murder of Sanjay Gupta, so, they all became tense and left the house.
According to PW4 HC Jai Prakash, he was posted at PS Paschim Vihar. On that day, while he was working as DO from 9.00 a.m. to 5.00 p.m., at about 1.15 p.m., PW8 Ritu Gupta came and lodged missing report about Sanjay Gupta, who had gone with Aman Bhardwaj @ Bobby and Tayyab in Maruti Van No. DL3CT4150 at about 6/7.00 p.m. and had not returned to the house. He recorded her statement vide DD No. 7A, copy of which is Ex. PW4/A. He has also produced original DD register.
After receiving the documents regarding the recovery of dead body of Sanjay Gupta, sent by U.P. Police, before PW1 HC Narender Rana, on 23/07/2003, while he was working as DO from 5.00 p.m. to 1.00 a.m. night, Inspector J.S. Gill, SHO, produced some papers before him, which were received through post from PS Mussorie, U.P., with zero FIR, on the basis of which, he recorded FIR of this case and handed over the copy of FIR and papers to Inspector J.S. Gill for further investigation. Copy of FIR is Ex. PW1/A. He has also produced original FIR register.
PW1 HC Narender Rana has further deposed that copies of FIR were SC No. 01/01/11 28/42 sent to concerned MM and to concerned senior police officers through special messenger, which has been corroborated by PW3 Constable Ravinder, who had delivered the special reports.
PW9 Sheetal Maini has stated that H.no. A37, Sector19, Noida, was in the name of her husband. It was allotted to him in the year 1980. On 01/11/2002, this house was given on rent to Raj Kumar Gupta at the rate of Rs. 6000/ per month and it remained under the tenancy of Raj Kumar Gupta till 31/05/2003. Rent agreement was also executed and photocopy of the allotment letter was also given to the police, copy of which is Ex. PW9/A and it was seized vide memo Ex. PW9/B. To prove the fact that H.No. A129, Sector55, Noida, U.P., was with accused Aman Bhardwaj @ Bobby, PW10 Sant Ram Yadav has been examined. He has stated that in the end of month of January, 2003, H.No. A129, Sector55, Noida, was given on rent through property dealer to Manish Bhardwaj at the rate of Rs. 42,000/ per month and PW10 has identified the said Manish Bhardwaj as accused Aman Bhardwaj present in the court, who was introduced to him by property dealer Ramesh Kumar Sharma. PW10 has further deposed that accused had given him Rs. 42,000/ in cash and gave Rs. 84,000/ as security for two months. Rent agreement was executed, which is Ex. PW10/A. It was seized vide memo Ex. PW10/B. PW10 has further deposed that as usual, when he had come to collect the rent at Kothi, he found it vacant and police apprehended him. Police brought 4/5 persons at his Kothi. Accused Aman Bhardwaj @ Bobby was also one of them. The other accused persons were not known to him. So, regarding the identity of accused Mohd. Tayyab and Kapil Sharma, PW10 has not supported the SC No. 01/01/11 29/42 case of the prosecution and has also not further supported the case of the prosecution that accused persons pointed out the place, where they had committed murder vide Ex. PW10/C, Ex. PW10/D and Ex. PW10/E, but has admitted that on 27/07/2003, accused Aman Bhardwaj, Kapil Sharma and Mohd. Tayyab were brought by the police at Kothi No. A129, Sector55, Noida and has denied that he was standing outside the Kothi. So, except the fact that H.No. A129, Sector55, Noida, was taken on rent by accused Aman Bhardwaj, prosecution has not been able to prove any other fact from the deposition of this witness.
PW11 Bhisam Singh, who is brother of PW10 Sant Ram Yadav, has not supported the case of the prosecution in any manner about the disclosure of accused persons regarding committing murder of Sanjay Gupta.
