Delhi District Court
State vs . on 18 January, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIONS JUDGE02 (NORTH):DELHI.
S.C. 67/10
Case I.D. No.02401R0394312010
State
Vs.
(i)Krishan Kumar @ Monu
Son of late Sh. Arjun Singh
R/o 583, Type1 Delhi Admn. Flats
Gulabi Bagh
Delhi.
(ii)Anil Kumar
Son of Shiv Dayal
R/o 561, Type1 Delhi Admn. Flats,
Gulabi Bagh
Delhi.
FIR No.: 31/10
PS: Gulabi Bagh
U/S 302/201/34 IPC.
Date of Institution:21.08.10
Date of reserving Judgment:3.1.12 and 13.1.12
Date of pronouncement:18.1.12
JUDGMENT
In the present case, charge has been framed against accused Krishan Kumar and Anil Kumar in respect of offences U/S 302 and 201 read with Section 34 IPC. The allegations in the charge are that on the Session Case No.67/10 1/50 2 night of 14/15.5.10 at unknown time, near Park, Gate No.1, Delhi Admn. Flats, Gulabi Bagh, Delhi, they in furtherance of their common intention committed the murder of Bhupinder Singh. It has been further alleged that on the above said date, time and place, they in furtherance of their common intention in order to screen themselves from legal punishment caused the evidence of murder to disappear by throwing the deadbody of deceased Bhupinder Singh near Gate No.1 Park, Delhi Admn. Flats, Gulabi Bagh, Delhi.
2 Both accused pleaded not guilty to the said charge and claimed trial.
3 To prove its case prosecution has examined 29 witnesses. They are Sh. Prahlad Singh Chauhan(PW1), Sh. Kulvinder Singh(PW2), Sh. Jagtar Singh(PW3), Ms. Tamanna(PW4), Smt. Anju Gulati(PW5), Sh. Mukesh(PW6), Sh. Umit Singh(PW7), Sh. Vishal Gaurav(PW8), Sh. M.N. Vijayan(PW9), SI Davender(PW10), Ishrar Babu(PW11), Dr. S.K. Gupta(PW12), Sh. Sheo Raj Singh(PW13), HC Arun(PW14), HC Sonu Kaushik(PW15), HC Prakash(PW16), Dr. S. Lal(PW17), Sh. Jyotish Maharana (PW18), Ct. Narender Kumar (PW19), ASI Krishan Kumar(PW20), Ct. Jitender Singh(PW21), Ct. Vijay Kumar (PW22), HC Rajender Kumar (PW23), SI Sahib Singh (PW24), Sh. Vishnu Sharma(PW25), HC Shambhu Dayal(PW26), Sh. Tarun Yogesh(PW27), Session Case No.67/10 2/50 3 HC Ram Kumar(PW28) and Inspector Dharambir Singh Dagar (PW29). 4 Statements of accused U/S 313 Cr.P.C have been recorded, wherein they have denied the allegations of prosecution. They have submitted that they are innocent. Accused Krishan has submitted that a false case was got registered by Tamanna U/S 354 IPC against him and he had been acquitted in that case. He was taken by the police from his house. The PWs are false and planted ones.
5 Accused Anil has submitted that PW Umit Singh is a false and planted witness. His conduct is unnatural. He did not disclose the facts to the father of deceased and police. PW Tamanna and her family members have not stated even a single word against him(accused Anil). PW Tamanna has deposed that she does not know him. He never met Tamanna and did not know her. He never met Umit Singh and deceased on the relevant date. He never made any disclosure statement to police. He was forced to put his signature on different pages by the I.O at P.S. Subsequently, those papers were manipulated by him. Nothing was recovered at his instance. The mobile phone was not owned or used by him. The mobile phone was not recovered from him. The mobile connection was in the name of one Anil Kumar, S/o Chhotey Lal. No public witness has identified him. PW Umit Singh has identified him at the instructions of I.O. He has been falsely implicated in the case. The Session Case No.67/10 3/50 4 investigation in this case is tainted and biased. The alleged recovery was planted at PS. 6 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State.
7 Ld. Counsel for accused Krishan has prayed for acquittal of accused by submitting that prosecution has failed to prove the motive behind the murder. Neither any photograph of engagement between the deceased and PW Tamanna nor any date and month of engagement have been told by the PWs. PW Uneet Singh is not trustworthy and reliable. He has made improvements in his testimony. His conduct is not free from doubts. Testimony of Dr. S. Lal cannot be believed as no weapon of offence has been seized by the I.O. The knife allegedly recovered from the ganda nala is planted upon the accused, as no public witness has been joined by the police at the time of recovery of knife. The house of Raj Kumar, brotherinlaw(Jija)of accused Krishan was searched without any search warrant.
8 Ld. Counsel for accused Anil has also prayed for acquittal of accused by submitting that material witness Kulvinder Singh, Tamanna and Anju did not depose anything against accused Anil. PW Umit Singh gave contradictory statement in the court, therefore, his testimony cannot be believed. The call details proved on record by the prosecution is also Session Case No.67/10 4/50 5 in favour of accused Anil. No recovery of mobile phone has been affected from accused Anil. The purchase bill of mobile phone has not been duly proved by the prosecution.
9 On the other hand, Ld. Addl. P.P has submitted that prosecution has proved its case beyond reasonable doubt as all the material witnesses have supported the prosecution case. 10 In the present case, there is no eye witness to the offences, allegedly committed by the accused persons. The prosecution case rests upon the circumstantial evidence.
11 "In Arun Bhanudas Pawar V. State of Maharashtra 2008(2)C.C Cases(SC) 261 it was held by Hon'ble Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following test:
(i) the circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii)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
(iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the 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."Session Case No.67/10 5/50 6
12 In the present case, one of the incriminating circumstances against the accused is that PW7 Umit Singh has lastly seen the deceased in the company of accused persons.
13 PW7 has deposed that Bhupender Singh was his friend. He(PW7) and Bhupender Singh used to do exercise in Gym. Bhupender was engaged to Tamanna about one or two months, prior to his murder. Accused Anil and Krishan Kumar alias Monu used to come in gym wali gali and used to threat his friend Bhupender. Accused Monu used to say to deceased that 'TAMANNA SE MEIN SHADI KARUNGA, TU PEECHE HAT JA'. Accused Anil Kumar and Krishan Kumar alias Monu are present in court. His friend Bhupender told accused Krishan Kumar that whatever were his relations with Tamanna, he (accused Krishan Kumar) should forget her. He (deceased)had engaged with Tamanna and would marry with her as his father had performed roka with Tamanna. He (PW7) also intervened twothree times and made compromise between his friend Bhupender and accused Krishan Kumar and Anil Kumar. Accused Krishan Kumar was residing in Gulabi Bagh. He came to know from his friend Bhupender that one FIR of molestation has been registered against accused Krishan Kumar alias Monu by Tamanna for molestation. 14 He has further deposed that on 14.05.10, he was present at his house. At about 8/8:15 PM, his friend Bhupender came to his house. Session Case No.67/10 6/50 7 He was perplexed . He told him that accused Anil and accused Krishan Kumar alias Monu were harassing his fiancée Tamanna. He requested him to accompany him. Bhupender further requested him that they should go to accused persons and let them understand. He agreed for same. Thereafter, he and his friend Bhupender left on his scooter. He was driving the scooter. Bhupinder made a call to accused Krishan Kumar alias Monu. Accused Monu told Bhupender to come at Gate No. 1, Delhi Admn. Flats, Gulabi Bagh. They reached at Gate No. 1, Delhi Admn. Flats, Gulabi Bagh, where accused Krishan Kumar alias Monu and Anil came. Both accused started abusing and hathapai [scuffling] with Bhupender Singh. He intervened and separated them from Bhupender. He advised accused Krishan Kumar that 'JAB BHUPENDER KE PITAJI SHADI KE LIYE AGREE HAIN TOH TU BEECH MAIN KYON AA RAHA HAI, INKO SHADI KAR LENE DE, but accused Krishan Kumar alias Monu told 'SHADI TOH MAIN HI KARUNGA'. Accused persons quarrelled with Bhupender and abused him. This altercation continued for some time. Thereafter, accused Krishan Kumar alias Monu and Anil Kumar took Bhupender inside the Flats of Gulabi Bagh. Accused persons told him that 'HUM AAPAS MEIN BAAT KARENGE'. He asked accused persons that he would also accompany them and they should talk in his presence. Session Case No.67/10 7/50 8 But accused persons refused him to accompany them and said that he should wait for 2025 minutes there. His friend Bhupender also told that he should wait there. He waited for around 30/45. Accused persons and his friend Bhupender did not return. Thereafter, he came back to his home. On the next day, he came to know from the father of Bhupender that Bhupender has been murdered.
