Delhi District Court
State vs 1 Vikas Yadav on 30 May, 2008
1
IN THE COURT OF MS RAVINDER KAUR, ASJ,
NEW DELHI
SC No. 78/02
STATE VS 1 VIKAS YADAV
S/o Sh. DP Yadav
R/o R 4/16, Raj Nagar
Ghaziabad (UP).
2 VISHAL YADAV
S/o Late Sh Kamal Raj
R/o R5/45, Raj Nagar
Ghaziabad (UP).
FIR No. 192/02
PS Kavi Nagar,
U/s 364/302/201/34 IPC
J U D G M E N T
1. Both the accused namely Vikas Yadav son of Sh DP Yadav R/o R 4/16, Raj Nagar, Ghaziabad, UP and accused Vishal Yadav son late Sh. Kamal Raj Yadav R/o R 5/45, Raj Nagar Ghaziabad, UP have been sent up for 2 trial U/s 364/302/201/ 34 IPC.
2. The facts as set out in the charge sheet and emerging from the record and documents are as follows:
i) The prosecution case is that on 17.2.02 at about 1:15pm the complainant Smt Neelam Katara alongwith Ajay Prasad R/o AC H No. 500 Vasant Kunj New Delhi reached PS Kavi Nagar Ghaziabad and lodged a written complaint to the effect that on 16.02.02 her son Nitish Katara (now deceased) had attended the marriage of Shivani d/o Late Sh. BK Gaur r/o 58 Model Town, West Ghaziabad and Nitish took meals alongwith his friends Diwakar and Gaurav Gupta. It is further mentioned in the complaint that Bharat Diwakar informed that while they were taking meals, Vishal s/o Late Sh. Kamal Raj Yadav came to them and Rohit 3 s/o Sh BK Gaur told that Vikas s/o Sh DP Yadav and Vishal s/o Late Sh Kamal Raj Yadav R/o Ghaizabad had arrived there at 12/12.30 mid night. It is further mentioned in the complaint that Vishal and Vikas took Nitish outside while talking. Thereafter when Bharat Diwakar could not see Nitish so he came back to their house. She expressed in her complaint that she suspected happening of some untoward incident.
ii) It is further mentioned in the complaint that her son Nitish and Bharti Yadav d/o Sh D P Yadav studied together in IMT in the year 1998 2000 and they were friends but Vishal and Vikas did not like their friendship. She requested the police authority to record her complaint and to take necessary action.
iii) On the basis of the aforesaid complaint 4 case FIR No. 83 Ex. PW 1/2 case No. 192/02 U/s. 364 IPC was registered by PW1 HC Netarpal Singh. The investigation was handed over to PW 35 SI Anil Somania PS Kavi Nagar. He started the investigation with the recording of the statement of HC Netarpal Singh U/s. 161 Cr.PC. Thereafter the detailed statement U/s 161 CrPC of the complainant Smt. Neelam Katara was recorded, whereby she stated that on 16.02.02 her son Nitish Katara (now deceased) and his friend Bharat Diwakar left the house at 9pm for attending the marriage of Shivani Gaur at Diamond Place Ghaizabad. When Nitish did not return home, Bharat Diwakar told her that at 12/12.30 midnight Nitish while talking to Vishal son of Late Sh Kamal Raj Yadav had gone out of the Diamond Palace and Rohit son of Sh B K Gaur R/o. 58, Model Town West 5 Ghaziabad had also told him that Vikas s/o Sh DP Yadav and Vishal son of Late Sh Kamal Raj Yadav had arrived at Diamond Palace at 12/ 12.30 mid night and while talking to Nitish had taken him outside. She further stated that deceased had friendship with Bharti Yadav d/o DP Yadav R/o Rajnagar since they both studied together in IMT Ghaizabad in the year 1998 2000. Her son was on visiting terms to the house of Bharti and were close friend and perhaps this was not liked by Vishal and Vikas. For this reason she apprehended the happening of some untoward incident with her son Nitish Katara by accused Vishal and Vikas. She further disclosed that her son was wearing red coloured kurta , white churidaar pajama and a shawl and Esprit watch in his hand. A poster bearing the photograph of the deceased Nitish 6 Katara Ex.PW 1/DA under the title Talash Apharit (search for abducted person) was issued. Thereafter the statement of Bharat Diwakar son of Sh RK Diwakar r/o C 24 Shivaji Nagar PS Habibganj Bhopal (MP) was recorded U/s 161 Cr PC who stated that he had taken admission in IMT Ghaziabad for MBA course in the year 1998 and Nitish Katara, Gaurav Gupta, Bharti d/o Sh DP Yadav were also studying in IMT alongwith him, whereas Shivani Gaur was doing Executive MBA course from IMT and they were all friends and were on visiting terms with each other and they also used to attend functions at each other's place. Their course ended in the year 2000 and thereafter he started working as Manager MICOWOSH at Ahmedabad but still they used to talk to each other on telephone. He stated that the 7 marriage of Shivani Gaur was fixed for 16.02.202. To attend the marriage he had reached Delhi in the morning of 15/02/02 by train and went to the house of Nitish. On 15.02.02 in the evening the ladies sangeet was organised at the house of Shivani Gaur which was attended by him alongwith Nitish at her residence at Ghaziabad. Besides, their friend Bharti Yadav, her sister Bhawna Yadav and their cousin brother Rakesh @ Rocky were also present there and all of them had danced in the ladies sangeet. It is stated that on 16.2.02 they had reached Diamond Palace Ghaizabad at about 10.15 pm to attend the marriage of Shivani Gaur. After meeting Shivani Gaur and her family members he alongwith the deceased and Gaurav Gupta reached the garden for meals and while they were taking meals at 8 about 12 mid night one tall and fair person came there and told the deceased ''Maine Aapko Kahin Dekha Hain, Aapka Naam Kya Hain''. At this deceased disclosed his name to the said person and they both started talking to each other at some distance from Bharat Diwakar and Gaurav and while so talking that tall and fair person took the deceased outside the Diamond Palace. Bharat Diwakar and Gaurav waited for him but he did not return and during this period he enquired about the tall and fair person and was told by the persons that he was Vishal Yadav r/o Raj Nagar. Thereafter he tried to contact deceased on his mobile No. 9811283641 but his mobile was found switched off, as such he could not contact him. At about 2 am Gaurav Gupta went back. Bharat Diwakar waited for the 9 deceased till 2.30 am at the Diamond Palace and thereafter he returned to the house of deceased at Delhi in the taxi and went to sleep. Till 5am when Nitish did not return home, his mother Smt Neelam Katara was worried. Then she asked Bharat Diwakar about the deceased and he told her that Nitish had stayed back at Ghaziabad at night. On 17.02.02 Bharat Diwakar went to Ghaizabad and made enquiries from PS Kavi Nagar about Nitish but did not get any information. It is stated that thereafter Smt Neelam Katara also went to PS Kavi Nagar Ghaziabad and lodged the FIR regarding missing of her son. This witness also stated to the police that on that day Nitish was wearing red coloured kurta, white churidaar pajama and had wrapped a white shawl. After recording of the statement of this witness the site ie 10 Diamond Palace was inspected by the SI Anil Somania at the instance of Bharat Diwakar and a siteplan Ex.PW 35/1 of Diamond Palace was also prepared. IO also recorded the statements of Sandeep Goyal, the owner of Diamond Palace U/s 161 Cr PC of Jai Prakash Pandey, the security guard at the Diamond Palace on the night of the incident who stated that his duty was at the main gate of Diamond Palace on 16.02.02 as a marriage was being celebrated there. At about 12/12.30 mid night he saw 3/4 boys who came out of the hall and sat in a long car and one of them was wearing red coloured kurta, churidaar pajama and white shawl. He also stated that those boys shaked hands with some boys who were standing outside and thereafter they went away in the long car at a fast speed towards West 11 direction but this witness could not tell the number and colour of the vehicle in which those boys had gone and he explained that since it was a marriage function and there were several vehicles so he did not pay much attention to the colour and number of the vehicle.
iv) On the same day the houses of both the accused Vishal Yadav and Vikas Yadav were raided but neither the accused persons nor Nitish could be traced out. Besides, they were searched at other places also by the police but met with no success.
v) Thereafter again on 18.02.02 search was conducted for Nitish as well as both the accused persons and in the process the IO reached the official residence of Sh DP Yadav at 15 Balwant Rai Lane New Delhi (since he 12 was MP during the relevant period) where Kamal Kishore, the security guard of Sh. DP Yadav met him and was brought to PS Tilak Marg where he was interrogated and memo interrogation was prepared. Besides his statement U/s 161 Cr PC was also recorded to the effect that on intervening night of 16/170202 at about 1/1.30 am accused Vikas and driver Anil alongwith one another person of fair complexion, clean shave wearing red coloured long kurta, churidaar pajama and white coloured shawl came there in a long car with high back and they stayed there for half an hour. Afterwards Vikas and the person in red coloured kurta went away in the same vehicle. Whereas the driver Anil went and slept in his room. He also stated that the vehicle was driven away by Vikas, whereas the 13 person in red kurta sat next to him in front.
vi) During the course of investigation statement of Bharti Yadav U/s 161 Cr. PC was recorded which revealed that of Ms Bharti Yadav was a student of IMT Ghaziabad alongwith deceased Nitish Katara, Bharat Diwakar, Gaurav Gupta and Shivani Gaur during the year 19982000 and they were all very close friends. It also revealed that the friendship between Ms Bharti Yadav and the deceased converted into a love affair. Even after completion of their course in the year 2000 from IMT they both remained in touch with each other, used to roam around together and got themselves photographed, exchanged gifts and Ms. Bharti Yadav had gifted Esprit wrist watch to the deceased in Dec 2001. They both wanted to marry each other. The 14 deceased had already spoken to his mother for their marriage, whereas their affair was known to the Mami and Bua of Ms Bharti Yadav and she was told by them that they would speak to Sh DP Yadav for her marriage with Nitish only after the elections of Vikas. It is further mentioned in her statement U/s 161 Cr.PC that on 16/2/02 the marriage of Shivani was fixed where she alongwith her family, Bharat Diwakar, Nitish Katara, Gaurav Gupta and Yash Tomar were invited to attend the marriage. A day prior to the marriage , 'mahila sangeet' was arranged at the residence of Shivani Gaur which was attended by her and her friends where they had danced together. On 16/2/02 the marriage of Shivani Gaur took place at Diamond Palace, Kavi Nagar, Ghaziabad which was attended by her alongwith her sister 15 Bhawna Yadav, her mother, her brother accused Vikas Yadav, her bua's son accused Vishal Yadav and Sukhdev Pehalwan resident of Dewaria, working in their liquor office at Bulandshahar. The marriage was also attended by Bharat Diwakar, Nitish Katara, Yash Tomar and Gaurav Gupta. She got clicked photographs with Bharat Diwakar, Nitish Katara and Gaurav Gupta on the stage and had also danced in the marriage with Nitish Katara. At 1:30am she came to know that Nitish was called away by the accused persons and their coaccused Sukhdev, so she became upset. She searched for them in the Diamond Palace but could not trace them. It is further mentioned in her statement that accused persons had come there in Tata Safari. At about 2:15am she called from her mobile No. 9810038469 to the landline Nos installed at her 16 residence as she was suspecting that accused persons may not commit some untoward incident with Nitish Katara as they had not liked her dancing with Nitish Katara and her getting the photographs clicked with him.
vii) It also revealed during investigation that on 16.02.02 the marriage of Shivani Gaur was attended by both the accused persons namely Vishal Yadav and Vikas Yadav alongwith their co accused Sukhdev Pehalwan r/o Dewaria, an employee of Sh DP Yadav in the office of liquor at Bulandshahar . Besides, the marriage was attended by Ms Bharti Yadav, her sister Bhawna Yadav and their mother Smt Umlesh Yadav. The marriage was videographed and photographed. The marriage function was attended by 600 to 700 persons.
viii) It further revealed during investigation 17 that both the accused Vikas and Vishal Yadav and their co accused Sukhdev Yadav took deceased in a Tata Safari from Diamond Palace towards Hapur chungi and their vehicle was stopped by police officials namely Ct Satender Pal Singh and Ct. Inderjeet Singh near Diamond Palace for a routine checking. At that time accused Vikas Yadav was driving the said vehicle, Nitish was sitting besides him on front seat, whereas accused Vishal Yadav was sitting behind the deceased in the rear seat and co accused Sukhdev was sitting behind accused Vikas Yadav on the rear seat.
ix) During investigation it further revealed that on that day around 12.30 mid night after some distance near crossing of Hapur Chungi Nitish was spotted in the company of accused Vikas Yadav, Vishal Yadav and their co accused 18 Sukhdev Yadav travelling in Tata Safari bearing registration No. PB 07H 0085 when accused Vikas Yadav had an altercation with PW33 Ajay Katara whose scooter broke down on the road and he was asked to remove the scooter from the road immediately. As per the statement of Ajay Katara recorded U/s 161 Cr PC by the police on 18.3.2002 all the accused persons were known to him prior to the incident as accused Vikas Yadav is the son of Sh DP Yadav, the then Member Parliament, accused Vishal Yadav was the cousin brother of accused Vikas Yadav and accused Sukhdev Pehalwan was an employee of Sh DP Yadav.
x) During investigation it further revealed that on 17.02.2002 deadbody of an unknown person was found lying naked in burnt condition at Shikarpur Road within the 19 jurisdiction of PS Kotwali and it was spotted by PW 23 Virender Singh who gave information in this regard to the PS Khurja which was recorded vide GD No. 12 Ex. PW 4/A. On this information PW4 Inspt CP Singh of PS Khurja reached the place where deadbody was lying. The photographs Ex.PW 4/2 and Ex.PW 4/3 of the deadbody were taken. Panchnama Ex.PW 3/2A was prepared and lateron the siteplan Ex.PW 4/4 of the place was also prepared. It was found that left hand, fingers and palm of the deadbody were not burnt.
xi) The deadbody was removed to the mortuary of the District Hospital Bulandshahar in sealed condition through PW 5 Ct Mudasar Ali and Ct Mahender Singh for postmortem. Efforts were made for the identification of the deadbody.
20
xii) The postmortem was conducted on the deadbody of unknown person by Dr Anil Single at District Hospital Bulandshahar UP on 18.2.02 and the deadbody was kept in the mortuary at Bulandshahar for identification. As per the postmortem report the cause of death was head injury. The postmortem report is Ex.PW 3/3.
xiii) On the basis of the aforesaid postmortem report case FIR No. 216/02 U/s 302 /201 IPC was registered with PS Khurja Nagar on 19/02/02. On the same day after coming to know about the recovery of the deadbody of an unknown person by the police of PS Khurja Nagar SI Anil Somania reached there in the evening but could not meet Inspt CB Singh as he was not available at that time. On 21.2.02 the complainant alongwith her 21 younger son Nitin and other family members reached mortuary Bulandshahar on receipt of information from PS Kavi Nagar that a deadbody of an unknown person similar to the description of her son was recovered from Shikarpur Road in a burnt condition. From the hands and feet and the structure of the deadbody she identified the same to be of her son Nitish but since the other family members were not fully satisfied, as such to be very sure she asked for DNA test and finger prints examination.
xiv) SI Anil Somania moved an application on the same day before CJM Bulandshahar for seeking possession of the deadbody and transferring the deadbody to AIIMS hospital for the purpose of finger print and DNA as there was no facility to preserve the deadbody. 22 The application was allowed by CJM Bulandshahar UP and on the same day ie 21.2.02 the body was removed to AIIMS hospital, New Delhi and was kept in freezer No. 8. On 22.2.02 in the presence of the IO finger prints expert of Delhi Police namely Chet Ram took finger prints of the left hand of the deadbody in AIIMS hospital. On the same day Chet Ram also obtained standard finger prints of the deceased Nitish Katara from RTO Office at Sarai Kale Khan New Delhi, from where a driving licence was issued to the deceased Nitish Katara. On the same day ie 22.2.02 blood samples of Sh Nishit Katara and the complainant Neelam Katara ie parents of Nitish Katara were taken for DNA test, in compliance of the order of CJM Bulandshahar ( UP). On the same day sample tissues from 23 the deadbody for the purpose of DNA test were taken and all the samples were sent to CFSL Calcutta for analysis on 25.2.02 through SI RC Makholia.
xv) As per the report of the finger prints experts dtd 25.2.02, PW 2 SI Chet Ram ( Finger Print Expert) with Finger Print Bureau recorded the left hand finger impressions of the said Unidentified deadbody on 22.02.02.
As per the result of comparison recorded left index finger impressions of the said unidentified deadbody were compared with the specimen left index finger impression of Sh Nitish Katara s/o Sh Nisheeth M Katara r/o 7 Chemsford Road New Delhi 110055 ( Licence No. P06022000120296) available with Deptt of Transport Govt. of NCT, Delhi and were found identical.
24
On the basis of the finger prints expert report Section 302/201/34 IPC were added to the FIR on 25.2.02, as the identity of the body was established beyond any reasonable doubts, On 26.2.02 an information was sent to CJM Ghaziabad (UP) about the addition of the offences U/s. 302/201/34 IPC in FIR bearing No. 192/02 of PS Kavi Nagar.
xvi) On 22.2.02 letter Ex PW 8/A was sent by Sh AK Raghav SP City Ghaziabad to the director of AIIMS requesting for DNA finger printing of suspected deadbody of deceased Nitish Katara in terms of the order of the CJM Bulandshahar dtd. 21.2.02 Ex. PW 8/C. This letter was marked to PW 8 TD Dogra vide endorsement Ex. PW 8/B by the director AIIMS. Thereafter under the supervision of PW 8 DR. TD Dogra of AIIMS hospital blood sample of Sh NM Katara 25 and Smt Neelam Katara were collected by PW 10 Dr Sanjeev Lalwani .
From the unknown deadbody suspected to be of Nitish Katara son of Sh NM Katara the following samples were collected from the deadbody: a Entire right femur bone ( Weight Aprox. 900gm).
b Piece of Right Calf muscle (Weight 80gm Approx.) c Piece of Right Lung (Weight 20gm Approx.) d Pieces of kidney of both sides (Weight 15gm each Approx,) e Piece of Heart muscle ( Weight 20gm Approx.) f Piece of liver tissue ( Weight 25gm Approx.) 26 g Pieces of spleen ( Weight 25gm Approx.) h Blood sample of gauze piece from right side of the heart.