To prove ownership of Maruti Zen Car No. DL3CT4150, PW5 Lokesh Bedi has been examined and he has also been examined as PW22 again. He has stated that he was the registered owner of Maruti Car No. DL3CT4150. On 25/04/2003, he had given the said car on finance basis to accused Aman Bhardwaj. On, 11/09/2003, he had given photocopy of RC of this car to the IO, which was taken into possession vide memo Ex. PW5/A. Deliver letter is Ex. PW5/B and the copy of RC is Ex. PW5/C. While deposing as PW22, this witness Lokesh Bedi has deposed that he had taken this maruti car on superdari. He has produced the same before the court, which is Ex. PX2 and has also produced the photographs and negatives of the same as Ex. PX2/A, Ex.PX2/B, Ex. PX2/C and Ex. PX2/D. According to deposition of PW5 Lokesh Bedi, the car was financed to accused Aman Bhardwaj, but no document has been produced to prove the fact SC No. 01/01/11 30/42 that this maruti car was financed to accused Aman Bhardwaj as the documents regarding hire purchase agreement, indemnity bonds, affidavits, third party claim forms etc. have not been produced by the witness before the Court nor these were given to the police in any manner. No other documents has been produced i.e. ration card or driving licence of buyer i.e. of accused Aman Bhardwaj. So, prosecution has not been able to prove the fact that Maruti Car No. DL3CT4150 was financed to accused Aman Bhardwaj on 25/04/2003.
Accused persons were arrested by the officials of Special Staff. In this respect, PW24 Inspector Raj Kumar has stated that on 25/07/2003, he was posted as SI in Special Staff, Southwest District, Dhaula Kuan. On that day, he received secret information that one Manohar Bhardwaj @ Aman, who was involved in the trade of prostitution and had also committed murder of one of his associates Akash @ Sanjay Gupta, will come near Vasant continental, Vasant Vihar at about 2.30 p.m. with his other associates. This information was recorded in DD register. Thereafter, PW24 Inspector Raj Kumar alongwith SI Ravinder Tyagi, PW15 ASI Charan Singh, Constable Raja Ram and other staff reached near Continental Hotel. There, PW24 asked some public persons to join the raiding party, but none agreed.
PW24 has further deposed that he deputed the raiding team at their respective places and at about 3.00 p.m., one Esteem Car No. MH04Y4077 came from the side of Munirka and stopped outside the hotel near the parking. One white colour Maruti Zen car without any number plate also came behind the Maruti Esteem Car and stopped behind it. At the pointing of secret informer, the person, who was sitting on the driving seat of the Maruti car, was apprehended by him and the person, sitting behind driver seat, was apprehended by PW15 ASI SC No. 01/01/11 31/42 Charan Singh. The person, who was sitting in the driving seat of Maruti Zen, was apprehended by SI Ravinder Tyagi with the help of Constable Raja Ram.
PW24 has further deposed that he came to know the name of the person, who was apprehended by him as accused Mohd. Tayyab and the name of the person, who was apprehended by ASI Charan Singh as accused Manohar Bhardwaj @ Aman. He also came to know about the name of the person, who was apprehended by SI Ravinder Tyagi as accused Kapil Sharma @ Monu.
PW24 has further deposed that he interrogated all the three accused persons and they made disclosure statements regarding murder of one Akash Gupta. So, he arrested them U/s. 41.1 Cr.P.C. and their personal searches were conducted. As the murder, which had taken place, was reported to be of PS Paschim Vihar, so, he informed at PS Paschim Vihar. Both Maruti Esteem car and Maruti Zen car were taken into possession vide seizure memos Ex. PW15/D and Ex. PW15/E. PW24 has further deposed that on the next day, Inspector J.S. Gill came to him and he handed over the photocopies of kalandara, disclosure statements, personal search memos to him i.e. disclosure statement of accused Mohd. Tayyab Ex. PW15/A, of accused Manoj Bhardwaj @ Aman Ex. PW15/B and that of accused Monu @ Kapil Sharma Ex. PW15/C. Kalandara is Ex. PW24/A, which was prepared and signed by PW24. Copy of DD entry No. 12 dated 25/07/2003 recorded regarding arrest of accused persons is Ex. PW24/B. Personal search memo of accused Monu @ Kapil Sharma is Ex. PW24/C, of accused Manohar Bhardwaj @ Aman is Ex. PW24/D and that of accused Mohd. Tayyab is Ex. PW24/e. PW24 has also identified the accused persons before the SC No. 01/01/11 32/42 court and the identity of vehicles have not been disputed.