15 He (PW7)has further deposed that on 15.05.10 he alongwith the father of Bhupender came to Gulabi Bagh. Police met him at the spot. He told to them the same facts, which he has deposed. Police did the investigation at the spot. The dead body of Bhupender was sent for postmortem. He came back to P.S in the evening. Police recorded his statement. On 25.05.10 he joined the investigation of this case. On that day, he came to know from the father of Bhupender that the persons, who committed murder of Bhupender, have been arrested by the police and they were in P.S. Gulabi Bagh. He alongwith Sh. Kulwinder Singh, father of Bhupender, came to P.S.Gulabi Bagh. SHO was busy. They waited for 1015 minutes. SHO called them inside his room. He saw that accused Krishan Kumar alias Monu and Anil Kumar were in police custody in the room of SHO. He identified both the accused persons and told the police that he had seen Bhupender last time with those two accused persons. Police recorded his statement.
Session Case No.67/10 8/50 9 16 In crossexamination by ld. Counsel for accused Anil, PW7 has deposed that his statements were recorded in this case by the I.O on 15.5.10 and 25.5.10 at PS Gulabi Bagh. The father of Bhupender made a call on his mobile Phone No.8800178071, which was kept at his house and told that Bhupender had been murdered. He had no personal mobile number. He works at a readymade garments shop in Gandhi Nagar. He had been knowing deceased Bhupender for the last five/seven years. He had close friendship with deceased. The distance between his house and that of deceased is about 1 KM. He used to meet the deceased either at gym and some time at other place, whenever there was holiday. The gym is situated in Seelampur. He reached PS Gulabi Bagh alongwith Kulvinder Singh at about 8.45 AM or 9.00 AM. He reached the park at abut 10.30 AM, where the deadbody of Bhupender was lying. He saw the deadbody of Bhupender. Since receiving the information about the death of Bhupender, he and father of deceased remained together till the evening. They remained at the spot for about one and half hours. He told the father of Bhupender that on the night of 14.5.10 Bhupender was with him. The police officers met them at the PS Gulabi Bagh. Police officers told them that the dead body of Bhupender was lying in the park. They reached the spot, where dead body was lying. They came back to the police station from the spot as police officials brought the deadbody at Session Case No.67/10 9/50 10 PS Gulabi Bagh. During his stay at the spot, police officials did not enquire from him regarding this case. In his presence, Kulvinder did not tell the police that he (PW7)knew about the facts of the case. He did not disclose any facts to any police officers, when he remained present at the spot. His statement was recorded at about 5.00 PM/5.30 PM. He has denied that he did not meet the police in connection with present case after 15.05.10. He was called by police on 25.05.10. He had stated I.O in his statement dated 15.05.10 that accused Anil and Krishan Kumar @ Monu used to come in gym wali gali and used to threat his friend Bhupender (Confronted with statement Ex. PW7/DA, wherein it is not so recorded). He had stated to the I.O in his statement that accused Monu used to say that 'Tamanna se shadi karunga, tu peeche hat ja'. (Confronted with statement Ex. PW7/DA wherein it is not so recorded). He had stated to I.O in his statement that his friend Bhupender told accused Krishan Kumar that whatever his relation was with Tamanna, now he should forget her. (Confronted with statement Ex. PW7/DA, wherein it is not so recorded). He does not remember whether he had stated to I.O in his statement that his friend Bhupender stated that he had engaged with Tamanna and would marry with Tamanna as his father has engaged him with Tamanna . (Confronted with statement Ex. PW7/DA wherein it is not so recorded). He does not remember whether he had Session Case No.67/10 10/50 11 stated to I.O in his statement that accused Krishan Kumar was residing in Gulabi Bagh. (Confronted with statement Ex. PW7/DA wherein it is not so recorded). He has stated to I.O in his statement that when on 14.05.10 his friend came to his house, he told him that accused Krishan Kumar @ Monu were harassing his fiancee Tamanna. (Confronted with statement Ex. PW7/DA, wherein the words 'harassing his fiancee Tamanna' are not mentioned). He has stated to I.O that when his friend requested him to accompany him, he agreed for the same. (Confronted with statement Ex. PW7/DA wherein the words 'I agreed for the same' are not recorded). He does not remember whether he had stated to I.O that accused Monu told Bhupender to come at gate No. 1, Delhi Admn. Flats . (Confronted with statement Ex. PW7/DA wherein it is not so recorded). He does not remember whether he had stated to I.O in his statement that he advised accused Krishan Kumar that 'Jab Bhupender ke pitaji shadi ke liye agree hain, toh tu beech mein kyon aa raha hai, inko shadi kar lene de'. (Confronted with statement Ex.PW7/DA wherein the above fact is not mentioned). He has stated to I.O in his statement that his friend Bhupender told that he should wait there and he waited for about 3045 minutes. (Confronted with statement Ex. PW7/DA, wherein it is not so recorded).