On 25.2.02 the blood samples of Sh NM Katara and Smt Neelam Katara alongwith the sample collected from the unidentified deadbody were sent to the office of Central Forensic Science Laboratory, Bureau of Police Research & Development, Ministry of Government Home Affair, Government of India, Calcutta in one sealed thermocol box, three sealed paper packets and one sealed cloth packet which were sealed with the corresponding seal impression through SI RC Makholia. The three sealed paper packets were marked A,B and C in the Laboratory and contained Exhibit A, Exhibit B and Exhibit C respectively. The sealed thermocol 27 box contained Exhibit E, Exhibit F, Exhibit G, Exhibit H, Exhibit I and Exhibit J . The description of the exhibits is as follows: Exhibit A: Blood Stain I A white gauze piece having large reddish brown stains, said to be blood sample of Mr NM Katara ( Blood donor card annexure I). Exhibit B: Blood Stain II A white gauze piece having large reddish brown stains, said to be blood sample of Mrs Neelam Katara ( Blood donor card annexure II). Exhibit C: Blood Stain III A white gauze piece having large reddish brown stains, said to be blood sample of body (Cl. For. Med. No. 14/2002) Exhibit D: Long Bone A human femur bone of right side, said to be of body. (Cl. For. Med. No. 14/2002). 28 Exhibit E: Tissue Sample l A brown coloured tissue, said to be piece of muscle of body( Cl. For, Med. No. 14/2002) Exhibit F: Tissue Sample Il A red coloured tissue, said to be piece of lung of body( Cl. For, Med. No. 14/2002) Exhibit G: Tissue Sample Iil A brown coloured tissue, said to be piece of kidney of body( Cl. For, Med. No. 14/2002) Exhibit H: Tissue Sample lV A reddish brown coloured tissue, said to be piece of heart of body( Cl. For, Med. No. 14/2002) Exhibit I: Tissue Sample V A brown coloured tissue, said to be piece of liver of body( Cl. For, Med. No. 14/2002) Exhibit J: Tissue Sample Vl 29 A red coloured tissue, said to be piece of spleen of body( Cl. For, Med. No. 14/2002) Exhibit C:Blood Stain III, Exhibit F: Tissue Sample II and Exhibit J: Tissue Sample VI were selected for DNA Profiling Exhibit D: Long Bone, Exhibit E: Tisue Sample I, Exhibit G:
Tissue Sample III, Exhibit H: Tissue Sample IV and Exhibit I: Tissue Sample V were not analysed as they originated from the same source.) RESULTS OF THE EXAMINATION Small portions of Exhibit A: Blood Stain I, Exhibit B: Blood Stain II, Exhibit C: Blood Stain III, Exhibit F: Tissue Sample II and Exhibit J Tissue Sample VI were subjected for DNA isolation by organic extraction method, High Molecular Weight DNA could be isolated from Exhibits A, B & C while degraded DNA was 30 recovered from Exhibits F & J.
DNA from the above mentioned exhibits was subjected to multiplex PCR reaction for fifteen STR loci & amelogenin using commercially available Power Plexd 16 kit. Allelles of all loci in the Exhibits amplified successfully. The amplified products alongwith controls were run on Automated DNA Sequencer and analysis was carried out using GeneScan, Genotyper and Power Typer 16 Macro softwares with respect to standard ladder. The resultant allele distribution for the studied loci in the different exhibits is shown in Table:
Locus.M Control Internal Exhibit Exhibit Exhibit C: Exhibit Exhibit arker 9947A Control A: B: Blood Blood F: J:
(AKS) Blood Stain II Stain III
Tissue Tissue
Stain I (said to (said to
Sample Sample
be of be body)
(said to II (said VI (said
Mrs.
be of to be to be of
Neelam
Mr NM of body)
Katara)
Katara) body)
D3S13 14,15 14,16 15,16
58 16 16 16 16
THOI 8,9,3 6,9,3 6 7,9,3 6,7 6,7 6,7
31
D3S13 14,15 14,16 15,16
58 16 16 16 16
D2lS1 28,32.2 30.2, 29, 31.2 29, 30.2 29, 29, 30.2
1 30 33.2 30.2
D18S 15,19 14,17 16,17
51 14 17 17 17
Penta 12,13 7,13 7,16 11,18 7,18 7,18 7,18
E
DSS8 12,14 10,11
18 11 11 11 11 11
D13S3 8,12 8,11 8,11 8,11 8,11
17 11 11
D7S8 10,11 8,9 10,11 11,12 11,12 11,12
20 12
D16S 11,12 9,11 10,11 10,11 10,11 10,11
539 11
CSFI 10,12 11,12 10,11 11,13 10,13 10,13 10,13
PO
Penta 12,13 10,11 9,11 10,11 10,11 10,11
D 12
VWA 17,18 14,17 16,17 17,19 17 17 17
D8S11 10,17 13,16 13,15 13,15 13,15 13,15
79 13
TPOX 8 8,9 8,10 9,11 9,10 9,10 9,10
FGA 23,24 20,23 21.2,24 22 22,24 22,24 22,24
Amel xx xy xy xx xy xy xy
ogeni
n
From the above results, it is observed that: a. the genetic profiles of Exhibit C: Blood Stain III, Exhibit F: Tissue Sample II and Exhibit J: Tissue Sample VI are identical and 32 belong to a male individual.
b. one of the allele of the studied amplified loci of body ( Exhibit C: Blood Stain III, Exhibit F: Tissue Sample II and Exhibit J: Tissue Sample VI ) matches with one of the allele of Exhibit B: Blood Stain II ( said to be of Mrs. Neelam Katara) c. the non maternal alleles of the studied amplified loci of body ( Exhibit C: Blood Stain III, Exhibit F: Tissue Sample II and Exhibit J: Tissue Sample VI ) are matching with one of the allele of Exhibit A: Blood Stain I ( said to be of Mr. NM Katara) d. the likelihood of Mrs. Neelam Katara ( source of Exhibit B: Blood Stain II), than any other person at random, contributing maternal alleles of the studied loci to the body ( source of Exhibit C: Blood Stain III, Exhibit F: Tissue 33 Sample II and Exhibit J: Tissue Sample VI) is 99,999 approx.
e. the likelihood of Mr. N.M Katara ( source of Exhibit A: Blood Stain I), than any other person at random, contributing non maternal alleles of the studied loci to the body ( source of Exhibit C: Blood Stain III, Exhibit F: Tissue Sample II and Exhibit J: Tissue Sample VI) is 99,999 approx.
From the above observations, it is concluded that:
the body ( source of Exhibit C: Blood Stain III, Exhibit F: Tissue Sample II and Exhibit J: Tissue Sample VI forwarded vide Cl. For. Med. No. 14/2002) belongs to biological son of Mrs. Neelam Katara ( source of Exhibit B: Blood Stain II) and Mr. NM Katara ( source of Exhibit A: Blood Stain I).34
On 6.3.2002 DNA report was received from CFSL Calcutta through SI RC Makholia which established the identity further that the sample tissues of the deadbody were belonging to biological son of Mrs. Neelam Katara and her husband Mr Nishit Katara.
xvii) Since during investigation the accused persons were named in the FIR dtd.
17.2.02 of PS Kavi Nagar, Ghaziabad, so the raids were conducted by the police in their search regularly, at their known and given addresses at different places but they were not traceable and they were absconding from the night of incident itself. On 20.2.02 CJM Ghaziabad (UP) on the report of the police issued process U/s. 82 Cr. PC against accused Vikas Yadav and Vishal Yadav . xviii) On 23.2.02 it was reported in the TV and the media that both the accused Vikas 35 Yadav and Vishal Yadav, were arrested by police of PS Dabra (MP) under Arms Act, on that day at about 4.15 am. Both the accused persons disclosed before Dabra police that they were involved in the abduction of Nitish Katara. Initially they tried to conceal their identity by giving false names to Dabra police. Separate cases were registered at PS Dabra (MP) against both the accused persons under Arms Act.
xix) After coming to know about the arrest of the accused persons at Dabra ( MP), SI Anil Somania, IO of this case alongwith other members of police party reached Dabra (MP) at 11 pm on 23.2.02 for taking the custody of the accused persons. On 24.2.02 Court at Dabra granted two days transit remand of the accused persons for producing the accused persons 36 before the Court at Ghaziabad. At about 3.30pm custody of both the accused persons was taken by SI Anil Somania on that day after their medical examination.
xx) On 25.02.02 police party alongwith the accused persons reached at Ghaziabad at about 5 am and produced both the accused persons before CJM Ghaziabad (UP). Accused persons were remanded to judicial custody on that day. On the same day ie 25.02.02 SI Anil Somania moved an application before CJM Ghaziabad (UP) for permission to record the statement of the accused persons in the jail as in State of UP, accused cannot be interrogated / examined, without the permission of the Court.
xxi) On 25.02.2002 SI Anil Somania recorded the statement of both the accused 37 persons separately in jail. Both the accused persons disclosed that love affair was going on between Ms. Bharti Yadav and the deceased for a long time and with the passage of time it came to the knowledge of the society and they were feeling humiliation and this was not acceptable to them. As such when they saw Nitish Katara in the marriage they both i e accused Vikas Yadav and Vishal Yadav thought that it was the best opportunity which they may not get in future. Then they had dinner immediately after the arrival of the barat. Nitish Katara was having food alongwith his friends and then Vishal Yadav was sent by the accused Vikas Yadav to bring Nitish Katara outside. After he was brought outside by accused Vishal then they made him sit on the front seat of their Safari car at about 12 38 am. Accused Vikas drove the car, whereas accused Vishal and co accused Sukhdev Pehalwan sat on the back seat of the car and while they were going to Khurja, in between Bulandshahar and Khurja co accused Sukhdev Pehalwan and accused Vishal Yadav pressed down Nitish Katara, whereas accused Vikas Yadav immediately stopped the car on the side of the road and gave a hard blow of a small hammer on the head of Nitish Katara due to which he became unconscious and after few minutes he died. It is further disclosed that thereafter they took his deadbody in the car to Khurja Phasu Hill and about one km away from Shikarpur Teeraha they put his deadbody along side of the road and accused Vishal removed mobile from the pocket of the deceased and the wrist watch from his hand 39 and concealed th same in the bushes standing along side the road, whereas Vikas Yadav took the hammer from the car and concealed the same inside the bushes standing nearby. Accused Vikas Yadav took out diesel from the car through pipe and poured the same on the deadbody of Nitish Katara and burned the same. Accused Vikas Yadav disclosed that he could get the hammer recovered from the place where it was concealed. Similarly accused Vishal disclosed that he could recover the wrist watch and the mobile phone from the place where these were concealed and they could also point out where the deceased was murdered and his body was burnt lateron by them. They could also get recovered Safari Car which was hidden by them in Alwar Rajasthan.
40xxii) On 25.02.02 itself accused Vikas Yadav gave an interview to the media that on 16/17 0202 he had a minor quarrel with them (Unse) outside Diamond Palace. The word 'Unse' is used in context of Nitish Katara . xxiii) On 26.02.02 SI Anil Somania moved an application before CJM Ghaziabad ( UP) for the police custody of both the accused persons and on 27.2.02 twenty four hours police custody remand was granted by CJM Ghaziabad effective from 28.2.02 at 9 am till 1.3.02 (9 am). The accused persons were also allowed by the Court to keep one lawyer with them during police custody remand on their separate applications.
xxiv) On 28.2.02 both the accused persons were taken in police custody by SI Anil Somania from the jail after their medical 41 examination, as directed by the Court. Thereafter both the accused persons led the police party near Railway crossing of Aughwarpur and pointed the place where Nitish Katara was murdered by them. SI Anil Somania prepared Ex.PW35/23 the siteplan of the place. Then the accused persons led the police party to T point of Phasu and Shikarpur road and pointed out blackish spot on the ground and told that the deceased was burnt there. Accused Vikas Yadav got recovered a hammer Ex.Pl from the nearby bushes and accused Vishal Yadav got recovered a wrist watch Ex.PW7/Article A2 from the bushes/fields. SI Anil Somania prepared site plan Ex. PW35/24 of each spot and sealed the hammer and wrist watch separately at the spot. The recovery of hammer and wrist watch was effected in the 42 presence of Sh Satpal Yadav, advocate for the accused persons and public witnesses Raghu and Aslam. The sealed parcels of hammer and wrist watch were seized vide a recovery memo Ex.PW34/1 prepared by the IO SI Anil Somania. A copy of the recovery memo was received by Sh Satpal Singh Yadav, advocate at the spot. Both the accused persons also received a copy of the recovery memo separately under their signatures on the spot. xxv) Thereafter on the same day ie on 28.2.02 both the accused persons led the police party to House No 2 Maharaja building Alwar (Rajashtan) for the recovery of Tata Safari vehicle and cell phone of the deceased Nitish Katara but no vehicle was recovered from there. From there both the accused led the police party to Sariska Palace, Alwar for the recovery 43 of Tata Safari, but vehicle was not recovered from there too. The accused persons further led the police party to a house at Shanti Kunj in Alwar for the recovery of Tata Safari but again vehicle was not recovered from there. SI/ IO Anil Somania prepared search memos of all those places Ex.PW35/25, PW35/46 and PW35/47, which were searched for the recovery of Tata Safari and cell phone of the deceased in pursuance to the disclosure statements of the accused persons. The police party alongwith the accused persons and their lawyer returned from Alwar (Rajasthan) after midnight of 28/02/02 / 01/03/02 and after the medical examination of the accused persons as directed by the Court, they were put in lockup of PS Kavi Nagar. The recovered hammer and wrist watch were deposited by IO in malkhana of 44 the PS Kavi Nagar in sealed condition. xxvi) On 01/03/02 both the accused persons were produced in the Court after their medical examination and application was moved by the IO Anil Somania for grant of ten days police custody remand for the recovery of Tara Safari and cell phone of the deceased, however the application was dismissed by the CJM Ghaziabad vide order dtd. 2.3.02. The order of the CJM was challenged by the police in the Court of District & Sessions Judge Ghaziabad through a revision petition. The Ld. Session Judge Ghaziabad partly allowed the petition and directed the CJM Ghaziabad to hear the police remand application of the IO again keeping in view that period of 24 hours of police custody was not sufficient to effect the recovery of Tata Safari and cell phone of the 45 deceased in pursuance to the disclosure statements of the accused persons. The said order was passed by Ld. Session Judge on 6.3.02.
xxvii) On 06.03.02 both the accused persons were taken to Dabra (UP) by SI JK Gangwar in compliance of the order passed by the Magistrate at Dabra.
xxviii) On 08.03.02 CJM Ghaziabad passed order for the police custody remand of the accused persons for 48 hours after hearing the investigating agency, as per the order of the Session Judge Ghaziabad dtd. 06/03/2002 the police custody remand was to be effective from 9.3.02 at 2pm onwards. IO SI Anil Somania rushed to Dabra (MO) on 8.3.02 itself and after reaching there moved an application before the Magistrate at Dabra for the custody 46 of the accused persons in compliance of the order of CJM Ghaziabad (UP) dtd. 08.03.2002. xxix) As per the prosecution the lawyers of the accused persons delayed the hearing of the application on the ground that they have challenged the order of CJM Ghaziabad (UP) in Allahabad High Court and there was possibility of a stay order from the Hon'ble High Court. Even affidavits were filled by the lawyers of the accused persons but no stay order was received/ passed by the High Court so at 6.40 pm on 9.3.02 Magistrate at Dabra allowed the application of SI Anil Somania for handing over the custody of he accused persons to him. However jail authority at Dabra (MP) refused to hand over the custody of the accused persons to the IO on the ground that the jail had already been closed.
47xxx) On 10.3.02 at about 9.30am custody of the accused persons was given to the IO SI Anil Somania by the jail authorities after their medical examination. From Dabra police party alongwith the accused persons left for Chandigarh for the recovery of Tata Safari but when they reached at Agra (UP), accused persons disclosed that Tata Safari and cell phone can be recovered from Shamshan Ghat, near taxi stand at Panipat (Haryana). Accused persons led the police party to Shamshan Ghat near taxi stand Panipat but nothing was recovered from there in pursuance to their disclosure statements. House search memo Ex.PW35/48 was prepared by PW35 in this regard. Since it was late at night so police party alongwith the accused persons stayed at Panipat (Haryana) on 10.3.02. At Panipat 48 (Haryana) IO SI Anil Somania again interrogated the accused persons and then they disclosed to the IO that the Tata Safari bearing No. PB 07H 0085 was at Karnal (Haryana).
xxxi) On 11.3.02 both the accused persons led the police party to a factory namely AB Coltex at Karnal (Haryana) and from inside the said factory got recovered Tata Safari bearing No. PB 07H 0085 in the presence of PW 27 Sultan Singh chowkidar of the factory. IO prepared the recovery memo Ex. PW 27/1 of the Tata Safari but the accused persons refused to sign the same, however the same was signed by chowkidar of the factory namely Sultan Singh.
xxxii) On the same day police party alongwith the accused persons and the 49 recovered Tata Safari came back to Ghaziabad and after medical examination accused persons were produced in the Court of CJM Ghaziabad and accused were remanded to judicial custody. IO deposited the Tata Safari No. PB07H 0085 in the malkhana of PS Kavi Nagar.
xxxiii) During investigation it was revealed that Tata Safari No PB 07H 0085 was registered in the name of Oswal Sugar Limited Company GT Road Mukerian Distt.