Similarly, PW15 ASI Charan Singh has also identified the accused persons before the court as the same persons, who were arrested by them on 25/07/2003.
On 26/07/2003, PW21 Inspector B.R. Sankla was posted as SI at PS Paschim Vihar and he joined the investigation with IO Inspector J.S. Gill, SHO, PS Paschim Vihar, who had already expired. So, he has identified the writing and signatures of Inspector J.S. Gill. PW21 has further deposed that he alongwith IO reached at SouthWest, Special Staff office, Dhaula Kuan, where accused Aman Bhardwaj @ Bobby, Kapil Sharma and Mohd. Tayyab were arrested by the special Staff on 25/07/2003 vide DD No. 12A U/s. 41.1 Cr.P.C. All the accused were interrogated separately in his presence by the IO. Accused Aman Bhardwaj was arrested vide memo Ex. PW21/A. Accused Mohd. Tayyab was arrested vide memo Ex. PW21/B and accused Kapil Sharma was arrested vide memo Ex. PW21/C. Accused Aman Bhardwaj @ Bobby also made disclosure statement vide Ex. PW21/D. Accused Mohd. Tayyab made disclosure statement vide Ex. PW21/E and accused Kapil Sharma made disclosure statement vide Ex. PW21/F. PW21 has identified the signatures of Inspector J.S. Gill on these documents.
PW21 has further deposed that on 27/07/2003, he alongwith IO joined the investigation of this case and all the above three accused persons were taken out from the lockup. Constable Sukhbir and Constable Sunil also joined and they all reached at Dasna Bridge, Gang Nahar, Ghaziabad, U.P. in a private vehicle, where accused persons pointed out the place, where in the early morning of 22/23.05.2003, they had thrown dead body of Sanjay Gupta in Gang Nahar vide SC No. 01/01/11 33/42 pointing out memos Ex. PW21/G to Ex. PW21/J. Thereafter, the police party reached at Dera Jal, PS Mussorie, District Ghaziabad, U.P. alongwith the accused persons, where dead body of Sanjay Gupta was recovered and then came back to Sector55, Kothi No. A129, Noida, where Sant Ram, owner of the house, was found present. PW21 has further deposed that all the three accused persons pointed out a room, where they had committed murder of Sanjay Gupta in the intervening night of 22/23.05.2003 vide Ex. PW10/C, Ex. PW10/D and Ex. PW10/E i.e. of Kapil Sharma, Aman Bhardwaj and Mohd. Tayyab. PW21 has further deposed that IO had also prepared site plan at the pointing of accused Aman Bhardwaj of the place, where dead body was thrown vide memo Ex. PW21/K and site plan of the place of murder was also prepared vide Ex. PW21/L. Rent agreement was collected and was seized vide memo Ex. PW10/B. Rent agreement is Ex. PW10/A. PW21 has further identified Car No. MH4Y4066 as Ex. PX1 and Maruti Zen car No. DL3CT4150 as Ex. PX2.
PW21 has further deposed that on 26/08/2003, he again joined investigation of this case with IO Inspector J.S. Gill and alongwith one draughtsman SI Manohar Lal, reached at PS Mussorie, District Ghaziabad, U.P., where they met with SHO/In charge Inspector Prithvi Singh Chauhan, who also joined the investigation and they reached at the place, where dead body of Sanjay Gupta was recovered, where on the pointing of Inspector Prithvi Singh Chauhan, draughtsman SI Manohar Lal took rough notes and measurements. Inspector Prithvi Singh Chauhan was left at PS Mussorie and they came back to Kothi No. A129, Sector55, Noida, where on the pointing of Inspector J.S. Gill, SC No. 01/01/11 34/42 draughtsman SI Manohar Lal took measurements and prepared rough notes and they came back.
PW20 SI Manohar Lal, draughtsman, has corroborated these facts and has deposed the same facts as of PW21 SI B.R. Sankla and has further deposed that he prepared site plans, which are Ex. PW20/A to Ex. PW20/C. Thereafter, he destroyed the rough notes and his statement was recorded by the IO. PW20 has not been cross examined on any aspect by the counsel for accused persons, so, his testimony is unrebutted and unshaken.