Session Case No.67/10 11/50 12 17 He has further deposed that he cannot tell the exact date and month on which engagement of Tamanna and Bhupender took place. He is not using any mobile phone. Vol. His brother is using the same. No landline phone is installed at his house. He himself had not provided the mobile number to father of Bhupender. Bhupender never told him that he had given the mobile number to his father. He has denied that he saw accused Anil for the first time in P.S. He has volunteered that he saw accused Anil for the first time in Gymwali gali. Bhupender was not his close friend. He has volunteered that he came to know him as he used to accompany him to Gym. The deceased Bhupender did not disclose him about his personal affairs. He has volunteered that he (deceased)told him about his engagement with Tamanna. He himself never interfered or advised Bhupender in any of his personal matters. On the day of incident, he(deceased) came back to his house at about 7/7:30 PM. Before leaving house he (PW7)did not tell to any of his family members as to where he was going. He has volunteered that he told his mother that he would be back within half or one hour. He (PW7) told his mother that he was going with his friend. Before leaving for Gulabi Bagh, he or Bhupender did not visit the house of Bhupender and nobody from his family was informed that they were going to Gulabi Bagh. He has denied that there is no scooter at his house. The registration number of the scooter is Session Case No.67/10 12/50 13 DL7S9835. When he alongwith Kulvinder reached the spot, the dead body of Bhupender was lying. Kalu and Mintu, the brothers of deceased Bhupender were also with them. They remained at the spot for about one/two hours. In his presence, the police had lifted blood from the spot and also conducted other proceedings and writing work was also conducted. At the spot, he did not disclose to the father of deceased or any police official that he had visited Gulabi Bagh area on last night with Bhupender. He has volunteered that he told this fact, later on at about 4:00/5:00 PM to the father of deceased, who further informed the police. He might have left his house alongwith Kulvinder, father of deceased on 15.05.10 at about 8:30/9:00 AM and might have reached the spot within half an hour. From the spot, he went to PS, where he might have stayed upto one hour and the dead body of deceased was sent for postmortem examination. On the way, there was a conversation between him and Kulvinder, father of deceased, when they were coming to Gulabi Bagh from the house of Bhupender. During the said conversation, he did not tell father of Bhupender regarding the incident of last night. He has volunteered that by that time it was not confirmed that it was really Bhupender, who had been murdered. When, Bhupender went alongwith accused persons, he (PW7)was asked to wait at the gate. During that waiting period, he did not contact Session Case No.67/10 13/50 14 Bhupender on his mobile phone as to where he was. He has volunteered that he was not remembering his phone number as the same was noted down in his diary or some paper, which were not in his possession at that moment. He does not remember the dates and months, when he intervened and settled the dispute between accused persons and Bhupender, however, once it was near Metro Station, Seelampur and at other time at Gymwali Gali, Seelampur. He has denied that on 14.05.10, when fight between Bhupender and accused persons was going on, he did not intervene. On 14.05.10, he reached his house at about 10/10:30 PM. He has denied that no document was prepared by police in his presence. He has denied that he did not sign any document in this case. He does not remember the exact number of documents signed by him. In his presence, Kulwinder did not sign any document. In his presence, police did not record statement of Kulwinder. Number of public persons were present near the park, where the dead body was lying. In his presence, police did not make any enquiry from any public persons, who were present near the park, where dead body was lying. He has denied that he is a false witness in this case and that is why he has not stated any fact of this case to any of his family members and father of deceased on the same day. He has denied that he has deposed falsely being the interested witness of this case, at the instance of I.O. He has denied that Session Case No.67/10 14/50 15 in his presence, accused Anil never extended any threat to deceased. He has denied that he had never seen accused Anil in his life prior to deposing before this court on 30.11.10. He has denied that he never went with Bhupender on 14.05.10. He has denied that accused Anil never met him at Gulabi Bagh. He has denied that his conduct is totally unnatural because he has been planted as a witness in this case and that is the reason he even did not tell the police regarding any quarrel between any person and deceased person. He has denied that his statement was not recorded at the spot by the police because subsequently he became a false witness in this case at the instance of police officials. He has denied that he is deposing falsely.
18 In crossexamination by ld. counsel for accused Krishan Kumar, PW7 has deposed that he had not attended the engagement of Bhupender Singh with Tamanna. The compromise between Bhupender and accused Krishan and Anil was made by him but the same was not in writing. He was not a witness in the case, which was registered against accused Krishan Kumar by Tamanna. On14.05.10, when his friend Bhupender told him that accused persons were harassing his fiancee Tamanna, he did not lodge any complaint to police. He did not telephone to police or to the father of Bhupender Singh, regarding the hathapai between Bhupender Singh and accused persons. He did not telephone to Session Case No.67/10 15/50 16 the father of Bhupender Singh, when he (deceased)did not return within 20/25 minutes. On that day, he did not go to the house of Bhupender Singh to inform his father regarding the incident of 14.05.10. He is not a relative of Bhupender, but is his friend. He had been going with Bhupinder to gym for last twothree years, prior to this incident. He has denied that he has deposed falsely against accused persons being friend of deceased Bhupender Singh. He has denied that he did not accompany Bhupinder on 14.05.10, as deposed by him in his examinationinchief.
19 In the present case, ld. Counsel for accused have submitted that the testimony of this PW7 cannot be relied upon as he has made improvements in his testimony and his conduct has been unnatural, as he did not tell the facts(that he lastly saw the deceased with accused persons) to the police and to the father of the deceased. 20 It is significant to note that PW7 Umit Singh has deposed certain facts, which were not deposed by him in his statement Ex.PW7/DA. But I am of the considered view that those facts (which have not been deposed by PW7 in his statement Ex.PW7/DA but have been deposed by him in court)are not material ones. These facts have no relevancy so far as the question, that he lastly saw the deceased in the company of accused persons, is concerned. I am of the considered view that the testimony of Session Case No.67/10 16/50 17 this witness cannot be brushed aside totally, if he has deposed some insignificant facts in court. It is worth noting that even the testimony of a hostile witness can be taken into consideration so far as it supports the prosecution case. In this case, PW7 Umit Singh has categorically deposed that on 14.5.10 deceased Bhupender Singh came to his house. He (deceased) was perplexed at that time. He (deceased)requested him to accompany him to Gulabi Bagh to make the accused persons understand. They reached at Gate No.1, Delhi Admn. Flats, Gulabi Bagh, where accused Krishan @ Monu and Anil came and both started abusing and scuffling with Bhupender Singh. He intervened and separated the accused from Bhupender Singh. The accused persons quarrelled with Bhupender Singh and abused him. The altercation continued for some time. Thereafter, accused Krishan @ Monu and Anil Kumar took Bhupender Singh inside the flats, Gulabi Bagh. They(accused persons)told him that 'HUM AAPAS MEIN BAAT KARENGE'. He(PW7) asked accused persons that he would also accompany them and they should talk in his presence. But accused persons refused him to accompany them and said that he should wait for 2025 minutes there. The accused persons and his friend Bhupinder did not come back. Thereafter, he came back to his house. It is significant to note that in crossexamination by ld. Counsels for accused nothing has Session Case No.67/10 17/50 18 come on record, which could shake the testimony of PW7, so far as the testimony relates that he (PW7) had lastly seen the deceased, in the company of accused persons. It is significant to note that testimony of PW7 cannot be disbelieved only on the ground that he did not tell the facts (that he had seen the deceased in the company of accused on the evening of the day of commission of offence) to the father of accused. It is significant to note that in crossexamination by ld. Counsel for accused Anil Kumar, PW7 has categorically deposed that he and father of deceased were going to Gulabi Bagh. There was a conversation on the way. During the conversation, he did not tell the father of deceased Bhupender Singh regarding the incident of last night as by that time he was not confirmed as to whether that it was really Bhupinder, who had been murdered. It is further significant to note that true and trustworthy testimony of PW7 Umit Singh cannot be disbelieved only because he did not narrate the incident of last seen evidence to the police, when he went to the spot alongwith the father of the deceased. It is significant to note that generally the public witnesses do not come forward to become a witness in a criminal case. The possibility, that, initially, PW7 also was not willing to be a witness in this case and, therefore, he did not tell the incident of last night to the police, cannot be ruled out. It is significant to note that PW7 has denied that he is a false witness in this case and has Session Case No.67/10 18/50 19 deposed at the instance of I.O. He has denied that he never went with Bhupinder on 14.5.10. He has further denied that he has deposed falsely against the accused persons being a friend of Bhupinder Singh. 21 It is worth noting that testimony of PW7 Umit Singh is supported with the call details record (CDR). In the present case, PW9 M.N. Vijayan, Nodal Officer, Tata Tele Services has proved the call details record of Phone No.9268513323 for the period from 10.5.10 to 25.5.10, Cell I.D Chart, Customer Application Form and certificate U/S 65B(4)Clause (C)of Indian Evidence Act. As per record, the said mobile phone was in the name of Kulwinder Singh, It is worth noting that PW2 Kulvinder Singh, father of the deceased has deposed that deceased Bhupender was having three mobile phones i.e 9555731815, 9268513323 and 8010057673. It is further significant to note that call detail record Ex.PW9/D shows that the deceased made four telephone calls to accused Krishan Kumar on 14.5.10 in between 21.35:41 and 22.50:56 PM. 22 Thus, from the trustworthy and reliable testimony of PW7the first incriminating circumstance, that deceased Bhupinder Singh was lastly seen by PW7 in the company of accused persons, is proved beyond reasonable doubt.