Hoshiarpur (Punjab) in which Sh DP Yadav, father of the accused Vikas Yadav was one of the directors. It was also found during investigation that part of the management of AB Coltex Company at Karnal is same as in Oswal Sugar Ltd Mukeria Hoshiarpur (Punjab). xxxiv) PW Ajay Katara who had allegedly last seen the deceased in the company of both 50 the accused and their co accused Sukhdev Pehalwan in the Tata Safari bearing No PB07H 0085 at Hapur Chungi on the intervening night of 16/170202 when his scooter was broke down, his statement was recorded by the IO on 18/03/02. He gave the explanation for delay in informing the police by saying that earlier also he had approached the PS but SO was not available.
xxxv) Coaccused Sukhdev Pehalwan was absconding since the date of incident and was not traceable so on 13.03.02. IO moved an application before the Court for initiating proceedings U/s. 82/83 Cr PC against him. On 30.3.02 accused Sukhdev Pehalwan was declared PO and prize of Rs. 2500/ was kept for his arrest. Accused Sukhdev Pehalwan, who was declared as PO during trial was finally arrested 51 on 23.02.2005 from Deweria (UP) and now is facing separate trial in this court itself. xxxvi) The body of Nitish Katara was cremated on 12.03.2002.
xxxvii) On 2.4.2002 complainant identified the recovered wrist watch as of her son Nitish Katara ( now deceased) in a judicial TIP before a Special Executive Magistrate at Ghaziabad.
xxxviii) During investigation it was found that the deceased Nitish Katara was using mobile phone No. 9811283641 and Ms Bharti Yadav was using mobile phone No. 9810038469 which was registered in the name of her elder sister Bhawna Yadav at the address of R 4/32Raj Nagar belonging to Sh DP Yadav. Accused Vikas Yadav was using Cell phone No 9811105905 which was registered in the 52 name of Kunal Yadav, younger brother of the accused. The said mobile phone was registered with address B 14 Gulmohar Park New Delhi where Sh DP Yadav was also having office of his company Oswal Sugar Ltd. Another cell phone No. 9811462100 was being used by Mr DP Yadav which was registered in the name of Mr Vijay at the address of B 14 Gulmohar Park New Delhi. Complainant Neelam Katara was using cell phone No 9810206299 at that time and her younger son Nitin Katara was using cell No. 9811297136. He was also using another cell phone No. 9822288216 of Pune, where he was studying/working at that time. Witness Bharat Diwakar was using cell phone No. 9810154964 and Gaurav Gupta had used phone of Yash Tomar bearing No. 9811220691 on the intervening night of 16/170202. IO collected 53 the call records of the aforesaid phones for the relevant period from the Airtel and Hutch Company. IO also collected cell ID charts of both the companies of Delhi and NCR areas. xxxix) It was found during investigation that landline No 4713790, 4751083 and 4714101 were installed at the residence of Sh DP Yadav at Ghaziabad. Sh. Bharat Singh maternal uncle of the accused Vikas Yadav was having landline No. 4721001 at his residence at Ghaziabad. Complainant was having landline Nos. 3747555 and 3366629 installed at house at 7 Chemsford Road, New Delhi. Deceased Nitish Katara had received several calls on his cell phone from the landline Nos. of Sh. DP Yadav and Sh. Bharat Singh before the date of incident. There were several calls made between Ms Bharti Yadav, Nitish Katara, Bharat Diwakar, Gaurav 54 Gupta, complainant Neelam Katara, Nitin Katara etc before and after the incident. xl) After the incident Ms Bharti Yadav sent emails to Nitin Katara about the incident and conduct of the accused persons.
xli) During the course of investigation it revealed that Ms Bharti Yadav had opened an account No. 09065103027025 in BNP Paribas Bank, Connaught Place New Delhi which was in a building adjacent to the office of Nitish Katara. Ms Bharti Yadav while opening the account had given the address of Nitish Katara in account opening form in the bank. The initial amount of Rs 10,000/ for opening the account was also paid through cheque No. 239166 of HDFC Bank from the account of Nitish Katara bearing No. 003111144111. After the death of Nitish Katara Ms Bharti Yadav 55 changed her address in BNP Paribas bank from 7 Chemsford Road New Delhi to B14 Gulmohar Park, New Delhi where company namely Oswal Sugar Ltd. of his father is based. The said company also issued a certificate in favour of Ms Bharti Yadav at the time of change of address to the effect that B 14 Gulmohar Park New Delhi was her office cum residential address.
xlii) During investigation it also revealed that on 24.8.2000 Ms. Bharti Yadav, her sister Bhawana Yadav, her fianceD eepak Yadav, Nitish Katara and Rocky Yadav visited Bombay to celebrate the birthday of Bhawana Yadav via a Jet Airways Flight No. 9W332. During the course of investigation IO SI Anil Somania recorded the statements of the witnesses and collected the relevant records.
56xliii) On 16.4.2002 recovered hammer Ex. P1 was sent to FSL Malviya Nagar Delhi for examination through Ct Dayanand. On 17/5/2002 director FSL sent his report to CJM Ghaziabad alongwith the hammer. As per the report human blood was detected on the hammer by the forensic expert.
xliv) On 3.5.2002 IO SI Anil Somania filed chargesheet against accused persons namely Vikas Yadav and Vishal Yadav in CJM Ghaziabad (UP). Accused Sukhdev Pehalwan was shown as PO as he was absconding since the date of the incident.
xlv) On 06/05/2002 complainant Smt Neelam Katara filed a transfer petition in the Hon'ble Supreme Court on the ground that there was no chance of fair and impartial trial at Ghaziabad because of the influence of the 57 accused persons and Sh DP Yadav who was a member of Parliament at that time. On 23/08/02 Supreme Court transferred the case from the Court of Ghaziabad to Delhi. xlvi) The chargesheet also finds mention that accused Vikas Yadav was involved in three criminal cases the details of which are given as below:
1. Case No. 109/91 U/s 302 IPC PS Kavi Nagar.
2. Case No. 282/99 U/s 302/201 IPC PS Mehrauli, Delhi.
3. Case No. 99/02, Sec. 25 Arms Act PS Dabra, Distt. Gwalior, MP.
xlviii) The accused Vishal Yadav was found involved in the following case :
1. Case No. 100/02, Sec. 25 Arms Act PS Dabra, Distt. Gwalior, MP.
3. Charge U/s. 364/302/201/34 IPC was 58 framed against both the accused, to which they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined 43 witnesses in all which are as follows: PW 1 HC Nem Pal Singh PW 2 Chet Ram PW 3 Dr. Anil Singhal PW4 Inspt Chander Pal Singh PW 5 Ct. Mudassar Khan PW6 Archana Sharma PW7 Ram Lakhan Singh PW8 Dr. T.D Dogra PW9 Vikram Singh PW10 Dr.Sanjeev Lalwani PW11Shivani Gaur PW12 Kulwant Kaur PW13 Bhagwan B.Mathur PW14 Sandeep Goyal PW15 Vijay Kumar PW16 Ved Pal Singh PW17 SI Ramesh Chand Makholia 59 PW18 Hemant Narayan PW19 Jai Prakash Pandey PW20 Yashoman Tomar PW21 Deepak Gupta PW22 RK Singh PW23 Virender Singh PW24 Shadi Ram PW25 Bharat Diwakar PW26 Gaurav Gupta PW27 Sultan Singh PW28 Ct Inderjeet Singh PW 29 Ct Brij Mohan Mishra PW 30 Smt Neelam Katara PW 31 Umesh Sharma PW 32 Ct. Satender Pal Singh PW 33 Ajay Kumar / Ajay Katara PW 34 SI JK Gangwar PW35 SI Anil Somania PW36 Revati Lau PW37 AK Sharma PW38 Bharti Yadav PW39 Nitin Katara PW40 Shvendra Tiwari PW41 Gulshan Arora.60
PW42 Bhawana Yadav PW 43 SP Singh
5. Formal witnesses :
i) PW 1 HC Nem Pal Singh is the duty
officer who recorded FIR No. 192/02
Ex.PW 1/2.
ii) PW 13 Sh.Bhagwan B.Mathur, Executive
Coordinator IMT Ghaziabad who produced the student record of PWs Bharat Diwakar, Gaurav Gupta, Shivani Gaur and Nitish Katara (now deceased) as Ex.PW 13/1 to 5 respectively to prove that they all were students of IMT Ghaziabad during the year l9982000.
iii) PW 14 Sh. Sandeep Goyal, the owner of Diamond Palace Banquet Hall at Kavi Nagar, where the marriage of PW11 Shivani Gaur took place and from where the deceased was allegedly abducted.
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iv) PW 16 Sh. Ved Pal Yadav the owner of Aravali Tourist Taxi Services who had provided taxi No. DL lY 4998 on 16/2/02 at 7.15 pm to Nitish Katara on his requisition.
v) PW 24 Sh. Shadi Ram, driver with Aravali Tourist Taxi Services, who had taken Nitish Katara and Bharat Diwakar to Diamond Palace on 16.02.02 in the taxi.
vi) CW2 Murari Lal Aggarwal, Executive Clerk from the Court of ACJM Dabra had produced the record pertaining to remand papers and judicial proceedings in case FIR No. 99/02 under Arms Act against accused Vikas Yadav and case FIR No. 100/02 under Arms Act against accused Vishal Yadav as Ex. CW 2/l to Ex.CW 2/4 respectively.
vii) PW 43 Sh. SP Singh Commercial Officer BSNL Ghaziabad who proved the 62 relevant records of telephone Nos. 4714101, 4751083, 4713790 and 4721001.
6. Witnesses relating to the marriage of Shivani Gaur at Diamond Palace on the intervening night of 16/2/02 17/2/02 and regarding the presence of both the accused namely Vikas Yadav and Vishal Yadav and deceased Nitish Katara are :
i) PW 11 Shivani Gaur.
ii) PW 19 Jai Prakash Pandey, Security Guard at Diamond Palace.
iii) PW 20 Yashoman Tomar.
iv) PW 25 Bharat Diwakar.
v) PW 26 Gaurav Gupta.
vi) PW 31 Umesh Sharma.
vii) PW 38 Bharti Singh Yadav.
viii) PW 42 Bhawana Yadav.
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7. Witnesses relating to
photography/ videography in the marriage ceremony of Shivani Gaur are:
i) PW 6 Archana Sharma.
ii) PW 15 Vijay Kumar
8. Witnesses who saw Nitish Katara in the company of accused persons outside Diamond Palace :
i) PW 28 Ct Inderjit Singh ii) PW 32 Ct Satender Pal Singh
9. Witness who last saw Nitish Katara alive in the company of deceased persons:
i) PW 33 Ajay Kumar
10. Recovery of deadbody & Inquest Proceedings :
i) PW 23 Virender Singh
ii) PW 4 Inspt Chander Pal Singh
64
iii) PW5 Ct. Mudassar Khan had
accompanied Inspt. CP Singh for the recovery of the deadbody.
11. Post Mortem :
i) PW 3 Dr Anil Singhal CMO District Hospital Bulandshahar conducted postmortem on the unidentified deadbody on 18/02/02.
12. Witnesses relating to Finger Prints of the unidentified deadbody:
i) PW 2 Chet Ram, Finger Print Expert with Finger Print Bureau with Malviya Nagar.
ii) PW 35 SI Anil Somania
13. Witnesses to DNA Test on the unidentified deadbody:
i) PW 8 Dr. TD Dogra, AIIMS Hospital 65 New Delhi under whose supervision the blood samples from Mrs Neelam Katara and Mr. N M Katara, the parents of the deceased and samples from the unidentified deadbody of the deceased were collected for DNA test on 22.02.02 vide proceedings Ex.PW 8/F.
ii) PW 10 Dr Sanjeev Lalwani, Sr. Resident AIIMS hospital, New Delhi, who collected the above samples.
iii) PW 17 SI Ramesh Chand Makholia who collected the samples for DNA from AIIMS hospital on 25.2.02 and on the same day he took the same to CFSL Calcutta and deposited there. He also collected the remnants of the samples and CFSL report from CFSL Calcutta on 06.03.2002.
iv) PW 35 SI Anil Somania.
v) PW 37 Dr AK Sharma, Asstt. Director
66
CFSL Calcutta, who proved DNA Report
dated 07.03.2002 Ex.C1.
14. Witnesses to oral identification of deadbody are :
i) PW 30 Mrs, Neelam Katara
ii) PW 34 SI JK Gangwar
iii) PW 35 SI Anil Somania
iv) PW 39 Nitin Katara
15. Witnesses to the Arrest of the accused persons:
i) PW 29 Ct Brij Mohan Mishra of PS
Dabra, District Gwalior MP.
ii) PW 34 SI JK Gangwar.
iii) PW 35 SI Anil Somania.
iv) PW 36 Inspt Ashok Bhadoria of PS
Dabra (He is wrongly mentioned as PW 36 as prior to him PW Revati Laul was examined as 67 PW 36 , hence this witness be read as PW 36A.)
16. Disclosure statement of accused persons :
i) PW 35 SI Anil Somania 17. Pointing out of the place of
murder and place where deadbody was burnt :
i) PW 34 SI JK Gangwar. ii) PW 35 SI Anil Somania
18. Recovery of hammer Ex.Pl at the instance of accused Vikas Yadav :
i) PW 34 SI JK Gangwar
ii) PW 35 SI Anil Somania
68
19. Recovery of wrist watch Ex/PW 7/Article A2 of the deceased at the instance of accused Vishal Yadav :
i) PW 34 SI JK Gangwar. ii) PW 35 SI Anil Somania
20. Identification proceedings of the wrist watch ExPW7/ Article A2 :
i) PW 7 Sh Ram Lakhan Singh, Special Executive Magistrate Ghaziabad
ii) PW 30 Neelam Katara, mother of the deceased.
iii) PW35 SI Anil Somania, IO.
21. Recovery of Tata Safari bearing registration No. PB07H0085 allegedly used in the commission of the crime :
i) PW 27 Sultan, Watchman with AB Coltex, Karnal from where the said vehicle 69 was recovered.
ii) PW 34 SI JK Gangwar. iii) PW 35 SI Anil Somania.
22. Ownership of Tata Safari bearing registration No. PB07H0085 :
i) PW 9 Vikram Singh, STA from Registrar of Companies Punjab, Himachal and Chandigarh.
ii) PW 12 Ms Kulwant Kaur, DTO Hoshiarpur. iii) CW 1 MK Katara director Oswal Sugar Ltd Mukeria (Punjab).
23. Witnesses relating to alleged Admission /confession of accused Vikas Yadav are:
i) PW 36 Revati Lau, NDTV Reporter / Correspondent.70
24. Both the accused persons absconded after the alleged crime :
i) PW 34 SI JK Gangwar ii) PW 35 SI Anil Somania.
25. Motive of the accused persons / relationship of PW Bharti Singh with the deceased :
i) PW 18 Hemant Narainan, Sr. Executive Jet Airways.
ii) PW 30 Mrs. Neelam Katara.
iii) PW 38 Bharti Singh.
iv) PW 39 Nitin Katara
v) PW 40 Shivendra Tiwari, HDFC Bank.
vi) PW 42 Bhawna Yadav.
71
26. The witnesses relating to the
bank account of Ms. Bharti Yadav with BNP Paribas Bank, Barakhamba Road and to the bank account of the deceased with HDFC Bank Surya Kiran Branch, CP, New Delhi :
i) PW40 Shvendra Tiwari, Asstt. Manager, HDFC Bank, Surya Kiran Branch, Connaught Place, New Delhi.
27. Phone call record :
i) PW21 Deepak Gupta, Nodal Officer, Hutchison Essar Telecom Ltd.
ii) PW 22 RK Singh, Bharti Cellur Ltd.
iii) PW 41 Gulshan Arora, Nodel Officer Hutch Essar, Okhla Industrial Area, Phase 2, New Delhi.
28. Statement of both the accused persons 72 was recorded U/s 313 Cr PC .
i) Accused Vikas Yadav in his statement U/s 313 Cr. PC admitted that PW 38 Bharti Yadav is his sister and was student of IMT Ghaziabad from Sept 1998 to Dec 2000. He also admitted that he knew PW 11 Shivani Gaur, who studied with Bharti Yadav in Gargi College. However, he denied it for want of knowledge that both Bharti Yadav and Nitish Katara ( deceased) wanted to marry each other. He further denied that he, his father Sh DP Yadav and coaccused Vishal Yadav were against the marriage of the two on the ground that deceased was from the different community and his family was of a government servant which they considered to be a poor class. He stated that his whole family is educated and even his marriage was fixed in 73 service class. He claimed that he never knew deceased nor their plans to marry so there was no reason for being averse to their marriage. He denied it for want of knowledge that Ms Bharti Yadav presented a wrist watch Esprit Ex.PW7/Article A2 to Nitish in Dec. 2001.
ii) In answer to question No. 18 that on 16.2.02 Nitish Katara made a call from his mobile No. 9811283641 to Ms Bharti Yadav on her mobile No. 9810038469 at 3.42 pm he stated that he was not aware of. Similarly, in answer to question No. 19 that Bharat Diwakar received a call on his mobile No. 9810154964 from Bharti Yadav from her mobile No. 9810038469 at 5.20 pm on 16.2.02, he stated that he was not aware of but he again stated that as per his knowledge Bharti never had a mobile. However, he did not deny the 74 existence of this mobile phone No. 9810038469.
iii) Accused Vikas Yadav admitted that he attended the marriage of Shivani Gaur on 16.2.02 at Diamond Palace alongwith his co accused Vishal, his sisters Bharti and Bhawna and his mother, however he denied that their co accused Sukhdev Yadav had also accompanied them to Diamond Palace. He denied it for want of knowledge if Nitish Katara had also reached the marriage venue alongwith Bharat Diwakar in the taxi to attend the marriage. He stated that he did not know Nitish Katara and that when he went to attend the marriage function that night he never met any person wearing red kurta ,white pajama and white shawl. He was shown the photographs Ex. PW 6/2 and Ex.PW 6/3 in 75 which PW11 Shivani Gaur was appearing alongwith other persons but he stated that except Shivani Gaur he cannot identify others. He was also shown the photographs Ex.PW 11/1 to PW11/4 in which both Bharti Yadav and Nitish Katara are appearing but he stated that he can only identify Bharti appearing in these photographs and that he did not know the person appearing in these photographs alongwith Bharti. He was also shown the photograph Ex.PW 11/5 of Nitish Katara but he claimed that he did not know the person appearing in the photograph and he had never met him. He also denied it for want of knowledge that deceased Nitish Katara on that day was wearing a wrist watch Esprit Ex.PW7/ Article A2 and was also possessing a mobile phone Samsung having No. 981l283641 . He 76 also denied that during marriage function Bharat Diwakar, Nitish Katara ( deceased) and Guarav Gupta were taking dinner when his co accused Vishal took Nitish out of the Diamond Palace at about 11.15/ 11.30 pm while talking to him and thereafter a quarrel had taken place between him and Nitish Katara outside Diamond Palace and thereafter he was taken away in Tata Safari bearing No. PB 07H 0085 towards Hapur Chungi.
iv) It is claimed that they had not gone to attend the marriage at Diamond Palace in Tata Safari nor Nitish Katara and Sukhdev Yadav were with them nor they had gone towards Hapur.
v) He further stated that they had to go to party of Amit Gandhi at Rajnagar and had taken the route via Kavi Nagar to Raj Nagar. 77 He also denied that they were travelling in Tata Safari bearing No. PB 07H 0085 alongwith the deceased when their vehicle was stopped by the police officials Ct Satender Pal Singh and Ct Inderjeet Singh posted at Chetak 13, a patrol car near Diamond Palace for checking at about 12.15 / 12.30 mid night or while traveling in the same vehicle alongwith the persons, referred above, an altercation took place between the accused persons and PW 33 Ajay Kumar / Ajay Katara near the crossing of Hapur Chungi when his scooter broke down and he was asked by accused Vikas Yadav in an uncivilised manner to remove his scooter from the road and in the process PW33 Ajay Kumar noted down the number of the vehicle of the accused. He denied the evidence that since he and his father Sh DP Yadav and his co accused Vishal 78 Yadav were against the relationship between Bharti Yadav and Nitish Katara, he was abducted from Diamond Palace by him alongwith his co accused Vishal Yadav and Sukhdev Yadav and was thereafter murdered and his body was burnt so as to avoid his identification.
vi) It is admitted by accused Vikas Yadav that he alongwith his co accused Vishal Yadav were apprehended at the railway station at Dabra but he denied that they were checked and it is claimed that they were straightaway apprehended after being identified and were falsely arrested.
vii) He also admitted that he was holding a railway ticket from Jhansi to Delhi at the time when apprehended at Dabra Railway Station. He also admitted that he alongwith his 79 co accused Vishal Yadav were arrested under Arms Act at Dabra.
viii) It is claimed that while he was brought to Ghaziabad alongwith his co accused Vishal Yadav from Dabra, during transit he was interrogated and forced to sign blank papers at Agra Police line.
ix) He denied the recovery of hammer Ex.P1, the weapon of offence at his instance. He also denied to have pointed out the place of murder or the place where the deadbody was burnt.