PW21 SI B.R. Sankla has further deposed that on 28/08/2003, as per the directions of IO, Maruti Esteem Car No. MH04Y4077 was sent to FSL, Malviya Nagar, for examination vide RC No. 149/21. He deposited the same with FSL, Malviya Nagar and handed over the receipt on RC to MHC(M). On 10/09/2003, he collected FSL result, which was handed over to the IO, which are Ex. PW19/A and Ex. PW19/B. PW19 Dr. Rajinder Kumar, SSO, Biology, FSL, Rohini, has stated that on 28/08/2003, Maruti Esteem Car was received in FSL for examination in this case. Blood was detected on Maruti Esteem car and was found to be of human origin. Blood group could not be ascertained as no reaction was observed in relation to A,B,O group. His detailed reports in this regard are Ex. PW19/a and Ex. PW19/B. This witness has not been cross examined in any manner by learned defence counsel, hence, his testimony is unrebutted and unshaken.
According to FSL report Ex. PW19/A, blood was detected on Ex. 1 i.e. Maruti Esteem Car No. MH04Y4077, but is not mentioned as to from which part of the car, blood was detected. In report Ex. PW19/A, it is not mentioned as to SC No. 01/01/11 35/42 whether this blood was human blood or was having any group like A,B or O. To my mind, this was a futile exercise because at the time of conducting postmortem on the body of Sanjay Gupta, PW12 Dr. A. Mishra neither seized the wearing clothes of the dead body nor had taken blood sample of Sanjay Gupta, so, even otherwise, it would not be possible for the prosecution to connect the blood, which was found in Maruti Esteem car No. MH04Y4077 with the blood of Sanjay Gupta.
PW23 Sh. Sanjay Dole, Deputy RTO, Kalyan, District Thane, Mumbai, Maharashtra, has stated that on 24/09/2003, he was posted as Assistant RTO in Thane District. On that day, ASI B.R. Sankla came to him and made inquires about Maruti Esteem Car No. MH04Y4077 by moving an application. He made endorsement on the same and asked to collect the information from the concerned Clerk. According to the record brought by him, the vehicle in question was transferred in the name of Kapil Sharma on 21/05/2002 and was still in the name of Kapil Sharma. The copy of the record was taken into possession by the IO vide memo Ex. PW21/P, which was signed by him and PW23 has also proved his endorsement made on letter Ex. PW21/Q. This witness has also not been cross examined by learned defence counsel for the accused persons, hence, his testimony is unrebutted and unshaken.
PW6 HC Phool Kanwar has stated that on 18/08/2003, he was posted as Malkhana Muharrar at PS Paschim Vihar. On that day, PW21 SI B.R. Sankla had brought one Maruti Zen car of white colour, without any registration number place and one Maruti Esteem Car No. MH04Y4077 from PS Vasant Vihar and deposited the same with him in the malkhana. He made entry at Srl. No. 3440 in SC No. 01/01/11 36/42 register No. 19.
PW6 has further deposed that on 28/08/2003, Esteem car was sent to CFSL, Malviya Nagar through PW21 SI. B.R. Sankla vide RC No. 149/21/03. On 10/09/2003, PW21 brought the Esteem car back from CFSL, Malviya Nagar and deposited the same in PS Paschim Vihar.
PW6 has further deposed that on 09/10/2003, Maruti Zen car was given on superdari to one Lokesh Bedi i.e. PW5 as per the order of learned Metropolitan Magistrate and he made relevant entry in this respect, which is Ex. PW6/A. Witness has also produced original register No. 19.
According to deposition of PW24 Inspector Raj Kumar, Maruti Zen car was seized without number plate and in the seizure memo Ex. PW15/E, engine number and chasis number of the Maruti Zen car were mentioned, but PW21 Inspector B.R. Sankla has nowhere disclosed as to when on the basis of these engine number and chasis number, particulars of Maruti Zen car were taken out and owner Lokesh Bedi was traced out. So, the documents regarding financing the Maruti car to accused Aman Bhardwaj @ Bobby seems to be fabricated one.