23 The another incriminating evidence against the accused persons is that accused Krishan made extra judicial confession to PW Session Case No.67/10 19/50 20 Tamanna and her Bua(Aunt)Anju Gulati over telephone after commissin of murder of deceased.
24 PW4 Tamanna has deposed that Smt. Janak Rani was her paternal grandmother. Smt. Anju Gulati was her Bua [Aunt]. Her parents are residing separately. She resides with her grandmother Smt. Janak Rani. Her Bua Anju Gulati resides in Seelampur. She was brought up by her grandmother. She was engaged with Sh. Bhupender Singh around six months back. The father of Sh. Bhupender Singh gave her Rs. 501 in the roka ceremony. She knew accused Krishan Kumar alias Monu as he also resides in the same locality. She has correctly identified accused Krishan Kumar in the court. She does not know accused Anil. Accused Krishan Kumar used to molest and harass her on the road and used to say 'MUJHSE SHADI KAR'. A complaint was lodged in the P.S and a case is pending against accused Krishan Kumar alias Monu. Accused Krishan Kumar used to say MERE SE BAAT KAR, WARNA MAIN TERE GHAR WALO KO JAAN SE MAAR DUNGA. Her mobile No. is 9136414440. Mobile No. 9910888121 is of her Bua Anju Gulati. Mobile No. 9213597666 is of accused Krishan Kumar @ Monu. On 14.05.10 Bhupender was murdered in Gulabi Bagh. Accused Krishan Kumar @ Monu made her a telephonic call after murder of Bhupender and told her 'JIS SE Session Case No.67/10 20/50 21 TERA RISHTA HUA HAI, MAINE USKA MURDER KAR DIYA HAI, AB MUJHE TUJHSE SHADI KARNE SE KOI NAHI ROK SAKTA'. Accused Krishan Kumar @ Monu also made a telephonic call to her Bua Anju Gualti and told the above said fact that he has committed murder of her fiance Bhupender. On 14.05.10 accused Krishan Kumar made a call at about 11:15 PM and he stated the above said fact that he had committed murder of Bhupender. Police recorded her statement. Her statement was also recorded before the court U/S 164 Cr.P.C, which is Ex. PW 4/A bearing her signature at point A. She had stated to M.M the same facts which she has deposed in court. The photograph Ex.P2, placed on judicial file, is her photograph. Accused Krishan Kumar alias Monu is present in court.
25 In crossexamination by ld. counsel for accused Anil PW4 has deposed that she has studied upto 8 th Standard. She left studies about one year ago. She was studying in Rajkiya Sarvodaya Kanya Vidyalaya in Gulabi Bagh. She has visited police in her entire life, three four times. The police met her for the first time in this case on 19.05.10. She has denied that there is a delay in recording of her statement and she has deposed falsely at the instance of I.O.
26 In crossexamination by ld. counsel for accused Krishan Kumar, PW4 has deposed that she did not go to P.S on the day of Session Case No.67/10 21/50 22 incident. She did not make telephonic call to anybody or to police after receiving the call from accused. On 19.05.10 police of P.S. Gulabi Bagh came to her residence. Her statement was recorded for the first time on 19.05.10. She has denied that accused Krishan Kumar did not tell her anything regarding murder of Bhupender on 14.05.10. Her engagement ceremony was performed at the residence of her Bua at Seelampur. In the engagement ceremony, her Bua and Fufa only were present from their side. No photographs were taken at the time of engagement. No ring or any other ornament was given by Bhupender Singh or his parents to her at the time of engagement. She cannot tell the date, month or day of the engagement. She has denied that she was not engaged to Bhupender Singh [deceased]. She used to talk accused Krishan Kumar prior to the incident in the late night on PCO from a public place. She has denied that Krishan Kumar, accused present in court, never extended any threat to her prior to the incident. She has denied that case FIR No. 48/09, U/S 354 IPC was registered on false and wrong facts. She never went to the house of deceased Bhupender after his murder. Her residence is adjacent to the place of incident. She had not gone to the place from where the dead body of Bhupender was recovered. Deceased Bhupender was also resident of Seelampur. House number of deceased Bhupender is H2, Session Case No.67/10 22/50 23 New Seelampur, Delhi. The residence of her Bua is H1/14, New Seelampur. She has denied that police of P.S. Gulabi Bagh planted her in the present case and police recorded her statement on 19.05.10 on its own. She has denied that she did not make any statement to police. She was taken to the court of Ld. MM for her statement U/S 164 Cr.P.C by her Bua. Police had taken her to the court of Ld.MM for her statement U/S 164 Cr.P.C. Police told her that whatever statement they have recorded on 19.05.10, she has to make the same statement before the Ld. MM. She has denied that neither any incident of 354 IPC ever took place with her nor she was informed by accused regarding murder of Bhupender. She has denied that she is deposing falsely.
27 PW5 Ms. Anju Gulati has also deposed that Tamanna(PW4) is her niece. Her mother Smt. Janak Rani is residing in H.No. 469, Type1 Delhi Admn. Flats, Gulabi Bagh. Her father expired around 2223 years ago. Her daughter Shikha alongwith her three nieces including Tamanna resides with her mother Smt. Janak Rani. Her brother Gulshan Kapoor separated from his wife around 1011 years ago. He has remarried and is residing separately. Her niece Tamanna was engaged with deceased Bhupender Singh 23 months prior to present incident. Rs. 501/ and sweet box was offered by the father of Bhupender Singh as a roka to her niece Tamanna. Accused Krishan Kumar alias Monu used to harass, Session Case No.67/10 23/50 24 molest and torture her niece Tamanna. He used to visit even to the school of Tamanna. Accused Krishan Kumar used to say her niece Tamanna 'MERE SAATH SHADI KAR, MERE SAATH GHOOM, AGAR SHADI NAHI KAREGI TOH, TERE OR TERE GHAR WALO KE LIYE ACHCHA NAHI HOGA'. They lodged a complaint in the P.S against Krishan Kumar alias Monu but police did not give any response, so they made complaint to DCP and thereafter, police lodged FIR against Krishan Kumar and same is pending against accused Krishan Kumar alias Monu in the court. Her Mobile No. is 9910888121. On 14.05.10 she was present at her house at Seelampur. Her niece Tamanna was also at her house. On that night, at about 11:10 a call was received in her abovesaid mobile made by accused Krishan Kumar alias Monu, but she did not receive the same. Phone No. 9213597666 is of accused Krishan Kumar alias Monu. Accused Krishan Kumar alias Monu again made a call at about 11:11 PM. She received that call of accused and accused Krishan Kumar alias Monu told her that 'KI TAMANNA KA JO AASHIQ HAI, JIS SE TUM USKI SHADI KARNE WALE HO, USKO MAINE CHAKUON SE FAAD DALA MAAR DALA, AB MUJHE TAMANNA SE SHADI KARNE SE KOI NAHI ROK SAKTA'. Accused Krishan Kumar alias Monu also made a call to her niece Tamanna and he told her that he [accused Krishan Kumar] had committed murder of her fiancee Bhupender. Session Case No.67/10 24/50 25 Accused Krishan Kumar alias Monu used to say to them that they should made a compromise with him in the case of molestation threat etc. which was lodged against him. She asked accused Krishan Kumar that he had to give assurance in writing in the court to them that he [accused] would not commit such incident of molestation with Tamanna in future. On that accused Krishan Kumar told them that he would not give in writing and further threatened 'AGAR MERA DIMAG KHARAB HO GAYA TO MAIN KUCH BHI KAR DUNGA'. Accused Krishan Kumar handed over her some papers of compromise for signing the same. Police recorded her statement. Her statement was recorded in the court U/S 164 CrPC is Ex. PW5/A and she stated the same facts in said court which she has deposed today. She handed over the documents(running into 4 pages) i.e. one memorandum of understanding and one summon of the court in the name of her mother Smt. Janki Rani, to police which were handed over to her by accused Krishan Kumar for signature. The memorandum of understanding is Ex. PW5/B and summon is Ex. PW5/C. I.O seized the documents vide seizure Ex. PW5/D. Accused Krishan Kumar alias Monu is present in court.