x) Recovery of Tata Safari Vehicle bearing No. PB 07H 0085 from Karnal at their instance has also been denied.
xi) Regarding his interview in connection with the present case to the media as contained in cassette Ex. PW 36/l he stated that he has 80 seen the cassette played in the Court. He was tortured badly over there before he was interviewed. The inspector in the lockup had stubbed the cigarette buds. He has not made any incriminating statement to the media. The cassette played in the court is tampered as it is edited and he wants that that original cassette containing the complete recording is obtained from the concerned person and played in the court. If the whole cassette is seen in original the things would be amply clear. He was never interviewed by Rewati Lau at all and it is a matter of record that due to non availability of the cassette at that time the witness could not be cross examined. It does not form part of any seizure memo or of the list of documents to be relied upon by the prosecution. It is claimed that he has been falsely implicated. It is 81 also alleged the police had introduced certain interested witnesses who had deposed falsely. He claimed that like him his co accused Vishal Yadav also went to attend the marriage of Shivani Gaur with him in his Mercedes and greeted the couple but had not taken any food as they were to attend another function of a friend. They remained there for a short while about 15 minutes. While they were leaving their sister Bhawna met them at the main gate. She asked them as to how they were leaving early. He told her that he had to reach Karnal to attend another function and also reach his constituency via Mukeria. Thereafter they went to attend party of Amit Gandhi at his house in Rajnagar and after attending the party he left for Karnal and Vishal left for his home. Since the next day in the morning there was a havan 82 and in the afternoon there was a ring ceremony at Karnal after which he left for Mukeria and after finishing his work in his factory, he left for Bisoli on 18/2/02 in the evening and reached his constituency early in the morning on 19/2/02. There, at Bisoli he came to know that he was being framed in some false case . He was in Bisoli for arranging his counting agents as counting was to be held after about four to five days. After that he left for Allahabad and reached there on 20/2/02 morning and contacted Arvind Mishra, adv . The next day in the morning he was joined by Vishal. Then they met Sr. advocates Mr. AD Giri and Mr. Jai Singh. They discussed the facts with them and then they decided to surrender before the concerned court at Ghaziabad . He had also informed his advocate Rajender 83 Chaudhary at Ghaziabad about their will to surrender. From Allahabad they started for Delhi by changing trains i.e Allahabad to Kanpur, Kanpur to Jhansi and Jhansi to Delhi. On the way they got down at Dabra Station for some refreshments but were apprehended and confronted unnecessarily by the Dabra police on being recognized, as their photographs were flashed everywhere by print media and electronic media. He claimed to have left Allahabad on 22.2.02 for Kanpur. Thereafter on 23.2.02 in early hours they reached Kanpur and waited in the waiting room and on the same day they took train to Jhansi and from Jhansi they took train to Delhi on 23.2.02 to reach Delhi on 24.2.02. He further claimed that this case was highlighted and media hype was such that it gives a reasonable inference 84 that whole case against him is politically motivated and have been victimized by those at the helm of affairs. It is claimed that he is a victim of the political rivalry and was falsely implicated.
xii) Regarding Tata Safari bearing No. PB 07H 0085, it is stated that this vehicle was extensively used during the elections upto 14/02/02 and was sent for repairs at the authorised dealer on 15/2/02 in the late evening itself. Thus, there is no question of his getting Tata Safari to the wedding venue on 16/2/02 and that infact he was using his Mercedes.
xiii) Similar is the statement of accused Vishal Yadav, who too denied the entire incriminating evidence appearing on record against him, though he admitted that Ms Bharti 85 Yadav is his cousin sister and was student of IMT Ghaziabad during the year 19992000. He claimed that he was not aware of if Shivani Gaur, Bharat Diwakar, Gaurav Gupta and Nitish Katara ( deceased) were also students of IMT Ghaziabad. He also claimed that he was not aware if his cousin sister Bharti Yadav was in love with deceased Nitish Katara and they used to roam around together at different places and got themselves photographed vide Ex.PW 1/1 to 4 showing their intimacy or used to exchange gifts or write love letters and sent greeting cards to each other on different occasion. He also denied that Bharti Yadav used to call Nitish Katara ( deceased) as Chimpu, Pudda'' out of love and affection and Nitish Katara used to call her as Ghugu and Chuha. He also denied 86 for want of knowledge that both Nitish Katara and Bharti Yadav wanted to marry. He denied and explained that he was not aware of their intention of getting married so there was no question of his being against them. It is stated that it was no reason to object to their marriage, so far he was concerned, for the reason that Nitish Katara belonged to different community and to a government servant family. He denied for want of knowledge if wrist watch Ex/PW 7/ Article A 2 was presented by Bharti Yadav to Nitish Katara in Dec. 2001.
xiv) He admitted that he alongwith accused Vikas Yadav had attended the marriage of Shivani on 16/02/02 at Diamond Palace, Kavi Nagar, Ghaziabad, however he denied that their co accused Sukhdev Pehalwan was also with them. He also admitted that his cousin 87 sisters Bharti Yadav and Bhawna Yadav and their mother had also attended the marriage but he could not say if Nitish Katara (deceased), Bharat Diwakar, Gaurav Gupta besides others had also attended the marriage. He claimed that he did not know Nitish Katara (deceased). He was shown the photograph Ex.PW 6/2 in which Nitish Katara is appearing alongwith Bharat Diwakar, Bharti Yadav, Shivani Gaur and he only identified Bharti Yadav and Shivani Gaur in the said photograph. He claimed that he was not aware of if deceased Nitish Katara was wearing red coloured kurta, white colour churidaar pajama with white shawl on his shoulder, an Esprit wrist watch Ex.PW 7/Article A2 and was possessing a cell phone making Samsung having mobile No. 9811283641, attended the marriage of Shivani Gaur. He 88 denied that at about 11.15 / 11.30 pm while Bharat Diwakar, Nitish Katara( deceased) and Guarav Gupgta were having dinner in the marriage function he went there and took Nitish Katara out of Diamond Palace while talking to him. He also denied that outside Diamond Palace Banquet Hall his co accused Vikas Yadav had a quarrel with deceased Nitish Katara and thereafter he was taken away by all the accused persons in Tata Safari bearing No. PB 07H 0085 towards Hapur Chungi. He also denied the prosecution evidence that since his co accused Vikas Yadav and his uncle DP Yadav were against the relationship of Nitish Katara and Bharti Yadav, as such Nitish Katara was abducted by him alongwith his co accused persons on 16/ 1702 02 from Diamond Palace Kavi Nagar, Ghaziabad 89 and thereafter murdered him and burnt his deadbody so that the same could not be identified. He claimed that he even did not know Nitish Katara.
xv) Regarding the interview given by accused Vikas Yadav to reporter PW 36 Revati Lau vide cassette Ex PW 36/1 the accused has admitted that as per the cassette an interview was given by accused Vikas Yadav to NDTV reporter and that he himself was also appearing in the cassette. He did not deny the interview.
xvi) It is claimed that he has been falsely implicated. It is stated that on the date of marriage of Shivani Gaur when he was going to attend the same and when he was near his car he saw his cousin brother going in black Mercedes. They both had a talk and then 90 accused Vikas Yadav told him that he was going to attend the marriage of Shivani Gaur so they both went together, entered the premises, where his cousin sister Bhawna met them, they greeted the couple, remained there for 10/12 minutes and left the premises. While they were leaving their cousin sister Bhawna was near the main gate and asked them as to why they were going so earlier, to which accused Vikas told her that he had to go to Karnal to attend another function so they both left in the same car. It is stated that there was nobody else with them. Further from Diamond Palace they went to the house of their friend Mr Amit Gandhi to attend his betrothal ceremony and from there he went to his residence whereas his cousin went to Karnal. It is stated that he remained in Ghaziabad till 91 19.2.02 and when he came to know he was being framed in this case he left for Allahabad on 20.2.02 where he had to meet the accused Vikas who had also left for Allahabad There they contacted Sh AN Mishra, advocate and narrated the circumstances to him and he advised them to surrender before the local Court at Ghaziabad. From Allahabad they took next available train to Delhi to reach Ghaziabad and on the way alighted at Dabra for refreshments but were falsely implicated under Arms Act.
xvii) In answer to court question he stated that they were travelling by Gomti from Allahabad to Ghaziabad but he again stated that he did not remember.
xviii) In answer to further court question he stated that complainant was not known to 92 him but she had problem against his family by which he meant his maternal uncle Sh DP Yadav. He also stated that police was also enemical towards Sh DP Yadav.
29.In defence the accused persons had produced 26 witnesses in all namely DW 1 Sh. Ashok Gandhi, DW 2 Madhu Mohan Nair, DW 3 Rajender Chaudhary, DW 4 Pawan Kumar Diwan, DW 5 Advocate Sh Rajkumar Yadav, DW6 Sh Neeraj Gautam, DW 7 Shakti Chand, DW 8 Sh Gaurav Agarwal, DW 9 Bhairav Prasad, DW 10 HC Chetlal, DW 11 Ombir, DW 12 Arvind Mishra, DW 13 Sarvesh Kumar Harit, DW 14 Manuj Diwan, DW 15 Vikam Garg, DW 16 Mahender Sharma, DW 17 Sandeep Mishra, DW 18 Dr Deepak Kumar, DW 19 Jai Singh, DW 20 BP Mittal, DW 21 Samar Singh, DW 22 Satpal Yadav, DW 23 93 Inspt Satyavir Singh, DW 24Sh Sunil Kumar Sharma, DW 25 Jamshed Khan and DW 26 Dilip Kumar Singh.
(i) The plea taken by both the accused persons in their statement U/s 313 Cr.PC is to the effect that after attending the marriage of Shivani Gaur they went to attend the betrothal ceremony of Amit Gandhi, their friend and thereafter accused Vikas Yadav left for Karnal to attend another function. To prove this fact they have examined DW 1 Sh Ashok Gandhi, the father of Amit Gandhi who deposed to the effect that he was resident of R 2/233 Rajnagar Ghaziabad, UP and his son Amit Gandhi got married in Feb 2002. The ring ceremony of Amit Gandhi was performed on 16.2.02 at his residence which was followed by a cocktail cum dinner party. He deposed about presence 94 of both the accused at his house from 11 / 11:30pm to 12 /12:15/12:30 midnight. He produced three photographs Ex. DW1/D1 D3 showing accused Vikas Yadav and Vishal Yadav dancing alongwith the relatives of the witness in photographs Ex DW 1/D1 2 whereas in photograph Ex. DW 1/D 3 accused Vikas Yadav is seen in the company of the father of his daughter in law. He further stated that when both the accused had left at that time he was present at the gate and they had touched his feet and he offered them packet of sweets. His servant had kept a packet of sweet in the vehicle of accused Vikas Yadav which was an exclusive saloon car. He stated that it must be Mercedes.
ii) DW 2 Madhumohan Nair , an employee of Nawab Motors E 11 Sec. 11 95
Noida, was examined by the defence to prove that Tata Safari bearing registration No. PB 07H 0085 was brought to their workshop on 16.2.02 for repairs at 10:49am and was delivered back on 10.03.2002. The detailed statement of this witness shall be discussed at the appropriate stage.
iii) DW 3 Rajender Chaudhary adv, was earlier the counsel for accused Vikas Yadav in this case itself when the matter was pending before Ghaziabad court. He deposed that on 27.2.02 an application Ex DW 3/A was moved by him giving names of four advocates including himself to be present alongwith the accused persons during police custody remand. He testified that he had accompanied both the accused during police custody remand of 3 days w.e.f 28.2.02 to 01.3.02. He stated that 96 accused persons were collected by the police from jail on 28.2.02. He went to the jail in his own vehicle and showed the order of the Court to the police. The IO told him that he should join them in his own private vehicle and would not permit him to sit alongwith them in their vehicle. As such he followed the police in his vehicle No. DL 5CB 4595 to Khurja and he testified that in his presence no recovery was effected at the instance of either of the accused nor any proceedings were conducted. He further testified that on 01.3.02 when accused persons produced in the Court of CJM Ghaziabad he informed the Court orally that he was appointed in this case to accompany the accused persons and no recovery was made in his presence and that after he was informed by the Court that as per the police record 97 recovery of hammer and watch was effected by the instance of the accused persons. He moved application Ex.DW 3/D alongwith an affidavit Ex DW 3/E before the Court that no recovery was effected from the spot at Khurja at the instance of the accused persons in his presence.
iv) DW 4 Pawan Kumar Diwan is the father of DW14 Manuj Diwan, who was getting married at Karnal and a paryojan function was organised at his residence on 16/2/02 and on next morning on 17/2/02 there was sagan ceremony followed by ring ceremony at Highway Green in Karnal on Chandigarh Road. As per this witness accused Vikas Yadav had reached his house No. 204 L Model Town Karnal Haryana at about 3am on the intervening night of 16/170202 and 98 arrangements of his stay was made at Karna lake. As per this witness, accused Vikas Yadav attended the function on 17/2/02 for about 2½ / 3 hours. The witness produced CD Ex. DW 4/1 containing videography of the function held at Highway Green showing the presence of accused Vikas Yadav with the couple after the ring ceremony. This witness also produced two photographs mark DW 4/A and B respectively of the function showing presence of accused Vikas Yadav , Manuj Diwan and his fiancee.
v) DW 5 Sh Rajkumar Yadav was the counsel of accused Vishal Yadav in the present case on 27.2.02 and had moved an application Ex. DW 3/X seeking permission to accompany the accused persons during police custody remand.
99
vi) DW 6 Sh Neeraj Gautam is another counsel who appeared in the court for the accused persons after registration of the present case and at the instance of accused persons he had moved an application Ex. DW 6/1 on 21.2.02 in the Court of the CJM Ghaziabad claiming that the police was harassing them and as per their knowledge they were not involved in any criminal case.
vii) DW 7 Shakti Chand is an employee of Nawab Motors. He produced the record pertaining to the vehicle No. PB 07H 0085 i e the job card bearing No. 221248 Ex. DW 7/A dtd 16.02.02. He also produced 13 various requisition slips for the various parts to be used in the vehicle for repairs which are Ex DW 7/B to M respectively. He also produced the spare part chart Ex.DW 7/P prepared on the 100 reverse of the carbon copy of the job card Ex.DW 7/N. He also produced the computerised vehicle history attested by Notary Public which is Ex. DW 7/Q. The carbon copy of the gate pass is Ex. DW 7/R and two bank statements of the company i e Nawab Motors for the period 27/ 28901 & 20/21202 Ex.PW 7/S and T respectively showing two payments made by cheque for a sum of Rs. 20,000/ and Rs 25,000/ respectively. This witness also produced the job cards prepared in Nawab Motors in respect of other vehicles received before or after receipt of Tata Safari No. PB 07H 0085 in the workshop.
viii) DW 8 Gaurav Agarwal, the record keeper in accounts with Indian Sucrose Ltd produced the record dtd 19.2.02 pertaining to payment of Rs. 25,000/ through cheque by M/s. 101 Oswal Sugar Ltd to Nawab Motors which was encashed on 21.2.02 . He produced the certified copy Ex.DW 8/A of the bank statement of account No. 35019 in the name of M/s. Oswal Sugar Ltd with Oriental Bank of Commerce Hauz Khas having its office at B 14 Gulmohar Park New Delhi.
ix) DW 9 Bhairav Prasad, an independent witness appeared in defence of accused Vikas Yadav to prove his presence in Bisoli constituency on 19.2.02.
x) DW10 HC Chet Lal proved DD register containing DD No 12 A dtd. 17/2/02 Ex. DW 10/A registered with PS Pahar Ganj on the complaint of Nishit Katara , father of the deceased Nitish Katara.
xi) DW11 Omvir produced the maintenance and fuel register maintained in Oswal Sugar 102 Mill regarding 13 vehicles owned by the company including vehicle No. PB 07H 0085. He also produced a letter Ex DW 11/A dtd. 12.7.07 written by Gayender Kumar, Chief Accountant of the company Indian Sucrose Ltd written to the manager OBS Hauz Khas New Delhi to issue a certificate and certified copy of the bank statement pertaining to account No. 35019 Oswal Sugar Limited. He also produced another letter written by Gayender Kumar to Nawab Motors which is Ex. DW 11/B. He is also examined to prove that in the evening of 17/2/02 accused Vikas Yadav visited the factory at Mukeria at 7:10pm and left at 7:40pm.
xii) DW12 Arvind Mishra another practising advocate at the Hon'ble High Court of 103 Allahabad has been examined in defence to prove the presence of both the accused persons in Allahabad on 20.02.02 and 21.02.02.
xiii) DW13 Survesh Kumar Harit Asstt. Engineer was produced in defence to prove the siteplan of Hapur Chungi the place where Nitish Katara was last seen by PW33 Ajay Katara in the company of accused persons.
xiv) DW14 Manuj Diwan is the son of DW4, whose ring ceremony, accused Vikas Yadav as per his statement U/s 313 Cr.PC, had gone to attend at Karnal on 17/2/02.
xv) DW15 Vikram Garg is the photographer examined with a view to prove that the photograph Ex.PW6/2 of Nitish Katara alongwith others taken at the time of marriage of Shivani Gaur, was tampered with and contained different details then from the photographs 104 Ex.PW 6/D3 and its enlarged copy Ex.PW 6/D4. xvi) DW 16 Mahender Sharma, another photographer had appeared this court on 6.5.03 alongwith his computer and had enlarged the photograph Ex. PW 6/D3 to Ex.PW 6/D4. xvii) DW 17 Sandeep Mishra has again tried to prove the presence of accused Vikas Yadav in the election office at Bisoli on 19.02.02.
xviii) DW 18 Dr Deepak Kumar Agarwal has been examined qua PW 33 Ajay Kumar / Ajay Katara who was admitted in the Panna Lal Hospital on 1.7.07 at 10.10 pm by Mr Arun Garg Mr P Singh and Mr Lakhbir singh with the history of vomiting and pain in the abdomen. This doctor had examined him and Ajay Katara told him that around 8.30 pm on that day he alongwith his friend had taken 105 some chat, cold drink etc and when he reached home he started vomiting and felt pain in the abdomen and also felt that he was administered some poisonous substance through meals. He proved the case sheet of the patient as Ex.DW 18/Al to A 13 respectively and the investigation reports Ex. DW 18/B 1 to B 6. He further stated that in such kind of patients the procedure followed is gastric lavage/gastric suction. However, the patient Ajay Katara refused to undergo the said procedure. Regarding this he made endorsement on Ex.DW 18/A2 encircled red at point X. The documents Ex.DW 18/ A9, A 10 and A 11 are bearing his signature at point Y. He proved the MLC of patient prepared and signed by Dr Rajesh in his presence as Ex. DW 18/C. This witness further testified that after going through 106 the reports of Ajay Katara he could say that it was not a case of poisoning.
xix) DW 19 Jai Singh is another lawyer practising at Hon'ble High Court of Allahabad, who claims that the accused persons had met him at Allahabad on 21.2.02 while they were going to the house of Sr advocate Sh AD Giri. xx) DW 20 BP Mittal is another practising lawyer at District Courts at Bulandshahar who had filed a divorce petition of Mamta Katara against her husband PW33 Ajay Katara. The witness produced the certified copy of the WS, certified copy of the order passed by the Court on the basis of compromise between the parties and the certified copy of the decree dtd 27.7.04, which are Ex.DW 20/A to D respectively. Through the testimony of this witness the defence has tried to prove on record that PW 107 33 Ajay Katara was resident of village Bamroli District Agra which fact was denied by Ajay Katara in his WS Ex. DW 22/B and he gave the address of matrimonial house as Sec. 11 E , 115 Pratap Vihar Ghaziabad.
xxi) DW 21 Samar Singh is an another advocate practising at the Hon'ble High Court of Allahabad who claims that he has been handling and looking after the cases of Sh DP Yadav, father of accused Vikas Yadav since the year 1986. This witness has been examined to the effect that SI Anil Somania the IO of the present case when was posted in District Sambhal from where Sh. DP Yadav was MP, had a tussle with Sh DP Yadav since he was pursuing the matter of local inhabitants of Sambhal Constituency and since Mr DP Yadav had declined to supply the wine to the police 108 officers free of cost, it resulted in his implication in a false case.
xxii) DW 22 is advocate Satpal Yadav. The prosecution has claimed that this witness was present at the time of recovery of hammer Ex. P 1 and wrist watch EX PW 7/Article A2 at the instance of both the accused persons since the recovery memo Ex.PW34/1. He was examined by the defence to the effect that he was not present at the time of alleged recovery. xxiii) DW 23 Inspt Satyavir Singh, Company Commander, 41 Battalion ''H'' Company Ghaziabad UP was examined in defence to prove that Ajay Katara is a false witness to the effect that he had gone to the residential complex 47th Battalion, Ghaziabad on 16.2.02 to meet Subhash Chand, a native from his village and an employee of UP police and at about 109 12.10 am he left the place of Subhash Chand and was coming back to Delhi when his scooter went out of order on the crossing of Hapur Chungi and from his left side from behind a vehicle Tata Safari came and his scooter had just stopped, the person driving Tata Safari was accused Vikas Yadav who in a very uncivilised manner told him to remove the scooter and then the witness went to the Tata Safari and saw the deceased in the company of both the accused persons as well as their co accused Sukhdev Pehalwan.