Accused Aman Bhardwaj @ Bobby has stated in his statement recorded U/s. 313 Cr.P.C. that he was called in the PS on 21/07/2003 and was kept there for four days. He was not produced before the Court concerned during these days. He did not make any disclosure statement. Thereafter, he was produced before the Court of learned Metropolitan Magistrate. Accused has also denied that Maruti Zen Car belongs to him. Accused Aman Bhardwaj has further stated that he was interrogated at PHQ in presence of ACP Sanjeev Yadav and Joint CP Sh. Satish Chandra and PW Raj Kumar Gupta was also present at that SC No. 01/01/11 37/42 time. Accused Aman Bhardwaj @ Bobby has further stated that his signatures were obtained on blank papers and a false case was got registered against him by Raj Kumar Gupta.
Similarly, accused Mohd. Tayyab has stated that he was detained for 56 days and his signatures were obtained on some blank papers. He did not make any disclosure statement. He was working as paid employee of motor garage at Noida, Sector18 and accused Aman Bhardwaj used to bring his car for repair to him. Raj Kumar Gupta also used to come for repair of his car and when he asked him to become a false witness against accused Aman Bhardwaj, he refused, so, he was falsely implicated in this case.
Accused Kapil Sharma has stated that his arrest is matter of record and he has been falsely implicated in this case.
According to PW5 Lokesh Bedi, Maruti Zen car No. DL3CT4150 was financed to accused Aman Bhardwaj @ Bobby on 25/04/2003, whereas according to PW24 Inspector Raj Kumar, accused Aman Bhardwaj was apprehended and this Maruti Zen car was seized on 25/07/2003 i.e. after about three months, so, it does not seem to be probable that if accused Aman Bhardwaj had got financed this Maruti Zen car from PW5 Lokesh Bedi, then why he will move in the said Maruti Zen car without having number plate on the same. No plausible reason has been brought on record as to why said Maruti Zen car if was got financed by accused Aman Bhardwaj, was being driven without any number plate, as deposed by PW24 Inspector Raj Kumar.
From the cross examination of PW24 Inspector Raj Kumar, it is clear that signatures on some blank papers were obtained by the police of the accused SC No. 01/01/11 38/42 persons and they were converted into their disclosure statements, otherwise, there is no reason for two of the pages of disclosure statement of accused Mohd. Tayyab Ex. PW15/A seems to be of accused Mohd. Tayyab, but last half page of Ex. PW15/A seems to be of accused Kapil Sharma. Similarly, two of the pages of disclosure statement Ex. PW15/C of accused Kapil Sharma seems to be of Kapil, but last half page seems to be of accused Mohd. Tayyab and if these disclosure statements were made and recorded by the police, then certainly, such type of discrepancies could not have occurred and these have occurred only as the disclosure statements have been fabricated by the police on the papers, on which, signatures of accused persons were taken.
In view of above discussion, prosecution has not been able to bring on record any evidence or circumstance to prove the fact that accused persons entered into a criminal conspiracy to kidnap and murder Sanjay Gupta. Accordingly, all the three accused,namely, Aman Bhardwaj @ Bobby, Kapil Sharma @ Monu and Mohd. Tayyab are acquitted for the offence U/s. 120B of IPC.
From the depositions of PW7 Vijeta Thakur, PW8 Ritu Gupta and PW16 Raj Kumar Gupta, prosecution has not been able to prove in any manner that Sanjay Gupta was kidnapped by the accused persons from the house of PW7 Vijeta Thakur on 22/05/2003 at about 6 or 7.00 p.m. as none of the witness inspire any confidence in this respect. They have not deposed that Sanjay Gupta was taken forcibly or was induced or was abducted in any manner. Even, it has come in the evidence of PW16 Raj Kumar Gupta that he received a call from one Monu that Sanjay Gupta was kidnapped by them, but this fact was not disclosed to the police by PW16 Raj Kumar Gupta at any time, hence, the same could not be SC No. 01/01/11 39/42 investigated. It is also not disclosed as to who was Monu and from which number he had made a call. So, there is no linking evidence to connect the same with the accused persons in any manner. Accordingly, prosecution has miserably failed to prove offence U/s. 364 of IPC read with Section 120B of IPC, for which, all the three accused persons,namely, Aman Bhardwaj @ Bobby, Kapil Sharma @ Monu and Mohd. Tayyab are acquitted.