28 In crossexamination, by ld. counsel for accused Anil, PW5 has denied that there is delay in recording of her statement as she is a false witness and has deposed falsely at the instance of the I.O. Session Case No.67/10 25/50 26 29 In crossexamination by ld. counsel for accused Krishan Kumar PW5 has deposed that her brother Gulshan Kapoor took divorce from his wife Lakshmi, mother of Tamanna. Tamanna started living with her mother at Gulabi Bagh, just after the divorce of her parents. She cannot tell the day, date and month of the engagement between deceased Bhupender and Tamanna. From the side of their family, she herself, her mother, her husband Sh. Vijay Gulati, Tamanna and her two sisters Deepika and Neha and her daughter Shikha were present in that ceremony. No other relative was called as it was a roka ceremony. She has denied that no such function ever took place. Accused Krishan Kumar harassed Tamanna in her presence also but she cannot tell the date, however, she informed PCR at number 100. She has denied that accused Krishan Kumar never used to say her niece Tamanna 'MERE SAATH SHADI KAR, MERE SAATH GHOOM, AGAR SHADI NAHI KAREGI TOH, TERE OR TERE GHAR WALO KE LIYE ACHCHA NAHI HOGA'. She has denied that FIR No. 48/09 U/S 354 IPC was got recorded on false facts. She did not inform either the father of Bhupender or his any relative or any police official nor our neighbourer. She did not give this information to any person or police even on the next days i.e. 15.05.10, 16.05.10, 17.5.10 and 18.05.10. She never went to P.S. Gulabi Bagh to give this information. On 19.05.10,SHO P.S. Gulabi Bagh came at Session Case No.67/10 26/50 27 her residence for the first time. She has denied that she did not give any statement to police even on 19.05.10. She has denied that police itself fabricated her statement on 19.05.10 and tutored her to give that statement in the court also. She has denied that accused Krishan Kumar did not make any call to her. She has denied that accused Krishan Kumar alias Monu never told her that 'KI TAMANNA KA JO AASHIQ HAI, JIS SE TUM USKI SHADI KARNE WALE HO, USKO MAINE CHAKUON SE FAAD DALA MAAR DALA, AB MUJHE TAMANNA SE SHADI KARNE SE KOI NAHI ROK SAKTA'. She has denied that Krishan Kumar never asked them to make a compromise in the case of molestation. She has denied that SHO tutored her to make statement U/S 164 CrPC and he read over a statement dated 19.05.10, which was fabricated by him. She has denied that she made a statement U/S 164 Cr.P.C, which was tutored to her by the SHO, P.S. Gulabi Bagh. She has denied that she has deposed falsely at the instance of I.O of this case.
30 It is worth noting that extra judicial confession made by the accused Krishan to PW Tamanna(PW4) and her Bua Anju Gulati(PW5) is corroborated with the call details record. It is significant to note that from the testimony of PW4Tamanna it is proved on record that mobile phone Session Case No.67/10 27/50 28 No.9910888121 pertains to her bua and 9213597666 pertains to accused Krishan Kumar. She has further proved that mobile phone no. 9136414440 pertains to her (PW Tamanna).
31 PW8 Vishal Gaurav, Nodal Officer Bharti Airtel Ltd. has proved that the Mobile connection No.9910888121 has been issued to Smt. Anju Gulati, W/o Sh. Vijay, R/o H1/14, New Seelampur, Delhi. The call details of the said mobile phone from 14.5.10 to 15.5.10 running into three pages are Ex.PW8/C collectively.
32 In crossexamination by ld. Counsel for accused Anil, PW8 has deposed that the call details Ex.PW8/C were generated by him from the computer. He has volunteered that all the computers were under the supervision of Nodal department. He has denied that he cannot tell whether the computer system, from which above said calls were generated, was functioning. He has denied that break down took place in the computer systems, from which call details were generated. He has denied that he is deposing falsely.
33 Further, PW9 M.N. Vijayan has proved on record the call details record of mobile phone No. 9213597666, which was issued in the name of Krishan Kumar. The call details running into four pages is Ex.PW9/K. The customer application form is Ex.PW9/E and copy of driving license is Ex.PW9/F. Session Case No.67/10 28/50 29 34 In crossexamination by ld. Counsel for accused person PW9 has deposed that the call details are available in the server, which are generated by them through a password. He has denied that no inquiry was made from him by the police in this case.
35 Further, PW18 Jyotish Maharana, Nodal Officer, MTS Sistema has proved that Mobile Phone No. 9136414440(mobile phone possessed by PW Tamanna)was issued in the name of Sh. Vishnu Sharma. The call details is Ex.PW18/B. 36 In crossexamination by ld. Counsel for accused Krishan Kumar, PW9 has deposed that he has deposed on the basis of documents produced by him.
37 Further, prosecution has also examined Vishnu Sharma as PW25. He has deposed that he knows Mr. Vijay Gulati, as he is working in his office. In Nov.2009, he had procured a mobile number connection 9136414440 in his name. After procuring abovesaid SIM card, he had handed over the same to Vijay Gulati. Thereafter, same was being used by Vijay Gulati and he was paying the mobile charges. 38 An opportunity to crossexamine this witness has been granted to Ld. Counsel for both accused, but none of them did not avail that opportunity.
39 It is significant to note that PW25 Vishnu Sharma is the Session Case No.67/10 29/50 30 husband of PW5 Anju Gualti, who is bua of PW4 Tamanna. Therefore, the testimony of PW4 that she was using the mobile phone No. 9136414440 cannot be disbelieved.
40 Now, a perusal of the call details record Ex.PW8/C shows that accused Krishan Kumar made a telephone call to PW5 Anju Gulati on 14.5.10 at 11.05 PM. Further, a perusal of call details record Ex.PW18/B shows that accused Krishan Kumar also made a telephone call on 14.5.10 at 11.12 PM to PW Tamanna.
41 The extra judicial confessions, made by accused Krishan Kumar to PWs Tamanna and Anju Gulati are supported with the call detail records. Moreover, they are corroborated with statements under 164 Cr.P.C Further, there is nothing in crossexamination of these PWs to the contrary. It is but natural that accused Krishan Kumar made telephone calls to PWs Tamanna and Anju Gulati after murder of Bhupender. I do not find any reason to disbelieve the extra judicial confession only because that PW Tamanna and Anju Gulati did not inform the police and did not go to spot. From the extra judicial confession by accused Krishan to Tamanna and Anju Gulati, it is proved on record that accused committed the murder of deceased Bhupinder to clear the way of marriage of accused Krishan with PW Tamanna. 42 In the present case, PW9 & PW18 have duly proved the Session Case No.67/10 30/50 31 certificates U/S 65B(4)(C) of the Evidence Act and certified that the call details record produced by them is true. However, PW8 has not produced the said certificate U/S 65B of the Indian Evidence Act. But I am of the considered view that the call details Ex.PW8/C produced by PW8 cannot be disbelieved for want of certificate U/S 65 B of Indian Evidence Act. 43 The Hon'ble Supreme Court, while deciding the Criminal Appeals No. 373375/04, Crl. Appeals No. 376378/04, 379380/04 and 381/04 titled as State Vs. Navjot Sandhu, State Vs. Syed Abdul Rehman Gilani, Shaukat Hussain Guru Vs. State and Mohd. Afzal Vs. State, AIR 2005 Supreme Court 3820, has observed that "according to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies".Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company Session Case No.67/10 31/50 32 can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 and 65. It may be that the certificate containing the details in subSection [4] of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 and 65."