This witness testified that he was residing at the Residential Complex 47th Battalion Ghaziabad alongwith his family for the past 14 years He stated that he remained posted with 47th Battalion for about 7 years during the period l992 to l999. Thereafter we.f 110 2000 he is posted in Ghaziabad with 41st Battalion. He stated that 47th Battalion is equipped with sophisticated weapons to fight against terrorism and fundamentalists. In the residential complex itself there is armoury and magazine where the arms and ammunitions are stored and for its security the residential complex is surrounded by wall and there is an entry point and an exit point and line police is posted on both these points for 24 hrs. At the quarter guard there is armed force posted. A register is also maintained at the entry point and who so ever from outside enters the complex and does not belong to the PAC whether it is 47th or 41 Battalion, an entry is made in the register.
xxiii) DW24 Sh Sunil Kumar Sharma, Ahlmad to the Court of CJM Ghaziabad UP 111 produced the summoned record pertaining to case No. 105/07 Crime No. 77/07 of PS Kavi Nagar titled as ''Smt Tanu Chaudhary Vs. Ajay Katara and Ors.'' U/s 498A/323/506 IPC and 3 & 4 Dowry Prohibition Act.
xxiv) DW 25 Jamshed Khan Deputy Executive Producer Star News who had conducted a sting operation on SI Anil Somania & Ors. in Feb 2005. It is stated that the sting operation was conducted regarding encounter done by SI Anil Somania to expose as to how false encounters were done by the police.
xxv) DW 26 Sh Dalip Kumar Singh, Group Editor of Jain Television was examined in defence to prove on record some interview given by Tanu Chaudhary wife of Ajay Katara, which was telecasted by Jain TV on 20.2.05 , however the witness could not produce any 112 record to this effect and testified that record is maintained only for 90 days. The witness even refused to comment upon the CD produced by the defence counsel, containing any such interview.
30. I have heard arguments at length addressed by Sh BS Joon, Spl. For the State assisted by Sh. Kaushik Dey, counsel for the complainant, Sh. KN Balgopal, Sr. Counsel assisted by Sh GK Bharti, counsel for accused Vikas Yadav and Sh SK Sharma, counsel for accused Vishal Yadav. I have also gone through the relevant material on record with the help of above named and have also gone through the written submissions filed on record by both the parties.
31. The present case is based on circumstantial evidence for want of eye 113 witness.
The prosecution claims to have proved on record their case through the following circumstances:
i) Presence of both the accused persons and the deceased in the marriage of Shivani Gaur on the night of 16/2/2002 and during that night at about 11:15 / 11:30pm accused Vishal Yadav took deceased out of Diamond Palace while talking to him.
ii) There was a tutu mainmain (exchange of hot words) between the accused Vikas Yadav and the Nitish Katara outside Diamond Palace and in this regard he gave interview to NDTV reporter on 25/2/02 after his arrest in the present case.
iii) Deceased was seen in the company of both the accused persons and their co accused 114 Sukhdev Yadav ( facing trial separately) in Tata Safari No. PB 07H 0085, firstly by Ct. Inderjeet PW 28 and Ct. Satender PW 32 who were posted with Chetak 13 and were checking the vehicles during that night near Diamond Palace and just after 5 minutes they were seen by PW33 Ajay Katara at about 12:30 /12: 35 am near crossing of Hapur Chungi.
iv) After that Nitish Katara was not seen alive by anyone. Last call on his mobile phone No.9811283641 was received at 1:11 am from mobile No. 9810154964 of Bharat Diwakar . After that no incoming or outgoing call was made from the mobile of Nitish Katara nor any SMS was sent or received.
v) Accused persons were absconding wef after the incident till they were arrested within the jurisdiction of PS Dabra on 23.2.02 at 4/ 115 4:15am on 23/2/02 under Arms Act. They were not available at their known addresses despite search conducted by the police party during that period.
vi) It was a stage managed arrest on 23/2/02 because in his explanation U/s. 313 Cr.PC accused Vikas Yadav has specifically stated that in the early hours of 23/2/02 he was at Kanpur. So either his arrest was fake or his presence at Kanpur in early hours as explained by him in his statement U/s 313 Cr PC was false. At the time of their arrest as per the FIRs Ex.PW36/4 and Ex.PW 36/5 they had disclosed that they were involved in the kidnapping of Nitish Katara at Ghaziabad.
vii) In the application dtd. 24/2/02 part of Ex.CW 2/B moved by the both the accused persons before Dabra Court, wherein it is 116 mentioned that a case U/s 302 IPC was registered against them with PS Kavi Nagar Ghaziabad whereas till that time Section 302 IPC was not added in the FIR Ex.PW 1 /2 registered with PS Kavi Nagar U/s 364 IPC. Section 302 IPC was added to the FIR on 25/2/02 .
An application Ex.PW 35/13A was moved by IO on 24.2.2002 before the Dabra Court for obtaining transit remand of the accused persons and even in this application IO had not mentioned Sec. 302 IPC but only Sec. 364 IPC.
viii) Accused stated in his statement U/s 313 Cr.PC that he was tortured by the police with cigarettes buds before their interview to NDTV, however no such injury marks are seen in MLC dtd. 28.2.02. Even the said statement of accused Vikas Yadav does not find corroboration from the statement of accused Vishal Yadav U/s 313 117 Cr. PC, wherein he has nowhere alleged that accused Vikas Yadav was tortured by the police with the cigarettes buds before the interview on NDTV was recorded.
ix) Recovery of hammer Ex. P l at the instance of accused Vikas Yadav and recovery of wrist watch EX. PW 7/ Article A2 at the instance of accused Vishal Yadav in presence of adv. SP Yadav, in furtherance of their disclosure statement Ex. PW 35/16 and Ex PW 35/17 respectively.
x) The wrist watch was correctly identified by the complainant in judicial TIP that it was the same watch which was gifted to Nitish Katara by Bharti Yadav which was worn by Nitish Katara at the marriage of Shivani Gaur .
xi) Recovery of Tata Safari bearing registration No. PB 07H 0085 at the instance of 118 both the accused from burnt thread factory AB Coltex at Karnal on 11/3/02 in the presence of PW Sultan Singh, security guard of the factory which was owned by Sh DP Yadav.
xii After completion of the MBA Course from IMT Nitish Katara took up a job with Reliance General Insurance and his office was at Hans Plaza, Connaught Place. Bharti Yadav opened her bank account in BNP Paribas Bank, Barakhamba Road, Connaught Place, New Delhi near the office of Nitish Katara and Bharti Yadav gave her address in the bank as 7, Chemsford Road, New Delhi which was the residential address of Nitish Katara, though she was having two addresses in Delhi, i e B14, Gulmohar Park and 15, Balwant Rai Mehta Lane, New Delhi, the official accommodation her father since he was MP during those days. The account 119 was opened with an initial amount of Rs. 10,000/ through a cheque . Strangely enough this cheque was issued from the account of deceased Nitish of HDFC Bank. As soon as the incident took place on 1/3/02 the application was moved by Bharti to BNP Paribas Bank for change of address from 7 Chemsford to B14 Gulmohar Park.
xiii. On 24/8/00, Bharti Yadav, Bhawna Yadav, her fiancee Deepak Yadav and one Rocky alongwith deceased Nitish Katara visited Bombay to celebrate the birthday of Bhawna Yadav and no other close friend accompanied them .
xiv Call records of Bharti Yadav , Nitish Katara, Bharat Diwakar and Gaurav Gupta who was using phone of Yashoman tomar, Neelam Katara, Nitin Katara , Vikas Yadav and Sh. DP Yadav.
120xv Photographs of the marriage of Shivani Gaur, Intimate photographs of Nitish Katara and Bharti Yadav, greeting cards, love letters and gifts etc sent by Bharti Yadav to deceased. All the documents are duly exhibited.
xvi Co accused Sukhdev Pehalwan absconded and was arrested on 23/2/05 from Dewariya.
xvii Human blood was detected on hammer Ex P l as per the CFSL report Ex. PW 35/57.
xviii Accused Vikas Yadav was convicted in Jessica Lal murder case. He was also involved in murder case in the year 1991 which was withdrawn in the year 1994.
xix False plea of alibi taken by the accused persons and false defence taken in statement U/s 313 Cr PC, false defence evidence 121 led by the accused persons to mislead the Court. xx Postmortem report and deadbody of the identification.
33. In my opinion these 20 circumstances can be summed up as follows:
i Motive
ii Abduction / Last seen
iii Recovery of weapon of offence, the belongings of the deceased and Tata Safari bearing registration No PB 07H 0085.
iv Medical evidence
v Identification of the deadbody and
vi False defence taken by the
accused persons.
Alongwith arguments on aforesaid
circumstances, arguments on the principles of law to be applied in such cases were also addressed. 122 The learned counsel for the accused persons Sh. KN Balgopal and Sh SK Sharma placed reliance upon 1953 Crl.LJ 129 Hanumant Vs State of MP, 2007 (2) JCC page 1249 Hatti Singh Vs State of Haryana, 2006 (10) Supreme Court Cases 172 Ramreddy Rajesh Khanna Reddy Vs State of A.P, 2003(1) CC Cases (SC) 145 Bharat Vs State of M.P and 1997 Crl.LJ 3686 (Delhi High Court) Arun Kumar Vs. N.G. Mandi.
The learned counsel for the accused persons Sh. KN Balgopal and Sh SK Sharma specifically referred to the following paragraph of the various judgments cited by them.
In 1953 Crl. LJ 129 Hanumant Vs State of MP, the defence counsels referred to paragraph 10 which read as under: '' ......... In dealing with circumstantial evidence rules specifically 123 applicable to such evidence must be kept in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressedby Baron Alderson to the jury in Reg. VS hadge (1938) 2 Leewin 227 where he said:
" ......... The mind was apt to take a pleasure in adopting circumstances to one another and even in straining them a little. If need be,to face them to form parts of one connected whole and the more ingenious the mind of the individual the more likely was it. Considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with it previous theories and necessary 124 to render them complete.............."
It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established, should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should b such 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 be such as to show that within all human probability the act 125 must have been done by the accused............"
In 2007 (2) JCC page 1249 Hatti Singh Vs State of Haryana, the defence counsels referred to paragraph 29 which read as under: " ... ..There cannot be any doubt that conviction can be based n circumstantial evidence, but therefore the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and is inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration 126 cumulatively. They must be able to conclude that within all human probability the accused committed the crime... .."
In 2006 (10) Supreme Court Cases 172 Ramreddy Rajesh Khanna Reddy Vs
State of A.P the defence counsels referred to paragraph 26 which read as under: ''It is now well settled hat with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no 127 conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. ... ...'' In 2003(1) CC Cases (SC) 145 Bharat Vs State of M.P it is held :
''T he conviction based mainly on two circumstances I e of last seen together and recovery of the ornaments The alleged extrajudicial confession unnatural and unbelievable The evidence of recovery of ornament not worth accepting No proper and legal 128 identification of the ornaments Doubt on the date of the death of deceased The chain of the circumstances not complete Conviction set aside."
In 1997 Crl. LJ 3686 ( Delhi High
Court) Arun Kumar Vs NG Mandi, the
defence counsels referred to paragraph 17 as
under:
''
The law regarding the proof of
guilt of the accused, in absence of any direct evidence, through the circumstantial evidence, being that there must be a chain of evidence / circumstances so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in 129 any of human possibility that act must have been done by the accused and the accused alone. In the instant case in view of state of evidence as above, the only circumstance which can be said to have been proved by the prosecution evidence is that the deceased Ram Chander was taken by the accused Sita Ram at about 12 noon on 14121986 to Samai Pur to meet Lachhman Mandal and Narain Madnal and nothing further, which, in our opinion, would not be sufficient, in absence of the complete chain of circumstances suggesting the involvement of the accused with regard to the inflicting of the injury on Ram Chander Singh, coupled with the circumstances of the discovery of weapon by the appellant containing the blood of the deceased. Under these circumstances, 130 the prosecution cannot be said to have established the circumstances of such a nature as to be capable of supporting the exclusive hypothesis that accused is guilty of the crime of which he is charged. In our opinion, the finding of guilt could not have been justifiably recorded against the appellant and the learned trial Judge has cited in finding the appellant guilty of the offences charged and imposing the consequent sentence. ............."
''The submissions of counsel for both the accused persons that in the first instance the State has to satisfactorily establish each circumstances beyond shadow of reasonable doubt and secondly if any circumstance or some of the 131 circumstances out of the proved circumstances is or are explainable by or any other reasonable hypothesis than the guilt of the accused then that circumstance or circumstances cease to remain incriminating and can not be considered against the accused. Counsel for the accused persons emphasized that even individual circumstance should not be explainable on any other reasonable hypothesis. If it is so explainable on any other reasonable hypothesis then such material will have to be eliminated from the chain of circumstances and if it is material link in connecting the chain of circumstantial evidence, then chain will be broken. The benefit of the same will be given to accused. '' On the other hand, the learned Spl. 132 PP Sh B S Joon for State placed reliance upon authority reported in AIR 1984 SC 1622 Sharadbirdi Chand Sarda Vs. State of Maharashtra''. In the aforesaid case Hon'ble Apex Court has laid down five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence. These five golden principles are as follows:
1. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established.
2. The facts so established should be consistent only with the hypothesis guilt of the accused , that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstance should be of conclusive nature and 133 tendency.
4. They should exclude every possible hypothesis except the one to be proved and
5. There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
All the above referred conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise.
The Spl. PP for State, Sh B S Joon 134 submitted that most important caution, however is that the circumstances are to be seen in totality and not separately or singularly. Separately, a circumstance may be innocuous but the circumstance have to be read as an integral part. The court ought not to reject the circumstances one by one and then hold that the case is not made. Sh BS Joon, relied upon 2000 (1) JCC (SC) 20 CK Reveendran Vs. State of Kerala, 2002(8) Supreme 220 Anthony D Souza & Ors. Vs State of Karnataka and 1991 (1) JCC (SC) 283 Arvind @ Pappu Vs State ( Delhi Administration).
The Spl. PP for State Sh. BS Joon specifically referred to the following paragraph
of the various judgments cited by him.
In 2000(1) JCC (SC) 20 CK
Reveendran Vs. State of Kerala, the Spl.
135
PP for State referred to paragraph 4 which read as under: ' 'The prosecution must prove each of the circumstances, having a definite tendency pointing towards the guilt of the accused and though each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused... ... ......"
In 2002(8) Supreme 220 Anthony D Souza & Ors. Vs State of Karnataka the Spl. PP for State referred to paragraph which read as under: "In a case of circumstantial 136 evidence where an accused offers false answers in his explanation under section 313 Cr.PC 1973 against the established facts that can be counted providing a missing link for completing the chain."
In 1991(1) JCC (SC) 283 Arvind @ Pappu Vs State ( Delhi Administration) the Spl. PP for State referred to paragraph 12 which read as under:
The standard of proof required to convict a person on circumstantial evidence is now established by a series of decisions of this Court. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of 137 evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. To quote a few decisions of this Court in this regard reference may 138 be made to the case of Sharad Birdhichand Sarda Vs State of Maharashtra1984(4) SCC 116:
Balwinder Singh Vs State of Punjab AIR 1987 SC 350 : Dhananjay Chatterjee alias Dhana Vs State of West Bengal 1994(2) SCC 220, Laxman Naik Vs State of Orissa 1994(3) SCC 381 and Brijlala Pd. Sinha Vs State of Bihar 1998 (5) SCC 699."
The position which emerges from the judgments of the Honble Supreme Court cited above is that in the matter of circumstantial evidence constituting the chain of the case of the prosecution, while dealing with individual circumstance, the court is to consider if the circumstance as a fact stands proved by preponderance of evidence. While considering 139 the circumstance it is also to be considered whether any particular circumstance also suggest any other reasonable hypothesis than what is claimed by the prosecution. If yes than what is the effect of such reasonable hypothesis on the total circumstances considered together cumulatively.
If the accused persons with respect to particular circumstance claim that the existence of circumstance is on account of another reasons than what is claimed and emerges out of the evidence of the prosecution then the court is also to consider the evidence that may be adduced by the accused, either in defence or elicited in cross examination. Considering all this aspect the court is to consider if the circumstance stands proved/ unproved. If the evidence adduced by the accused creates even 140 suspicion of such claim, then such circumstance shall not be held as proved and will not be considered in the chain of the case of the prosecution. The cumulative effect of all the circumstances as are held to be proved shall be considered as against the accused qua the explanation submitted by the accused so as to find out if the case is proved beyond reasonable doubt. Individual circumstances are not to be rejected if they satisfy the test of proved by preponderance of evidence . It is only the cumulative effect of the circumstances which is to be considered with the hypothesis which has been put by the prosecution while considering the concept of beyond reasonable doubt.