From the depositions of the witnesses, prosecution has not been able to prove beyond reasonable doubts except the fact that lastly Sanjay Gupta had gone with accused Aman Bhardwaj @ Bobby and Mohd. Tayyab from the house of PW7 Vijeta Thakur and thereafter they were seen lastly at the house of PW16 Raj Kumar Gupta at about 9/9.30 p.m. and as the dead body was recovered in the jurisdiction of Ghaziabad, so, postmortem was also got conducted from PW12 Dr. A. Mishra in Ghaziabad, UP. From his deposition, prosecution has not been able to prove the time since death and also cause of death. So, it is not certain as to when Sanjay Gupta had died.
It has been held in Criminal Appeal No. 825/2011 titled as Ashiq Ahmed @ Raju V. The State (NCT of Delhi) that:
"Besides, the prosecution also is under the burden to prove that it was only the accused and nobody else who could have been the perpetrator of the crime. Again, the circumstances should be of a conclusive nature and tendency as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must SC No. 01/01/11 40/42 be such as to show that within all human probability the act must have been done by the accused. (Hanumant Govind Nargundkar Vs. The State of Madhya Pradesh AIR 1952 SC 343; Sharad Birdhichand Sarda V. State of Maharashtra, 1984 (4) SCC 116)."
"As far as the last seen circumstance is concerned, the Court have generally commented with these inherently weak kind of case and the criminal Court has to be cautious in accepting these to be the primary or sole basis to convict the accused of a crime. (see Bodh Raj @ Bodha & Ors. V. State of Jammu & Kashmir, 2002 (8) SCC 45: Ramreddy Rajeshkhanna Reddy & Anr. V. State of Andhra Pradesh, 2006 (10) SCC 172: State of U.P. V. State, 2005 (3) SCC 114)."
"It has been acknowledged that two important considerations governed by the Court while concluding that the accused is guilty (1) that the time gap between the disappearance of the deceased and the discovery of the dead body or the time of death has to be extremely narrow so as to eliminate the scope of anyone other than the accused being the perpetrator of the crime: (2) the possibility of some else committing the crime to be eliminated altogether. "
So, merely last seen evidence of PW7 Vijeta Thakur and PW16 Raj Kumar Gupta is not sufficient to held guilty the accused persons particularly accused Aman Bhardwaj @ Bobby and Mohd. Tayyab for murder of Sanjay Gupta because the time since death is not so extremely narrow as to eliminate the scope of anyone other than the accused being the perpetrator of the crime because Sanjay Gupta was lastly seen with accused Aman Bhardwaj and Mohd. Tayyab on 22/05/2003 and his dead body was recovered on 26/05/2003. The prosecution has also not been able to connect the accused persons with any other circumstantial SC No. 01/01/11 41/42 evidence. The place of recovery of dead body and of murder were already within the knowledge of the police, so, pointing of the same by the accused persons is of no consequence and no new fact was discovered regarding the murder of Sanjay Gupta by the police from the disclosure statements and pointing of accused persons. Accordingly, prosecution has not been able to prove offence U/s,. 302 of IPC read with Section 120B of IPC against all the three accused persons,namely, Aman Bhardwaj @ Bobby, Kapil Sharma @ Monu and Mohd. Tayyab, for which, they are acquitted.
The prosecution has also not been able to prove from the depositions of the witnesses, as discussed above, that accused persons had disposed off the dead body of Sanjay Gupta in Dera Jal, Gang nahar, Ghaziabad, U.P., as there is no eye witness to this effect that they had seen the accused persons throwing the dead body in the canal at any time. The prosecution has also not been able to connect Car No. MH04Y4077 with the fact that in the said car, dead body of Sanjay Gupta was removed and was thrown in Gang Nahar, Dera Jal, Ghaziabad, U.P.. Accordingly, it has not been proved that the accused persons disposed off the dead body of Sanjay Gupta and destroyed the evidence of the murder with the intention to screen themselves from the punishment of the same. Hence, all the three accused persons,namely, Aman Bhardwaj @ Bobby, Kapil Sharma @ Monu and Mohd. Tayyab are acquitted for the offence U/s. 201 of IPC read with Section 120B of IPC.
Announced in Open Court on (Virender Kumar Goyal)
dated 13th of January, 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
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