44 Thus, from the above discussion, the second incriminating circumstance is proved beyond reasonable doubt against accused persons by the prosecution.
45 The next incriminating evidence against accused is the recovery of weapon of offence i.e knife.
46 In the present case, PW19 Ct. Narender Kumar has deposed that on 25.5.10 he joined the investigation of the case. Both accused were interrogated, wherein they disclosed that they had thrown the knife in ganda nala in between Mata Mandir and Petrol Pump. He entered the Session Case No.67/10 32/50 33 ganda nala. I.O called some passersby to join the investigation but they did not join and left. He picked up the knife from the ganda nala and knife was handed over to the I.O. IO showed the knife to accused persons. I.O prepared the sketch of the knife Ex.PW19/J. On the blade, 'Stainless Steel made in India' were written. l.O seized the knife vide seizure memo Ex.PW19/K. IO prepared the pullanda of knife and put the seal of DSD. Seal after use was handed over to ASI Krishan Kumar.
47 In crossexamination by ld. Counsel for accused Krishan Kumar, PW19 has denied that accused persons were not present at the place from where the knife was taken into possession. 48 In crossexamination by ld. Counsel for accused Anil, PW19 has deposed that he did not see any word or letter written on the knife seized by I.O in his presence except the words 'Stainless Steel made in India'. He has volunteered that the knife was mud stained. Hence, he could not see other words. The knife was washed with water by the I.O. He has stated to I.O in his statement dated 25.5.10 that I.O showed the knife to accused persons and both accused persons correctly identified the knife. He has denied that no recovery was affected in his presence and the knife was planted by the I.O.
49 The testimony of PW19 Ct. Narender Kumar is further corroborated with the testimony of PW20 ASI Krishan Kumar, who was Session Case No.67/10 33/50 34 also present with the IO at the time of recovery of knife. He(PW20) has deposed that on 25.5.10 both accused persons led the police party to ganda nala near Mata Vaishno Mandir, Gulabi Bagh. At that time, IO asked some public persons to join the investigation. Two public persons agreed to join the investigation but later on they also left the spot without telling the I.O. Thereafter, he and Ct. Narender and other police party members entered into the ganda nala and searched the place, pointed out by the accused persons. During search one knife was recovered by Ct. Narender and same was handed over to I.O. I.O prepared the sketch of knife Ex.PW19/J. IO seized the knife vide memo Ex.PW19/K. 50 In crossexamination by ld. Counsel for accused Krishan Kumar, PW19 has denied that signature of accused Krishan Kumar was obtained forcibly by the IO or that he (PW20)had signed the seizure memo of knife Ex.PW19/K at the instance of I.O. He has denied that no knife was recovered at the instance of accused Krishan Kumar @ Monu. He has further denied that seizure memo Ex.PW19/K was fabricated by the I.O, who obtained the signature of Ct. Narender Kumar at the P.S. 51 In crossexamination by ld. Counsel for accused Anil, PW19 has deposed that the seizure memo of knife was signed by him and Ct. Narender Kumar. He has denied that he cannot tell the exact measurement of the knife. He has denied that knife was planted upon Session Case No.67/10 34/50 35 accused to fulfill the lacuna of the case. He has denied that no recovery was affected from or at the instance of accused Anil in his presence. He has denied that the knife was planted upon accused Anil at the P.S to fulfill the lacuna in the P.S. He has denied that nothing was recovered in this case in his presence. He has admitted that on the knife the words 'ACE' are written instead of 'ACC'. He has volunteered that the knife was mud stained and he is having weak eyesight and therefore, he was unable to read the letters properly at that time. The chance prints could not lifted as knife was lying in the mud.
52 The testimonies of PW19 & PW20 cannot be disbelieved only because that PW19 has deposed in crossexamination by Ld. Counsel for accused Anil that in pursuance to disclosure statement Ex.PW19/G of Anil dated 24.5.10, no recovery was affected. It is significant to note that PW20 has categorically deposed in his cross examination by Ld. Counsel for accused Anil that during interrogation both accused told the I.O that they had thrown the knife in a Ganda Nala, situated near Mata Vaishno Mandir, Kali Das Marg, Gulabi Bagh. Thereafter, both accused led the police party to Ganda Nala but on that day no recovery of knife was affected. He has further deposed that on 25.5.10 both accused further disclosed that they had thrown the knife in Ganda Nala and led the police party to Ganda Nala and got recovered the Session Case No.67/10 35/50 36 knife. It is significant to note that it is the case of prosecution that knife has been recovered on 25.5.10, as per seizure memo of knife Ex.PW19/K. If I.O did not formally record the disclosure statements of accused persons on 25.5.10 it does not mean that the disclosure statements of accused Krishan and Anil Ex.PW19/C and Ex.PW19/G respectively recorded on 24.5.10 cannot be taken into consideration altogether. Thus, from the true and reliable testimonies of PW19 and PW20 it is proved on record that the knife Ex.PW17/C was recovered at the instance of accused persons.
53 In the present case, PW17 Dr. S. Lal has proved on record that injuries on the body of deceased were possible to be caused with the knife. He has deposed that he conducted the postmortem on the body of deceased Bhupender on 16.5.10. On external examination 24 ante mortem external injuries were found by him. As per the opinion of PW17 the cause of death is shock and hemorrhagic due to ante mortem stab injuries to chest and abdominal organs. All injuries were ante mortem in nature and record in duration. Injuries No.6,7 & 8 could be caused by blunt force impact and injuires No. 1,2,3,4,5,9,10,11,12,13,14,15 to 24 could be possible to be caused by single sharp pointed weapon. Injuries No.9,11,12,13 and 22 were sufficient to cause death in ordinary course of nature individually and Session Case No.67/10 36/50 37 collecting time of death was 36 hours. The detailed postmortem report is Ex.PW17/A. PW17 has further deposed that he received an application from Inspector D.S. Dagar, PS Gulabi Bagh with sealed parcel containing weapon of offence (knife)and all inquest papers regarding subsequent opinion as to whether the injuries mentioned in the postmortem report could be possible to be caused by this weapon of offence or otherwise. After going through the Postmortem findings and examination of knife, he has opined that (i) injuries No.1.2,3,4,5,9,10,11,12,13,14,15 to 24 could be possible caused with this weapon (knife)produced before him for examination.
54 Moreover, PW17 has deposed that the cut marks present on clothes, as mentioned in postmortem report, were corresponding to injuries, present on body.
55 Further, the cut marks present on clothes could be possible to caused with this weapon given for examination. He has further deposed that after examination, the weapon of offence were re sealed alongwith original covering and handed over to IO alongwith sample seal. He has identified the weapon of offence(knife) Ex.PW17/C. His opinion is Ex.PW17/B. 56 In crossexamination by ld. Counsel for accused Anil, PW17 has deposed that the size of the cut marks on the clothes are not Session Case No.67/10 37/50 38 mentioned in the postmortem report. He cannot tell the size of the cut marks on the clothes. The cut marks present on the clothes were larger than the size of the width of the blade of the knife. A cut mark on the clothes having width of 5 cm may be caused with knife having width of 4 cm as well as of 3 cm. No conclusive opinion can be made on the basis of examination. The stabs wounds mentioned in the postmortem report could be possible to be caused with the knife of having the width of 1.5 cm. No conclusive report can be given regarding the stabs injuries mentioned in the postmortem report. He has volunteered that the opinion can be given on the basis of possibility, which is based on the basis of examination. He has denied that he cannot identify the weapon of offence given for examination. He has denied that he had prepared a false Post mortem report on the instructions of the IO. He has denied that he has given false opinion in his postmortem report.