32. Keeping in mind the aforesaid principles the various circumstances which have been claimed to have been proved by the 141 prosecution are to be considered as to whether the prosecution infact is able to prove them on record. It is also to be taken into consideration if any of the proved circumstance directs any other hypothesis ie other than the guilt of accused persons. The total and cummulative effect of all the circumstances is to be taken into consideration to arrive at a finding that these circumstances lead to no other hypothesis except proving the guilt of accused persons.
A. MOTIVE i) The prosecution has alleged that
both the accused persons had strong motive to kill the Nitish Katara since Ms Bharti Yadav, the sister of accused Vikas Yadav and cousin sister of accused Vishal Yadav had a love affair with the Nitish Katara which relationship they 142 wanted to culminate in marriage which was not to their liking and hence the deceased was eliminated.
ii) As per Section 8 of the Indian Evidence Act :
''any fact is relevant which shows or constitutes a motive for commission of the alleged crime.'' As explained by the Hon'ble Supreme Court in Ranga Nayaki 's case reported in (2004) 12 SCC 521.
''Motive is the emotion which impels a person to do a particular act and such an impelling power may not be proportionate to the gravity of the crime. Many a murder has been committed without any 143 known or prominent motive and it is quite possible that the impelling factor may remain undiscoverable.''
iv) Motive plays an important role in order to tilt the scale against the accused. In a case which is based on circumstantial evidence motive assumes greater importance. It is settled law that in order to bring home the guilt of the accused it is not necessary for the prosecution to prove the motive. Existence of motive is only one of the circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. If the evidence of the witnesses appears to be truthful and convincing, failure to prove the motive is not fatal to the prosecution as held in the case of Bhimapa Chandappa Hosamani Vs State of Karnataka reported in (2006) 11 SCC 323. 144
v) It is also held by the Hon'ble Apex Court in the case of Yuvraj Ambar Mohite Vs State of Maharashtra reported in 2006 (10) Scale Page 369 that when a case is based on circumstantial evidence of last seen, absence of motive is immaterial. It is held that the immediate motive for killing the deceased by the appellant might not have been proved. What transpired in a closed room cannot be known.
vi) Now it is to be seen as to what evidence has been produced by the prosecution to prove that the accused persons had motive to eliminate the deceased. The prosecution has alleged that Ms Bharti Yadav had love affair with the deceased and they both wanted to marry but both the accused persons did not approve of their relationship and finding an 145 appropriate opportunity on the occasion of marriage of Shivani Gaur which was attended by both the accused persons as well as by the deceased, was abducted from the Diamond Palace Banquet Hall by both the accused persons and their coaccused Sukhdev and was killed. It is claimed by the prosecution that the deceased was taken out of Diamond Palace by accused Vishal Yadav and thereafter was seen in the company of both the accused persons outside the Diamond Palace and again near Hapur Chungi by the prosecution witnesses around 12/12.30 mid night on the intervening night of 16/17.2.02. On the next morning ie 17.2.02 the deadbody of the deceased was found in burnt condition from a pit near fields of Zahir Vakil on Shikarpur Road, a place within the jurisdiction of PS 146 Khurja Nagar.
vii) On the other hand, the accused persons have denied that they had any knowledge of any such affair between Ms Bharti Yadav , sister of accused Vikas Yadav and cousin sister of accused Vishal Yadav and the deceased or their plan to marry. They also denied that deceased was known to them. They both have pleaded alibi to the effect that at the time the deceased was allegedly abducted from Diamond Palace and was seen in the company of both the accused persons and their co accused Sukhdev Yadav near Hapur Chungi, they were present at the house of DW 1 Ashok Gandhi to attend the ring ceremony of his son Amit Gandhi, who was their school friend. And thereafter accused Vishal Yadav went to his house from the place of DW 1 Ashok Gandhi, 147 whereas accused Vikas Yadav left for Karnal to attend the function relating to marriage of DW 14 Sh. Manuj Diwan.
viii) In this regard the prosecution has relied upon the testimony of PW 30 Smt Neelam Katara the mother of the deceased, PW 38 Bharti Yadav, PW 39 Nitiin Katara, the brother of deceased, PW 42 Bhawna Yadav . PW 21 Deepak Gupta, Nodal Officer, Hutchison Essar Telecom Ltd. PW 22 RK Singh from Bharti Cellular Ltd, PW 34 SI JK Gangwar, PW 35 SI Anil Somania and PW40 Shvendra Tiwari, Asstt. Manager, HDFC Bank, Surya Kiran Branch, Connaught Place, New Delhi and to some extent PW 25 Bharat Diwakar.
ix) The arguments of the defence counsel are that the testimony of PW 30 Mrs.Neelam Katara does not inspire credence, as it is full of 148 improvements and the witness has been confronted with her previous statements U/s 161 Cr PC dtd. 17.2.02 Ex.PW 30/DA and dtd. 14.3.02 Ex.PW 30/DB to this effect. It is further submitted that the prosecution has also referred to so called telephone communication between Bharti Yadav and the friends of Nitish Katara and his mother, Mrs. Neelam katara but it does not find corroboration from the statement of Bharti Yadav nor were the said statements made by the complainant in her statement to the police U/s 161 Cr PC recorded on two occasions spanning over a period of 25 days. It is submitted that the complainant and Bharti Singh did not possess mobile phone in their name. (Neelam Katara and Nitin Katara had stated that Neelam Katara was possessing mobile No. 9810206099 149 and this fact is not disputed by the defence in cross examination of both these witnesses) Further that there is no transcript of any such calls nor there is any corroboration of these calls from the concerned persons nor has any incriminating evidence emerged from the so called telephonic conversation.
x) It is further argued that PW 11 Shivani was a classmate of Bharti Singh and even she was not aware of any such relationship between Nitish Katara and Bharti Singh. Bharti Singh herself has deposed that the mother of Nitish was aware that she and Nitish were close friends but she was opposed to their relationship. She has further stated that she did not want her relationship with Nitish in the press even then and now and the media had overblown it which is not to her 150 liking.
xi) It is further submitted that in the entire evidence produced by the prosecution apart from the relatives of Nitish Katara no witness has deposed to the effect that either they were aware of any such relationship or that any such relationship existed. Even in her statement U/s 161 Cr PC Bharti Singh had merely stated that her relationship was known to her Mami wife of Sh Bharat Yadav and her Bua and they had assured her that after the elections of her brother Vikas Yadav they would talk to her father about her marriage with Nitish Katara. It is submitted that none of them have been produced as prosecution witness to this effect.
xii) It is further argued that the entire bunch of letters produced by the complainant 151 does not anywhere indicate that either the said relationship was known to her brothers or they had opposed the same. The claim of motive raised by the prosecution is hollow. That even when the prayer for examining her by video conferencing was suggested but the prosecution had opposed it on untenable grounds. Bharti Singh was projected as the star witness in the case until she came and deposed. When the prosecution did not find any shelter in her statement they immediately promoted Ajay Katara as the star witness.
xiii) It is further submitted that the prosecution had attempted to make out a case that Bharti's brother did not like her dancing while Shivani has clarified that on the said date there was no dance.
xiv) Further that even the 152 complainant PW 30 Mrs. Neelam Katara had mentioned in her cross examination that there was no reason for her to make any complaint against any of the family member of Bharti Yadav. The apprehension that Bharti Singh had from the time Nitish Katara was missing, has been falsely put up by the complainant and she has been confronted adequately on these aspects with her earlier statements and Bharti Singh had denied these facts in her examination nor did she make such statement in her so called statement to the police. Whatever she wanted to say she had conveyed to the concerned senior police officer and the same was published in the Newspaper and the prosecution has not rebutted the same.
xv) On the other hand the Spl. PP 153 for State has argued that in the present case the prosecution has proved the motive of the accused persons to the hilt. It is submitted that prosecution has proved on record various circumstances which conclusively prove the closeness and proximity between Bharti Yadav and Nitish Katara which is evident from her greeting cards and letters she wrote to Nitish Katara and these are all admitted by her during her testimony. Further he has submitted that her opening bank account with the address of Nitish Katara, the visit of Nitish to Bombay alongwith Bharti, her sister Bhawna and her fianc e to celebrate the birthday of Bhawna in August 2000, the visit of Bharti and Nitish to Fatehpur Sikri, Jim Corbrett Park, their intimate photographs all prove that they had intimate relationship and their intention was to marry. It 154 is further submitted that through the letters Ex.PW30/C1 and PW30/C4 the knowledge of her family members about their affair has also been proved. Besides, it is submitted that Neelam Katara s testimony to the fact that Nitish Katara told her that he was in love with her and they both wanted to marry and that this fact was known to her brothers ie accused Vikas Yadav and Vishal Yadav but they were averse to their marriage for the reason they wanted Bharti to be married in their own caste and for the reason Nitish Katara belonged to family of government servants has remained unrebutted.
xvi) Now it is to be seen whether the prosecution has been able to prove by cogent evidence that Ms Bharti Yadav had love affair with the deceased and that the accused 155 persons had the knowledge of their affair and their intention to marry and that they did not approve of their such relationship.
xvii) PW 30 Mrs Neelam Katara has testified on oath that her son Nitish Katara ( deceased) after doing graduation from
Venketeshwar college Delhi took admission in IMT Ghaziabad in MBA course in the year l998. He passed out from IMT in the year 2000 and thereafter he joined as Management Trainee with Reliance General Insurance . After completing his training he was confirmed as Asstt. Manager about one month before his death and his last office was in Hans Plaza Connaught Place. She testified that Bharti Singh, Gaurav Gupta, Bharat Diwakar and Shivani were his close friends. Regarding Shivani, she stated that though she was not 156 in the same course in which her son was but she became friendly to him being friend of Bharti Singh. She further testified that her son Nitish and Bharti Singh got acquainted being in the same course in IMT Ghaziabad and also being in the same project during the course. She testified that after college while most of the friends of Nitish moved out but he remained in Delhi because of his father' s condition who was ailing. Regarding Bharti Singh, it is stated that she too had not taken up any job so this brought them closer and from friendship they fell in love with each other. Both of them used to organise get together when other friends used to visit Delhi. It is stated that size of flower bouquet being sent by Bharti Singh was increasing and specially on birthday of Nitish in April 2001, so 157 from her mother's sense she could gather that their closeness and intimacy was increasing. She further stated that she had questioned her son about this but she could not get clear answer till Dec 2001.
xviii) She further stated that Bharti Singh's statement of account from BNP Paribas Bank Connaught Place used to come at her address ie 7 Chemsford Road but she did not open that statement of account prior to the death of her son. She opened that statement of account after the death of her son and came to know that Bharti Singh had given their address in the bank for her account.
xix) She further testified that she was on a business trip to Bombay in August 2000 and was to return to Delhi by Rajdhani on 24.8.2000 but since her meeting got delayed 158 she had to change her plan and decided to travel by Jet Airways. In order to inform her son about change of her plan she called him on phone and then came to know that he had also come to Bombay at the birthday function of Bhawna Yadav and told her that it was a whole day programme and they had come for an outing. Further, he informed her that he would also be going back to Delhi by Jet Airways the same flight by which she was to go back. She met him at the airport and he pointed out to her his friends Bharti, Bhawna, Deepak and two more who were also at the airport.
xx) PW 30 Mrs.Neelam Katara produced photographs Ex PW 11/1 to Ex. PW 11/4 in which both Nitish ( deceased) and Bharti are appearing together. It is observed as stated 159 by the witness that the photographs Ex. PW 11/ 2 and Ex.PW 11/4 were clicked at Fatehpuri Sikri as per the background shown in the photographs.
xxi) She further testified that Bharti used to send cards and letters very frequently to her son Nitish. There was a single valentine album sent by Bharti to Nitish in which she had tucked cards and written messages out of which two cards are Ex.PW30/l and Ex.PW30/2. She further testified that apart from these two cards there were several other cards which she lateron proved during her further testimony dtd. 3.5.2003 as Ex.PW 30/C1 to Ex.PW 30/C 83. She testified that she had shown all these documents to the IO who chose only two greeting cards Ex. PW 30/1 and 2. She further testified that Bharti used to call her 160 son by his nick name 'Chimpu' which was the family nick name by which they used to call him. Bharti also used to call him by other nick name like 'Pudda etc'. Similarly Nitish also used to call Bharti as Ghugu and Bharti also used to write this nick name in her cards. Further her son also used to call her as 'Chuha'. Bharti also used to write herself as Ghugles. xxii) She further testified that in Dec. 2001 her son Nitish had disclosed to her about his intention and love for Bharti and he told her that he was not in a hurry to marry as he wanted to settle down first but Bharti's father was looking a match for her and therefore she may have to disclose to her father about her love. It is further stated that they both wanted to marry .
xxiii) She further testified that Nitish 161 told her that Bharti was planning to tell her father about their intention to marry and that her brothers i e both the accused present in Court knew about her intention but they were averse to her marriage with him, however, she was confident that she would be able to convince her father. Her son further told her that Bharti was waiting for an opportunate time and for her brother to go out of town after the election and that as her brother's marriage was fixed for 6th March, she was hopeful that after marriage when he goes out she would be able to convince her father. The witness further testified that when she asked her son as to what was the objection being raised by them, she was told that there were two objections, firstly they will marry the girl in their own community and secondly the family of Nitish 162 was of government servants and they consider the service class to be a poor class. She further stated that she too had her own objections and after considering pros and cons she told Nitish that it would not be a suitable marriage but he was adamant. It is stated that she had told Nitish about the possible interference and that brother of Bharti was already facing criminal cases but her son was looking everything through tinted glass and was adamant to marry her.
xxiv) Above is the statement of PW 30 Smt Neelam Katara with regard to the relationship between Nitish Katara and Bharti Yadav.
xxv) Now let us have a look at the greeting cards and the letters sent by Bharti to Nitish ( deceased) to find out from the 163 contents as to what was the relationship between the two, whether it was merely friendship or something more than that which could be termed as love affair which they intended to culminate in marriage. xxvi) It is pertinent to mention that PW 38 Bharti Yadav has admitted in her testimony that she sent all these letters and greeting cards to Nitish. Besides the greeting cards Ex.PW 30/1 and 2 there are other greeting cards and letters and gifts Ex PW 30/C 1 to C83 sent by Ms. Bharti Yadav to Nitish Katara, the deceased.
xxvii) The perusal of the greeting cards Ex PW 30/1 and 2 shows that these are simple greeting cards written by Bharti to Nitish which do not reflect any love affair between the two but only friendship. It is 164 strange to note that the IO out of a lot of 85 greeting cards and letters and gifts chose only these two greeting cards Ex. PW 30/1 and 2 which were only reflecting friendly relations between the two and nothing more than that. Whereas the other greeting cards and letters which I shall discuss hereinafter one by one are reflecting something more than friendship. It appears that intentionally the IO picked up only these two cards and avoided to bring other material on record which was more relevant to prove that the relationship between the two was not merely friendship but something more than that.
xxviii) The letter Ex. PW 30/C1 is the most important document to prove the relationship between Bharti and Nitish . The same is reproduced as follows:
165
" Dearest Chimpu, I guess tis is the first time m writin directly to you... although I never wanted to ......but as you say probably I cannot xpress myself... I know m not only bad m real bad at it... but i guess i made it clear the very first day... alongwith i said many more things which probably you even won't remember by now... don't ask m what??? coz' even I cannot recall nethin.......
Hey Chimpu, don't you think wat a jerk I m? And I completely argu with you... i m a jerk!!!! u hate my ''pata naiz'' and '' kuch naiz''.... but they are part of me..... that is wat bharti is make up of .... very irritatin..... rite??? now m not asking you but m damn sure and infact tellin u tht u did not just made a mistake.... u made a blunder by choosin me...... Agree!!! u cannot leave.... neither can i..... coz i love u and i love more than nebody or nething in this world.... infact i consider u as my world.....
I did try to change myself 4 u...... and i guess was 166 even able to change myself ....but i guess not upot ur mark....ya! I know you don't xpect nethin from me.... u dont have ne xpectations xcept 'honesty'.... rite???? but still i went wrong somewhere.... where?? I myself don't know.....And please I know you respect my views and appreciate that I 've changed 4 u.... but I guess I haven't told u tis before i give a damn to ur respect n appreciation.... I don't want them..... all I wanted was 'u' and not words of appreciation.... i don't know wheather I sud or i sud not b sayin all tis.... huh! Ya sure u 'll b hurt once again.... because of me and only me.....But lets try and figure out tis one also... do u realise sometime in ur life that even I get hurt...even I have that little place called heart... which hurts, screams .... ana above all feels everthin '. I know Chimpu, m being very rude, blunt and straight but i guess i can't help it... u say u can't take it nemore' Cud u please tell me wat is it that u cannot take nemore???? kuch nahi..... ha! Chimpu, I means no chains..... no need to stick to me if u think u cannot survive with 167 me... only because u love me....i guess abhi u need to know a lil more about wat love is???? For suer its not just a word.... not just a word! Maine tumhe kabhi 'jeeney' se nai roka kabhi..... 'mujhe jeenay dou bharti please'........ Seriously its not very pleasant to hear all this............. it not only hurts..........it tears u apart ...... and i mean it! ME, lemme explain myself in ur words......full of negative thots........huh!.......... m pain in ur ass......all i can do is to crib.........bonus point with me is I cannot speak...... i mean xpress myself..... rite???? plus m damn irritatin....... i repeat things...... give unnecessary suggestion...... not serious ........... n even after knowin ur schedule always intrupt in that........ so,,,,,, how does it sounds?? Bad na...... real bad..... (if u want u can add few more) But hey, just subtract all of these out of bhati n boom ! Watta u get.... hey, thats a girl but i bet boy she is not bharti.... she is not..........Remember, I asked you that please neva ask me to change b'coz bharti loves herself b'coz of wat she is and not wat 168 people want her to b???? but again i was far away from reality... again my fantasy... how can things b just the way i wanted them to b??? Such a idiot i m .........I know probably is asked too much from u....... too much..... but u know wat i always wanted somebody to b mine.....n where I cud feel it not only in his words but in his actions too.... Dekha, again me and my damn, fuckin fantasy world ! A person who'll make me feel special all the time........Tellin u the truth... Chimpu reality sucks... it stinks.... I hate myself for it ..... I u know wat i always loved u as my friend..... u were a sweetheart..... i thot u understand and u care.........but m realisin that things change....... they do...... And i wanted somebody to understand me..... but i guess u and i don't...... u want me to xpress myself ..... Ek baat batao... kaha tak loon main? Kahan tak....... u want me to understand u.... i try but don't succeed..... Sorry ! M not as gud as u thot me to b........ From last 6 months m just hopin that thing will change from better to gud.... but u know wat they are going the opposite way..... they 169 are turnin from bad to worse..... I cannot talk to nebody..... nobody.... u know how lonely I feel at times..... tumhe guss aata hai tou tum phir b nikal laete ho... jaa raha hu?? kahan? Pata nai..... agar mai aisi situation may hu tou bolo mai kya karoon? Hmmm.. tum jab tak 10 baar nai puchoge...... tab tak mai kuch bataungi nai... haina? U have to ask several times before I cud answer.... thats irritation.... I know ..... but even m helpless.... can't help it and its not u askin again and again which makes me speak ..... its the time which i take to open up.... to speak..... And yes u r rite..... absolutely correct I want importance and attention.... par kabhi ye socha hai y do i want it?? B'coz m nor getting it.... agar mujhe jo importance chahiye who mil rahi hoti.... tou b mai aise hee karrti kya??? can u realise this when do a person..... m talking from a kid to a grown up.... everybody needs attention and if m doing the same wat is wrong with me????EVen I agree that m selfish.... yes i m ! all i can think bout is myself.... may b that is why i stepped into 170 this relationship because again I was lonely and I wanted sumbody... who can understand me and keep me happy..... but i guess m always xpectin too much from u.... but i can't help it...... seriously i can't .... Chimpu, i wanted more of u.... ore of ur time..... more of ur love.... ur concern... ur attention.... everythin.... mai saadi hui rahti hu.... kya karun.... Sorry ! But kuch kar nahi sakti...... har cheez is tum aadat daal loge... haina? But i don't want that.... i don't want that u sud jhelo me..... i want u to understand me and accept me.... i want to live life... and i want u live..... it seems as if u r suffocatin urself with me... u want explanation for each and everythin in life which I can't give... things mite b too certain in ur life always but they r not in my case.... things which i myself don't know how can i tell u???? small things like days plan... want m doin next etc....... and above all m really sorry i cannot cannot please everyone....... even i want a breather sumwhere...... which i always try to find in u but somehow u always get irritated n instead of feelin 171 better i feel bad... broken !!!! I love u Chimpu I love a lot.... can't live without u... can't imagine my life without u but....... i still don't know where exactly m headin too...... & at this point of time m unable to figure out nething...... PLEASE HELP ME !. '' xxviii) From the aforesaid letter it is amply clear beyond any doubt what to talk of beyond reasonable doubt that Bharti was in love with the deceased. She has referred Nitish as her world and that she loved him more than anybody or anything in the world. In this letter she has referred herself as a very irritating person and accused the deceased of making a blunder by choosing her. At the same time she wrote to him that she did try to change herself for him and was even able to change herself but she clearly wrote in the 172 letter that she did not care for any respect or appreciation from the deceased in this regard but all she wanted was Nitish and not words of appreciation.