57 In the present case, PW29 Inspector Dharambir Singh Dagar has deposed in crossexamination for accused Anil Kumar that doctor had opined that some of the injuries were caused by single edged weapon and some of the injuries were caused by double edged weapon. I have gone through the entire statement of PW17. In his statement PW17 has nowhere deposed that that some of the injuries were caused with single edged weapon and some of the injuries were caused with double edged Session Case No.67/10 38/50 39 weapon. I am of the considered view that ld. Counsel for accused Anil has put this suggestion to IO only to mislead the clear and cogent evidence of PW17. It is significant to note that PW29, who is the I.O of the case has categorically denied that two different weapons of offence were used in this case.
58 Thus, prosecution has also duly proved beyond reasonable doubt this incriminating evidence that the knife Ex.PW17/C recovered at the instance of accused, was used in causing the murder of deceased. 59 Another incriminating evidence in this case is the recovery of treatment slip Ex.PW24/C issued by Dr. S.K. Gupta from the house of accused Krishan Kumar.
60 PW29 Inspector Dharambir Nagar has deposed that on 19.5.10, he alongwith ASI Krishan Kumar (PW20), Ct. Narender (PW 19), Ct. Vijay(PW22), HC Laxman, HC Rajpal, Ct. Satbir and Ct. Gurdayal went to the house of accused Krishan Kumar and his house was searched. Upon search of the house, one visiting card having the photo of Krishan Kumar was found. One menu of catering on which the address of PW Tamanna was mentioned was found. Two photographs one of Tamanna and one of Krishan Kumar were also found in a plastic folder. On these photographs, the names of Tamanna and Krishan Kumar were mentioned. All the things were taken into possession vide seizure memo Ex.PW20/A. Session Case No.67/10 39/50 40 The search of the house was made in the presence of Pradeep Kumar, brother of accused Krishan Kumar, who also signed the said seizure memo. Upon inquiry, Pradeep Kumar informed them one of his married sister was living in Maulana Azad Medical college Residential Complex. Her address was taken. Thereafter, they visited that complex in search of accused Krishan Kumar. Accused Krishan Kumar was not found in the house of his sister also. The house of his sister was searched and one medical treatment slilp of Krishan Kumar was found, on which date 15.5.10 and time 6.00 AM was mentioned by Dr. S.C. Gupta of Shashtri Nagar. The said treatment slip was seized vide memo Ex.PW20/B. The house of Raj Kumar was searched in his presence, who also signed the seizure memo. The treatment slip is Ex.PW12/A. 61 In crossexamination by ld. Counsel for accused, PW29 has deposed that he did not join the respectable persons of the locality at the time of conducting search of the house. He has not seized any register from doctor S.C. Gupta pertaining to the alleged treatment of accused Kishan Kumar. He also did not inquire from him whether he maintained any record of the patients. He has volunteered that he had written a letter to him for producing or maintaining the record of the patient. He has denied that he had manipulated the prescription slip of Dr. S.C. Gupta. Session Case No.67/10 40/50 41 62 PW29 has also deposed that during investigation he took the specimen thumb impression of accused Krishan Kumar and sent the same alongwith the treatment slip Ex.PW12/A for comparison to Finger Print Bureau and the result was collected.
63 Prosecution has also examined Dr. S.K. Gupta as PW12. He has deposed that on 15.5.10 at about 6.00 Am one Krishan Kumar alongwith his brotherinlaw Raj Kumar came to his clinic. Krishan Kumar was having injuries on his both hands. There were cut on all four fingers of his right hand. Ring finger of left hand was also having cut. He examined him vide slip Ex.PW12/A. The patient Krishan Kumar had put his left thumb impression at point B and Raj Kumar had signed the slip at point C. The injuries as mentioned above were caused to him on 14.5.10 at about 11 AM. The patient was referred to Lok Nayak Hospital for further examination. Krishan Kumar is present in court. SHO Gulabi Bagh sent him a request vide letter No.1319/RSHO Gulabi Bagh dated 19.5.10. He had supplied the said treatment slip to him.
64 An opportunity to crossexamine this witness has been given to Ld. counsels for accused, but none of them has not availed of that opportunity.
65 Prosecution has also examined Sh. Sheo Raj Singh, Senior Finger Print Expert as PW13. He has deposed that on 5.7.10, he received the Session Case No.67/10 41/50 42 documents for examination from SHO Gulabi Bagh in the present case. He had carefully examined the documents in question and gave his report. The result of examination is that the questioned thumb impression Mark 'Q1' is identical with left thumb impression Mark 'S1A' on the specimen thumb/finger impression slip of Krishan Kumar @ Monu son of late Sh. Arjun Singh. The detailed report is Ex.PW13/A. 66 In crossexamination by ld. Counsel for accused Krishan Kumar PW13 has deposed that he received the documents in question from SHO Gulabi Bagh in this case through letter vide diary No. 508/CW/FPB dated 5.7.10. He cannot say as to when the documents in question were prepared. However, he had received the documents in question, on which the dates were already written.
67 An opportunity to crossexamine the witness has been given to ld. Counsel for accused Anil but he did not avail of that opportunity. 68 In Rakesh Kumar V. State 2004(1)JCC 110 wherein it was held by Hon'ble High Court that specimen handwriting of the accused for comparison by expert cannot be taken without permission of the Court. It was also held that such signatures or thumb impression taken during investigation by police without permission of Court cannot be used during trial and expert report also based on such signatures of thumb impression could not be made use of during trial."
69 Thus, in view of judgment of Hon'ble High Court the report Session Case No.67/10 42/50 43 prepared by PW13/A cannot be taken into consideration because PW29/IO of the case has obtained the thumb impression of accused Krishan Kumar during investigation without permission of the court. 70 But the prescription slip Ex.PW12/A can be taken into consideration as the same has been duly proved by PW12 Dr. S.K. Gupta. It is significant to note that no suggestion has been put to PW12 by ld. Counsels for accused Krishan Kumar to the effect that accused Krishan Kumar did not get any treatment from him and did not receive any injury on the four fingers of his right hand and ring finger of left hand. It is significant to note that the accused Krishan Kumar has been examined by PW12 on the early morning of 15.5.10 i.e at about 6 AM. It is further significant to note that accused Krishan Kumar had gone to Dr. S.K. Gupta (PW12) alongwith his brotherinlaw (Jija)namely, Raj Kumar. It is further significant to note that said treatment slip Ex.PW12/A has been recovered by the police from the house of brotherinlaw of accused Krishan Kumar namely, Raj Kumar, when the police party went to the house of Raj Kumar in search of accused Krishan Kumar. I am of the considered view that testimony of PW29 and other recovery witnesses cannot be disbelieved only on the ground that he did not join the public witnesses and did not obtained the search warrant from the court. 71 In State(NCT of Delhi) V. Navjot Sandhu, (2005)11 SCC Session Case No.67/10 43/50 44 600 it has been observed by Hon'ble Supreme Court that "there is no such inflexible proposition of law that in the absence of independent witnesses being associated with search, the seizure cannot be relied upon. In the absence of independent witnesses during seizure operations investigating officers' evidence need not always be disbelieved. Of course, closer scrutiny of evidence is what is required. Having regard to the fact situation in the present case, the police officers cannot be faulted for not going in search of the witnesses in the locality. There is no law that the evidence of police officials in regard to seizure ought to be discarded.
72 Thus, in view of above discussion the possibility, that accused Krishan had received the injuries on his hand while inflicting injuries on the body of deceased, cannot be ruled out. 73 Thus, prosecution has also proved this incriminating evidence against accused beyond reasonable doubt. 74 The other incriminating circumstance against the accused persons is the use of Mobile Phone No.9999793947 by accused Anil. 75 In the present case, PW29 has disclosed that on 26.5.10 he interrogated the accused persons and recorded their supplementary statements Ex.PW19/H and Ex.PW20/D. During investigation accused Anil disclosed his mobile phone number and stated that the bill of the same was lying in the house. Thereafter, accused Anil took them to his house and produced the purchase bill of his mobile phone from his house. The said bill was seized vide memo Ex.PW20/E. The purchase bill is Session Case No.67/10 44/50 45 Ex.PW20/6. PW11 Israr Babu has proved the call details record pertaining to the mobile phone No.9999793947(allegedly used by accused Anil). As per the record produced by the PW11, the said mobile phone was in the name of Anil Kumar, son of Chhotey Lal. In cross examination by ld. Counsel for accused Anil, PW11 has deposed that said mobile connection has not been issued in the name of Anil Kumar son of Shiv Dayal, R/o Qtr. No.561, Delhi Admn. Flats, Gulabi Bagh, Delhi.
76 It is significant to note that as per call detail record Ex.PW11/C accused Anil made three calls to accused Krishan on 14.5.10 at the relevant time. In other words, accused Anil was in constant touch with accused Krishan before commission of offence. It is further significant to note that the purchase bill is having an IEMI No. 352010041684401. It is further significant to note that call details record Ex.PW11/C is also showing the same IMEI except the last digit. 77 In Gajraj Singh V. State, Crl. Appeal No.461/2008 decided on 18.3.09 by Hon'bleDelhi High Court, the last digits of the IEMI number were not tallying. In that case the first fourteen digits of IEMI number as shown in seizure memo were tallying with the first fourteen digits recorded in the call records. The controversy pertained only to the last digit, which was not tallying . That discrepancy was explained by the Session Case No.67/10 45/50 46 computer Engineer working as Manager, Siemens(PW78). He (PW78)deposed that while giving various details of the 15 digits, the last one digit is a spare digit. According to the GSM specification the last digit should be transmitted by the mobile phone as '0'. Thus, while relying upon the decision of Hon'ble Supreme Court in State Vs. Navjot Sandhu, 2005 Crl. LJ 3950, the Hon'ble Delhi High Court held that the factum of the fifteenth digit of the IEMI number recorded in seizure memo and call detail record not tallying was of no consequence.
78 In the present case, the IEMI as shown in the purchase bill is 352010041684401 but in the call details record Ex.PW11/C the IEMI No.is 352010041 684400. I am of the considered view that in view of Judgment of Hon'ble Supreme Court in Navjot Sandhu's case and judgment of Hon'ble Delhi High Court the difference in last digit of IEMI number is of no consequence and last digit has to be ignored. In other words, the IEMI number as shown in purchase bill Ex.PW20/6 and call record Ex.PW11/C are same. In view of above facts, it is concluded that accused Anil was using the SIM card belonging to one Anil, son of Chhotey Lal in his mobile phone at the relevant time. I am of the considered view that purchase slip Ex.PW20/6 cannot be disbelieved only because that PW29 never examined Anil Kumar son of Chhotey Lal in this case as witness and did not conduct any inquiry as to how Anil son of Shiv Dayal obtained the SIM Session Case No.67/10 46/50 47 Card bearing No. 9999793947 from Anil, son of Chootey Lal or that PW29 did not conduct any inquiry qua the relationship of Anil Kumar, son of Chhotey Lal and Anil Kumar son of Shiv Dayal or that he did not examine the shopkeeper, who had issued the salepurchase slip to prove the genuineness of the salepurchase slip. It is significant to note that PW29 has categorically deposed that Mobile No.9999793947 was used by accused Anil. It is further significant to note that the purchase bill Ex.PW20/6 is duly proved by prosecution as no objection has been raised by Ld. Counsel for accused Anil during trial on the exhibition of this document.
79 Thus, after going through the testimonies of PW11 and PW29, it is proved on record beyond reasonable doubt that the accused Anil used the SIM card No.9999793947, which was in the name of accused Anil, son of Chhotey Lal in his mobile handset and contacted accused Krishan before murder of deceased Bhupender. Thus, this incriminating circumstance also goes against the accused persons. 80 Further, PW29 has also seized the clothes of accused Anil on 25.5.10 during investigation, which were worn by him at the time of alleged incident. The clothes were seized vide memo Ex.PW19/L. Later on, the clothes have been set to FSL alongwith other exhibits of the case. The FSL result was obtained and filed in court. The same is Ex.PW29/X Session Case No.67/10 47/50 48 and the serological report is Ex.PW29/X1. The FSL result shows that no blood has been detected on the clothes of the accused Anil. 81 It is significant to note that extra judicial confession made by coaccused Krishan to PW4 and PW5 cannot be appended to accused Anil in view of the judgment in 'Sunil Rai @ Pava Vs. Union Territory of Chandigarh', 2011(4)JCC 2453, where it has been observed by Hon'ble Supreme Court that "Extra Judicial Confession of appellant No.1 cannot be fastened upon the other two appellants for holding them of guilt of murder."
82 Further, PW4 has not identified the accused Anil in court. Similarly, PW5 Anju Gulati has only identified accused Krishan Kumar in court . But, I am of the considered view that all these facts cannot exonerate accused Anil from the offence, as he is facing the charge U/S 34 IPC. I am of the considered view that accused Anil cannot be acquitted of the offence only on the ground by ignoring the important pieces of incriminating circumstances, which have been discussed in detail in the earlier part of judgment.
83 In the present case, prosecution has duly proved the motive behind the murder of deceased Bhupender. PW4 Tamanna has categorically deposed that she was engaged to Bhupender around six months back. It is significant to note that PW4 Tamanna has admitted Session Case No.67/10 48/50 49 that prior to the incident she used to talk accused Krishan Kumar for a long time on phone in the late night. From all these facts, it become clear that prior to her engagement PW4 Tamanna was having some affair with accused Krishan. But when, the father of Tamanna got the engagement of Tamanna with deceased, accused Krishan Kumar could not tolerate that and became enemical towards the deceased. Therefore, the possibility that he(accused Krishan) while sharing common intention with accused Anil committed the murder of deceased Bhupender to clear his way of marriage with Tamanna cannot be ruled out.
84 In view of above discussion, I am of the considered view that all the incriminating evidence against accused Krishan Kumar and Anil have been cogently and firmly established by the prosecution. All the incriminating circumstances are of definite tendency and are pointing out towards the guilt of the accused person. All the circumstances cumulatively form a chain so complete with the conclusion that with all human probability the crime was committed by the accused persons and none else. The circumstantial evidence against accused persons is complete and incapable of any explanation of any other hypothesis than that of their guilt. The evidence is not only consistent with the guilt of the accused but also is inconsistent with their innocence. I am of the considered view that all the ingredients as laid down by Hon'ble Supreme Session Case No.67/10 49/50 50 Court in "Arun Bhanudas Pawar V. State of Maharashtra's case are fulfilled in the present case. Accordingly, I am of the considered view that prosecution has successfully proved the case of murder against the accused persons beyond reasonable doubt. Accordingly, accused Krishan Kumar and Anil are convicted of the offence under Section 302 read with Section 34 IPC.
85 However, it is not proved on record that the deadbody of deceased Bhupender was recovered at the instance of accused persons. I am of the considered view that offence under Section 201 read with Section 34 IPC is not proved against accused persons. Hence, both accused are acquitted of the offences under 201 read with Section 34 IPC.
Announced in open court today on (Smt. Bimla Kumari) on 18.1.12. Addl. Sessions Judge02(North) Tis Hazari Court, Delhi.
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