xxix) Ex.PW 30/C 2 is a piece of paper on which Bharti has addressed Nitish as 'Chimpu' and herself as 'Ghugu' and has written that she loves him tons and he is his life and the meaning to this life.
xxx) Ex PW 30/C 3 is a greeting card dtd. 17.10.01 written by Bharti as Ghugu to Nitish as Chimpu.. It is mentioned in the card that there was relationship between the two for the past 10 months but she wanted to stay in love with him not for rest of his life but for rest of her life.
xxxi) Ex.PW 30/C 4 is another letter written by Bharti to the deceased on 173 22/7/2001 at 2.30 am on the letter head of Clark's hotel the Mall Shimla. The letter is running into four pages which is descriptive of their relationship. It is another important letter to come to the conclusion as to what relationship the two were sharing with each other. To appreciate its contents and the feelings Bharti had for the deceased , this letter is also reproduced as follows: Dearest Chimpu, I know kinda weird getting nother written note from me. But, I just wanted to let u know that ' i love you' more than these words can express. All i want in my life is to be with u always. I guess i've never prayed so much for nethin in my life as i pray for 'u', to be with u, to be in ur arms. You are my sweetest dream cum true and one thing 'bout which m damn sure is 174 that i cannot live without u. If i have a life its with u otherwise for sure m not gonne live. There is only one thing m scared of... that is one fine day u turning to me and askin me 2 fuck off. Because then m nowhere.
Without you there's no meanin in my life.... i can feel a vaccum within me without u. U r the only thing Oops ! I mean the only one i ask for.....i 'll go nething for you but cannot even bear the mere thot of living without u.
Chimpu I love u and i love u a lot. Sweetheart, I dunno y m writin tis 2 u but I really really missed u on my birthday... i tried. I howled and did xactly the way u wanted me to do.... and u no what hurted me the most... the fact the I wa not able to even see ur face on my birthday.... u huggin me and wishin me face to face just remained a dream for me..... I know from next year 175 onwards u 'll always b there.... but honey tis year wud neva cum bak... tis was my first b'day... and it was not with u and i was tou not even close to you i was very far away.... sabko happy rakhna hai haina?..... nai sweetheart m no complain n m not cribbin m just tellin u tht i didnt feel gud n next year is tooo far abhie.... N thanku ! Pudda I felt like the luckiest person on earth wen I received ur cards in ur sweet special way... ur gesture was so sweet that I dun have words to define... after each card i was waitin for nother.... ever after receiving the last letter I was still waitin 4 yet nother....''Yaha ka mausam bahut haseen phir b dil tou udass hai yun tou tumse door sahi mai dil tou tumhare paas hai'' Love u naa ! ((*)) yaha the weather is damn xc..... the cool breeze, clouds in ur feet, thanda... 176 ummmm everythin is just purrfect the only thing which is missin is 'u' . Its almost 3:00 in the night... everythin is quiet.. i can clearly hear the drizlin sound... can feel the 'thandi hawa' and the silence of the night.... just wish u were here to hold me in ur arms and i cud lie there in ur lap like a baby... but then again a dream of mine (n it will pucca cum true one day!!) i am missin u Chimpu..... badly :( tumhari bahut yaad aayi saara din, saara waqt.. pata nai kab tumsae mulungi... ya. Hopefully on tuesday... m just waitin... i wanna fly away n cum 2 u ...b with u in ur arms cuddly n cozy... but :( hard luck.
Baby m Missing u ! Please aa jaao na Mele paas! 177 Please ! Love U ! Love U ! Love U ! Love U ! Love U ! I love you Chimpu U r m life my love cannot live without u... life doesn't have ne meanin without u... kabhi saath matt leave karna varna survive nai kar paungi.... promise karo please.... that u'll always with me and for me, will neva betray or cheat me... i wont be able to take it... sab mujhe darate hai, samjate hai but i trust u Mere trust ko kabhi tootnay matt dena.... I love you... ab mujhe cute baby is that hug kao... kissi dou and promise dou ki u 'll always b MINE.'' 178 xxxii) The perusal of this letter apparently gives a loud and clear message that she was madly in love with the deceased. Giving respect to her feelings I do not want to comment any more on the contents of the letter as it was something too personal to her. However, at the time I cannot restrain myself from observing that as per this letter Bharti, without Nitish, had no meaning in her life. She could not even think of living without him. Besides, the contents of the letter shows that it was Bharti's birthday when she was away from Nitish and missed him like anything but she was sure that next year onwards he ( Nitish )would always be there with her but still she repented that the birthday she celebrated without him would never come back. She made a request to Nitish in the 179 letter that he should never leave her or she would not be able to survive. She also sought promise from him that he would always be with her and for her and will never betray or cheat her as she won't be able to take it. It is important to note that in this letter she has also made reference that she had been threatened by everyone and they had also tried to make her understand but she still trusted Nitish. She also mentioned that she has to please everyone.
xxxiii) The argument of the prosecution is that in this letter Bharti had
expressed her fear from her family regarding her relationship with the deceased which proves that it was not approved by her family members and that this was the motive behind the abduction and murder of the deceased by 180 the accused persons. Whereas on the other hand the counsel for the accused persons have submitted that this one line in the aforesaid letter is of no consequence and does not prove that whatever relationship was there between the two was known to the accused persons and they had any objection to the same. xxxiv) However, in my opinion the language of the letter is absolutely simple and straight. Bharti had expressed her feelings for Nitish with open heart in the letter and as per the contents of the same she was even hopeful of getting married to the deceased during the next year ie 2002, though she did not use the word ''marriage'' in the letter but the contents of the same lead to no other conclusion as she clearly wrote in the same, " Sweat Heart , I do not know why I am 181 writing this to you but I really, really miss you on my birthday.... I cried, I howled and did exactly the way you wanted me to do ....and you know what hurted me the most, ....the fact that I was not able to even see your face on my birthday ...you hugging me and wishing me face to face just remained a dream for me. I know from next year onwards you will always be there ... but honey this year would never come back.'' She also wrote in this letter the reason as to why she could not celebrate her birthday with the deceased. She wrote in the letter Sabko happy rakhna hai haina?
which also leads to the inference that she had been sent to Shimla on her birthday under pressure and she could not celebrate her birthday with Nitish despite the fact that she wanted to do so.
182
It is also written in her aforesaid letter that Sab mujhe darate hai samjhate hai but i trust you mere trust ko kabhi tootnay mat dena, i love you .
The above referred contents of her letter shows that she was threatened by her family members who did not approve of her relationship with the deceased and were trying to persuade her to severe of her relationship but she still trusted the deceased and was hopeful. Even in the letter Ex.PW30/C1 she speaks in guarded words that for the last 6 months she was hoping things would change from better to good but they were turning from bad to worse. She also mentioned in the said letter that she cannot talk to anybody and how lonely she was at times. These letters further reflect unpleasantness about 183 her relations with Nitish at her house and that situation was getting from bad to worse. The letter means to say that her affair was known to her family but was not approved.
Xxxv) Documents Ex. PW 30/C5 to C 15, Ex.PW30/ C 18 to C 73, Ex.PW 30/ C 75 to C78 and Ex.PW 30/ C 83 are greeting cards sent by Bharti to Nitish on different occasions such like birthday, friendship day, valentine day etc. All these cards are nothing but full of love from Bharti to Nitish. The greeting card Ex. PW 30/C 20, though is not bearing any date but one thing is clear from the card that when it was sent by Bharti to Nitish she was in a confused state of mind and did not know what to think, what to decide and what to do but she trusted Nitish and believed in him and wanted him to live upto it so as not to regret anything 184 later. It appears from the aforesaid card that the confusion which prevailed in her mind was regarding her relationship with the deceased as to whether she was on the right path and whether she could trust the deceased to be sincere to her. xxxvi) In the greeting card Ex.PW 30/C42 she has made it clear that the deceased was not only her best friend but he was her lover too.
xxxvii) Ex.PW 30/ C 74 is the bed sheet of blue, red and white colour with boxes printed thereon and in each box the word Love is mentioned which must be thousand in number. PW30 Neelam Katara has claimed that this was gifted by Bharti to Nitish. However, when Bharti appeared in the witnessbox she denied that she gave this bed sheet as a gift to the deceased. The reason 185 was obvious as it was not bearing her writing which could be compared with her admitted writing and it is only for this reason she admitted all the letters and greeting cards since they were in her own writing and could be proved otherwise also through the expert evidence.
xxxviii) PW 30 Neelam Katara further produced on record the valentine day album Ex. PW 30/C 79 and testified that it was sent by Bharti to Nitish, which consists of photographs Ex. PW 30/C 80, C 81 and C 82. of both Nitish and Bharti together. xxxix) The argument of the defence is that the testimony of Neelam Katara is full of improvements and thus cannot be relied upon. However, I find no force in the above arguments of defence. Perusal of the cross 186 examination of PW 30 Mrs. Neelam Katara shows that she had answered the queries made by the IO only. Regarding her statement U/s 161 Cr.PC recorded on 14.03.2002 she stated that she answered only queries of the IO and did not tell at what she knew. However, she categorically stated that she had told the IO the entire episode about the travel of his son Nitish Katara and friends to Bombay by Jet Airways on Bhawna's birthday. She was confronted with her statement Ex.PW 30/DB dtd..14.3.2002, where this fact was not recorded. Once she categorically stated that she had made this statement to IO, therefore now it was duty of the defence counsel to have questioned the IO, whether she made any such statement to him and if Yes, then why he did not record it. However, in the present 187 case the IO was not cross examined by either of the defence counsel to this effect. As such it is presumed that she did make such statement to the IO but was not recorded by him. My this view is supported by an authority reported in AIR 2000 (SC) page 1833., whereby it was held that : ''R eading Section 161 ( 2) Cr PC with the Explanation to Sec. 162 Cr. PC, an omission in regard to be significant must depend upon whether the specific question, the answer to which is omitted was asked of the witness. It was held that in this case the Investigating Officer, was not asked whether he had put questions to a eye witness wife of one 188 of the deceased person asking for details of the injuries inflicted or of the person who had caused the injuries . It was held that though the witness had not given to the police particulars of who had caused which injury, she had not deviated from the actual occurrence and the manner it had happened. '' The aforesaid authority is fully applicable to the facts and circumstances of the present case as PW 30 Smt Neelam Katara had answered only the queries put to her by the IO which she had explained in her chief examination and her detailed statement before the Court in no manner deviated from what she had stated in her complaint Ex.PW 1/1 and her statements U/s 161 Cr PC. Ex. PW 30/DA and DB.
189xl) Moreover this fact is also admitted by Bharti Yadav in her testimony that she alongwith Nitish Katara, her sister Bhawna Yadav, her fiancee Deepak Yadav and one R. Yadav had gone to Bombay for celebration of the birthday of her sister Bhawna Yadav, therefore the testimony of PW 30 Neelam Katara to this effect stands corroborated and is true.
xli) The other relevant portions of her testimony regarding which she was confronted with her previous statement are to the effect that as to whether she told the police that after MBA Nitish Katara s friends moved out and Nitish did not go out due to his fathers condition and as far as she knew that Bharti Yadav had not taken any job and their friendship then moved closer and they fell in 190 love with each other. However, she categorically stated that she do not remember if she had told the police the above facts but she definitely told the police that Bharti and Nitish had fallen in love with each other. Again she was confronted with her statements Ex.PW 30/ DA and DB to the effect that she had told the police that the size of flower bouquet sent by Bharti Yadav to Nitish Katara was increasing specially on birthday of Nitish in April 200l nor she could remember if she had told the police that they were arranging get together but she insisted that she had told the police that they were in love with each other. However, again it was the duty of the defence counsel to have questioned the IO as to whether Neelam Katara had told this fact to him and if so why these were 191 not recorded by him in her statement. It was only the IO who could answer as to why he skipped these facts from her statement. It is pertinent to mention that the witness explained before the Court during the cross examination by the defence counsel that she had made statement to the police when her son was missing and then again after two days of his cremation, as such she was under tremendous emotional pressure and tension so she could not remember exactly what she had told to the police, however she clarified that when she deposed before the Court there was certainly more clarity of vision in her mind and she could think without emotion, she very fairly admitted that she did not inform the police that she could gather the intimacy and closeness of her son Nitish with Bharti from her 192 mother's sense but she did not consider it necessary to inform the police. She further admitted that she did not tell the police specifically that she learnt in Dec. 2001 about her son's intention to marry Bharti and their being in love with each other. She simply told about their intention to marry and their love with each other without telling the date, month or year when she came to know about this fact. She admitted in her cross examination that she do not remember if she had told the IO that she was told by her son that Bharti was waiting for an opportunate time to talk to her father, her brother's marriage was fixed for after elections and she was waiting for when she would be able to talk to her father and would be able to convince him for this marriage. The contention 193 of the defence counsel that the said statement of the witness is after thought and is motivated to falsely attribute knowledge to the accused persons about any such relationship between the deceased Nitish Katara and Bharti Yadav. It is submitted that if there had been any such information available to Neelam Katara she ought have mentioned the same in the FIR or in her statements U/s 161 Cr. PC. However, I do not agree with the aforesaid contention of the defence counsel as these facts which she had narrated in the Court are only explanation/elaboration of what she informed the police in the FIR and statements U/s. 161 Cr. PC. Moreover FIR and statement U/s 161 Cr.PC need not contain all the details and it is sufficient if they contain the broad features. It is held by the Hon'ble 194 Supreme Court in the authority reported in 2006 (III) AD (Cri.) (SC) Page 241 that :
'' It is well settled law that FIR is not an encyclopedia of the facts concerning the crime. Merely because of the minutes details of the occurrence were not mentioned in the FIR, the same cannot make the prosecution case doubtful. It is further held that it is sufficient if a broad picture is presented and the FIR contains the broad features. For lodging FIR, in a criminal case and more particularly in a murder case the stress must be on prompt lodging of the FIR.'' It is further held in an authority 195 reported in 1998 CrLJ 2046 by the Hon'ble Allahabad High Court that :
''FIR and the statement recorded U/s 161 CrPC are not an encyclopedia to have given each and every minute details which had come into light during the deposition in the Court some witnesses do not think it proper to get it mentioned in the FIR or in their statements recorded U/s 161 Cr PC, but it does not mean that the facts do not exist. '' xlii) In view of the above authorities, all these details as narrated by PW30 were not required to be given in the FIR or in the statements U/s. 161 Cr PC as these facts are only 196 explaining as to why and how the accused persons were averse to their marriage. The witness was not sure if she had stated to the police that she asked her son as to what were the objections being raised against their marriage and he told her two objections, firstly that they wanted to marry in their own community and secondly, they consider the service class as poor class. She has already explained the trauma under which she was at the time she lodged FIR and she made statement to the police. She has further clarified in her cross examination by deposing in the following manner: "I made an umbrella statement at that time and I was under great tension due to my son and whatever facts, I could tell at that time, I told and whatever was equired by the police specifically I 197 answered, now after all this, I have told all facts with more clarity and in more details."
Even if she did not state all these facts to the police which she testified in her chief examination, these cannot be termed as improvements as she has only explained the relationship between Bharti Singh and Nitish Katara and has elaborated the contents of the FIR and statements U/s. 161 Cr. PC. xliii) It is held in the authority reported in 2000 (6) (Supreme) page 146 that :
''on an analysis of the statement of PW 2 (which is party of Vol IV of the paperbook), his statement under Section 161 of the Cr PC and the deposition made by him on 15.10.1984 during investigation (which is part of 198 Vol. III of the paperbook) we have come to a conclusion that there is no material improvement, which less contradiction in the deposition made by him before by the Trial Court after being granted pardon. The so called improvements are in fact the details of the narrations extracted by the Public Prosecutor and the defence counsel in the course of his examination inchief and cross examination. '' xliv) The aforesaid authority is fully applicable to the facts and circumstances of the present case as what has been termed as material improvements or the contradictions in the statement of PW 30 Mrs Neelam Katara 199 recorded in the Court with her previous statement, these are not material improvements much less contradictions but are infact the details of the narrations extracted by the Spl.
PP for State and the defence counsel in the course of his examination in chief and cross examination.
xlv) Thus, the statement of PW 30 Mrs. Neelam Katara regarding the visit of Nitish Katara and Bharti Yadav to Mumbai on the occasion of the birthday of her sister Bhawna Yadav, Bharti s opening bank account with BNP Paribas Bank, Connaught Place, New Delhi, giving her residential address as ie of Nitish Katara ie 7 Chemsford Road, New Delhi which is based on documents and is admitted by Bharti Yadav during her cross examination by Spl. PP for State which 200 proves that PW 30 Neelam Katara is a truthful witness. Besides, since she has already explained the trauma she suffered on account of missing of her son and thereafter he was found murdered and was cremated two days before her second statement U/s. 161 Cr PC which was recorded on 14.3.02, it would be inhuman to expect her to give all the minute details of the relationship between Bharti Yadav and Nitish Katara to the police, more so, when her son went missing and she was expecting happening of untoward incident at the hands of the accused persons who were not enjoying good reputation in the society. xlvi) It is pertinent to mention that both the defence counsel did not give any suggestion to Neelam Katara that her son did not disclose to her about his love affair 201 with Bharti Yadav and about their plan to marry. She was also not suggested that her son did not disclose to her in Dec. 2001 about his intention and love for Bharti and he told her that he was not in a hurry to marry as he wanted to settle down first but Bharti's father was looking a match for her and therefore she may have to disclose her father about her love. Similarly in the present case as referred above no suggestion was given to PW 30 Neelam Katara as to why she should have given false evidence against the accused persons. Nor any suggestion was given to her that the facts which she deposed in her chief examination, she did not get the knowledge of the same from her son Nitish Katara. In the absence of any suggestions to this effect that Nitish Katara her son never disclosed to 202 her about his love affair with Bharti Yadav, their plans to marry and the knowledge of the same to the accused persons, it is presumed that the testimony of the witness is truthful and is not denied by the defence. I find no reason to disbelieve her testimony, particularly when she had no motive to depose falsely against accused persons. Rather in such type of cases the complainant would always look for the real culprit to be punished then the innocents. The defence counsel have only tried to contradict her statement before the Court with her previous statements Ex.PW 30/DA and DB and has termed that her testimony was full of improvements whereas it has already been observed above that her testimony was not full of improvements and contradictions from her previous statements but 203 she had only given the details of the narrations extracted by the Spl PP for State and defence counsel in the course of examination in chief and cross examination. xlvii) Regarding the argument of the prosecution that no suggestions were given to PW 30 Mrs. Neelam Katara and other relevant witnesses with regard to the incriminating evidence against the accused persons the defence counsel has cited an authority reported in AIR 1969 Gujarat 69 Koli Trikam Jivraj and Anr Vs The State of Gujarat whereby it is held in para 18 of the judgment as follows :
'' there is another principle which is equally to be borne in mind that suggestions made in the cross examination of prosecution witnesses 204 cannot be used to fill in the gaps in the evidence of prosecution. Burden lies on the prosecution to prove the guilt of the accused. Such suggestions cannot stand higher than the statement of the accused U/s. 342 of the Cr.PC. The statement of the accused U/s. 342 Cr.PC cannot be used against the accused unless the prosecution proves its case against him by satisfactory evidence. At times it is used only to lend an assurance to the case of the prosecution case but it can never be used to fill in the gap in the evidence of prosecution.
The Ld. Sessions Judge was 205 obviously, in our opinion, in error in relying on the suggestions put in the cross examination of prosecution witnesses Dharamshi and Premji by the lawyer of the accused, accepting them as statements of the accused and binding on them, and treating the case put forward therein as a circumstance against the accused. In the present case the evidence led by the prosecution is totally insufficient to prove that the accused had committed the crime and no question of lending assurance to prosecution arises. The circumstance that suggestions were put to the prosecution witnesses in their cross examinations that 206 Dharamshi and Talshi beat the accused Nos 1 and 2 outside their vadi cannot be used against the accused to fill in the gap in the evidence of prosecution.'' Though I fully agree with the aforesaid authority to the effect that the onus is always on the prosecution to prove its case and the suggestions to the witnesses cannot be used to fill in the gaps. However, the aforesaid authority is not applicable to the facts of the present case wherein from the testimony of Smt Neelam Katara as well as the admission of PW 38 Bharti Yadav in her chief examination about writing of letters/ greeting cards to the deceased it is proved by the prosecution that she had affair with the deceased and the accused persons had the knowledge of the same. For this reason 207 it was necessary for the defence to have put the relevant suggestions to the contrary to the prosecution witnesses which has not been done. xlviii) On the other hand, Spl PP for State has cited an authority reported in 2007 IV AD (Cr.) (SC) 445 titled Subhash Vs State of Haryana wherein it is held by the Hon'ble Apex Court that :
"nothing had been suggested to PW 8 as to why he should have given false evidence against the appellant. No reason to disbelieve the sequence of events narrated by PW 8."
The aforesaid authority is fully applicable to the facts and circumstances of the present case . As there was no reason for PW 30 Neelam Katara, the complainant to falsely 208 implicate the accused persons by alleging falsely that her son Nitish Katara and Bharti Yadav had love affair which they wanted to culminate in marriage and that this fact was known to the accused persons who were averse to the marriage. PW 30 has specifically stated in her statement that in Dec 2001 her son Nitish Katara had told her about his intention and love for Bharti and their plan for marriage and that her brothers were aware of their intention and they were averse to her marriage with him. I find no reason to disbelieve her aforesaid testimony. xlix) It is further clarified that the present case is based not on direct evidence but on the circumstantial evidence and as such in the absence of any direct evidence to the effect that both Nitish Katara and Bharti Yadav had love affair and this was not to the liking of the 209 accused persons, it could only be proved through Nitish Katara who is no more alive, thus it has to be inferred from the circumstances. First such circumstance is as to what transpired between Neelam Katara and Nitish Katara when he was alive. Merely for the reason Bharti did not support the prosecution case does not lead to the inference that Neelam Katara is a false witness, particularly when she had no reason to falsely implicate the accused persons nor the defence has alleged any enmity between Neelam Katara and the accused persons nor she was so suggested during her cross examination. Besides, Neelam Katara categorically stated in her chief examination that since Nitish Katara after college remained in Delhi due to his father's condition and as far as she knew 210 Bharti had not taken up any job, which is brought them closer and they fell in love. She has also stated that the size of the flower bouquet being sent by Bharti was increasing so from her mother's sense she could gather the closeness and intimacy was increasing and that in Dec. 2001 Nitish told her their intention to marry and that father of Bharti was looking for a match for her and therefore she may have to disclose to her father about her love and their intention to marry and that her brothers knew about her intention but they were averse to their marriage with him. However, she was confident that she would be able to convince her father.
l) The witness was not given any suggestion to the contrary by the defence in her cross examination. Moreover, the fact that 211 Nitish used to talk to his mother about their relationship is admitted even by Bharti in her cross examination by counsel for accused Vikas Yadav, wherein she stated as follows: ''Once Nitish mentioned to me for the reason I belonged to a particular family, his mother was not comfortable with our relationship. She did warn him to be friends with me, since my caste is Yadav and Mr DP Yadav is my father"
li) The said statement of Ms Bharti Yadav corroborate the statement of Smt Neelam ktara in her chief examination which is reproduced as follows: " Nitish had told me that Bharti was planning to tell her father about their intention about their intention to marry and that her brothers knew 212 about her intention but they were averse to her marriage with him but she was confident that she would be able to convince her father. I was told by my son that Bharti was waiting for an opportunate time and she was waiting her brother to go out of town after the election, and his marriage was fixed as far as I know for 6th March and she was hopeful that after marriage he goes out she would be able to convince her father and would be able to talk to her. I asked my son as to what was the objection being raised and I was told that there were two objections, one that they will marry the girl in their own community and secondly because our family was of Govt. servant and they consider the service class to be poor class. I also had my own objection and after considering pros and cons 213 I told my son that it would not be a suitable marriage but my son was adamant. I had told my son about the possible interference and that he (brother of Bharti was already facing criminal case etc) but my son was looking everything through tinted glass and was adamant in marrying her."
lii) It is further important to notice that even the family of Bharti Yadav was well acquainted with the affairs of the family of Nitish Katara as deposed by Neelam Katara during her chief examination. She deposed to this effect as follows: " From the police station I decided to go to house of DP Yadav to meet mother of Bharti, I requested police persons to show me the house, they 214 took me to the house and pointed out to house and then left. I then went to the house and mother of Bharti herself had opened the door and took me inside. I confirmed from her and she told me that she was mother of Bharti. She spoke to me courteously and behaved with me nicely."
She further stated as follows:
" I found her upto date about my family affairs, my husband was ill, she was knowing about illness of my husband, I was advised surgery only 2 days back and when I told her that we all were in tension and my husband was sick, she told me that she knew that my husband was ill and I was to undergo surgery and that family was in tension."
which shows that even Bharti was discussing the affairs of the house of Nitish 215 Katara with her family members. This also leads to the inference that Nitish was known to the family of Bharti Yadav and their affair was also known to them.
liii) Prosecution has examined Bharti Singh Yadav as PW38. As per the prosecution it is the relationship between this witness and the deceased Nitish Katara which led to his abduction and the murder by the accused persons.
liv) PW 38 Bharti Singh Yadav testified that she had several friends in IMT Ghaziabad namely Gaurav, Nitish, Gagan, Pooja and others.
She stated that Shivani Gaur was her school friend, who was also in IMT Ghaziabad but in a different course. After finishing her MBA she joined college of CAS and at present she was doing M. Sc from London. She stated that she 216 was friendly with Nitish Katara( deceased) . In answer to question of Spl PP for the State :
' 'Ques: Whether they both were in love and wanted to marry?
She replied, Ans. I used to like him but there was no proposal for marriage."
During her chief examination she admitted the photographs Ex PW 11/1 to 4 in which she is appearing alongwith the deceased. However, she stated that she do not remember as to where these photographs were clicked. lv) The prosecution has also relied upon the call record of mobile phone of Nitish Katara bearing No.9811283641 and mobile No. 9810038469 which was registered in the name of Bhawna Yadav but as per the 217 prosecution this mobile was used only by Bharti.
lvi) PW 38 testified that she did not have any mobile at that time. She denied exchange of gifts with Nitish, however she stated that she used to send greeting cards to her friends and also used to receive from them. She also denied that she gifted any wrist watch to Nitish. This witness also denied that she made any statement to the police in the present case.
She was specifically asked by Spl PP for State: ''Q: Did you make any statement to the police?
She replied, Ans: One of the lady police official had conversation with me but I did not know whether it was reduced into writing.'' 218 This witness was declared hostile by the prosecution as she was found resiling from her previous statement dtd. 02/03/02. She was cross examined at length by Spl. PP for State. lvii) During her cross examination by Spl. PP for State she testified that except her conversation with the lady police official there was no interrogation of her by the police in relation to the present case and whatever they asked her she replied but she did not know if it was reduced into writing. She voluntarily stated that she did not read her statement. She claimed that she had conversation only with the lady police official after 3 /4 days marriage of Shivani Gaur. When a specific question was put to her by Spl. PP for State that her statement was recorded by the police on 2.3.02, she answered :
219
" I do not know if it was my statement to the police but I did have conversation with the police but I do not remember the date, when this conversation took place. "
lviii) She further claimed that she never had any conversation with Anil Somania, SO PS Kavi Nagar in connection with the present case and she had only conversation with the lady police official. She was confronted on material particulars with her statement Mark 38/A which was lateron exhibited as Ex.PW 35/AB in the statement of SI Anil Somania, IO of the case, who categorically stated that he had recorded the said statement at R 4/16, Raj Nagar Ghaziabad in the presence of lady SI Anju Bhadoria and Sh DP Yadav, father of Ms Bharti Yadav. The perusal of her testimony 220 further shows that she has admitted to have informed the lady police official during in her conversation that while studying in IMT Ghaziabad she had become friendly with Nitish Katara and she had also told her that Nitish had Gypsy of Green colour though she denied she did not tell the number of the vehicle to the police since she did not know the same . Perusal of the statement Ex PW 35/AB recorded U/s. 161 Cr. PC shows that this fact finds mention in the statement that she had become friendly with Nitish Katara while studying in IMT and Nitish used to come from Delhi in Green Colour Gypsy, though in her statement the number of the vehicle is also mentioned. She denied that she had informed the lady police official that their friendship developed into love and she started liking Nitish Katara 221 from her heart and she was confronted with he statement Ex. PW 35/AB where these facts find mention. She also denied that she had informed the lady police official that after completing course in 2000 from IMT Ghaziabad they continued to be in touch with each other, got photographed and used to go out or that Nitish used to love her very much and he had a talk with his mother about their marriage or that on 14.2.02 on valentine day they had met, exchanged the gifts and also got photographed. She was confronted with her previous statement Ex.PW 35/AB to this effect where all these facts find mention. lix) During cross examination by Spl PP for State she further denied to have informed the lady police official that on 15.2.02 there was ladies sangeet in the house of Shivani at 58 222 Ghaziabad where she alongwith her friends had taken part in dance or that in the marriage also she had danced with Nitish Katara. She was again confronted with her statement Ex.PW 35/AB where these facts find mention.
lx) She further denied to have informed the lady police official that on 16.2.02 Sukhdev Pehalwan r/o Dewaria who used to work in their office at Bulandshahar had also come alongwith his brothers Vikas and Vishal in the marriage of Shivani. She was again confronted with her statement Ex PW 35/AB where it is so mentioned. She voluntarily stated that she did not know any Sukhdev Pehalwan .
lxi) She further denied that she informed the lady police official that at about 1.30 am 223 she came to know that her brothers Vikas and Vishal alongwith Sukhdev Pehalwan had called Nitish Katara and took him away and she become upset and she searched for Nitish Katara in Diamond Palace but she could not trace either his brothers and other accused Sukhdev Pehalwan or Nitish Katara .She was confronted with her statement Ex.PW 35/AB where it was found so recorded.
lxii) She further denied to have informed the lady police official that her brothers and Sukhdev Pehalwan had come in the marriage of Shivani in Tata Safari which fact is found mentioned in her statement Ex. PW 35/AB. lxiii) She denied to have informed the lady police official that then at 2.15 am she called from her cell phone No. 9810038469 to land line Nos. 4717390 and 4714101 several times as 224 she was apprehending that accused persons may not cause any harm to Nitish.
lxiv) She further denied to have informed the lady police official that accused Vikas and Vishal were not happy with her dance with Nitish and their being photographed together. She was confronted with her statement Ex. PW 35/AB where these facts find mention. lxv) She further denied that at 4 am she rang Bharat Diwakar on his cell No. 9810154964 to enquire about Nitish as Bharat Diwakar had accompanied Nitish from Delhi to marriage and Bharat Diwakar called her twice around 6 am on her mobile. She also denied that she had informed the lady police official that PW 26 Gaurav Gupta had called her from mobile No. 9811220691 which belonged to PW Yash Tomar and he informed her that Nitish was not 225 traceable. She further denied to have informed the lady police official that on 17.2.02 at 7 am Bharat Diwakar called her from his cell phone and informed that there was no news about the whereabouts of Nitish. She was confronted with her previous statement Ex.PW 35/AB to this effect., where all these facts are mentioned. lxvi) She was further confronted with her statement Ex.PW 35/AB to the effect that she had purchased a wrist watch Esprit from Shopper Stop Ansal Plaze South Ex., New Delhi, with her own money and gifted the same to the deceased, where this fact is mentioned. lxvii) She further denied that she had told the lady police official that at about 7.20 am Smt Neelam Katara, mother of Nitish Katara called her and informed that Nitish had not reached home and again she had called her 226 at 8 am and asked her to give the telephone No. of her father.
lxviii) During her cross examination by Spl PP for State the witness denied that during the days of incident she had e mail address [email protected] and she also denied that she had ever any talk with Nitin, the younger brother of Nitish on telephone prior to or after the incident and that she was not aware of the email address of Nitin. The prosecution has claimed that Bharti Singh had sent approximately five e mails to Nitin during the period 19.02.02 to 24.02.02 relating to the incident as she was apprehending that she may not be able to call him on telephone. She further denied to have informed the lady police official that she had sent e mails from time to time to Nitin, the brother of the Nitish 227 since Nitish was not traceable, to this effect she was confronted with her statement Ex PW 35/AB where this fact finds mention. lxix) She also denied to have stated to the lady police official that on 16.2.02 at about 3pm Nitish had called her from his mobile No. 9811283641 from her mobile No. 9810038469. She further denied to have informed the lady police official that at about 2 am when she came to know that her brothers Vishal and Vikas alongwith Sukhdev had taken away Nitish she tried to contact Nitish on his mobile phone but there was no response and that increased her tension and thereafter she called her residence phone Nos. 4713790 and 4714101. She also denied to have informed the lady police official that fact of friendship with Nitish was known to her aunti ie the wife of 228 Sh Bharat Yadav, her maternal uncle and also to her Buaji whom she had already told that she was in love with Nitish and they had assured her that after the election of Vikas Yadav they would put a proposal of her marriage before her father. Again she was confronted with her statement Ex.PW 35/AB where these facts find mention.
lxx) PW 38 Bharti Yadav had denied to have made any statement to the police, though she has admitted that she had conversation with one lady police official. To the contrary, the prosecution case is that her statement was recorded on 2.3.02 at her residence by SI Anil Somania accompanied by lady SI Anju Bhadoria in the presence of her father Sh DP Yadav. The statement has been exhibited during the testimony of PW 35 SI Anil 229 Somania as Ex. PW 35/AB. Admittedly the witness Ms Bharti Yadav is the real sister of accused Vikas Yadav and cousin sister of accused Vishal Yadav. In this context it is to be seen whether her testimony inspires any credence or she intentionally did not support the prosecution case with regard to the fact that she had given a detailed statement to the IO, in order to save her brothers. It is pertinent to note that during her cross examination by Spl PP for State Sh BS Joon on 29.11.06 advocate Sh, SC Bhutan, counsel for PW Bharti produced a photo copy of the complaint addressed to Director General of Police, Police Headquarters bearing the signatures of Bharti, received in PHQ Lucknow UP on 25.3.02 wherein she claimed that on 2.3.02 she made a brief statement to Times of 230 India Newspaper Correspondent which was printed under the title BHARTI GIVES BROTHER VIKAS A CLEAN CHIT''. As mentioned in the application a copy of the news clipping was enclosed alongwith the application for record and ready reference, (though no such clipping was filed on record alongwith the photocopy of the application by advocate Sh SC Bhutan, the counsel for PW 38 Bharti). She further mentioned in the application that she had reiterated her views in the Star News on the said evening. In this application it is also mentioned:
i) that on 2.3.02 she gave statement to the police in which she had dispelled all doubts about any alleged friendship with Nitish Katara,
ii) that the press and television were maliciously propagating false rumours about 231 her and her family members,
iii) that she had stated to the police on 2.3.02 that her brother Vikas took out sometime to meet her at the wedding party of her friend and left at about 10.40 pm to 11 pm and did not return thereafter,
iv) that she had also informed the police that Nitish Katara had left the wedding party about 1 and half hour later. In this application she further claimed that police did not provide her with a copy of her statement nor did they read out her statement. Further that she was assured of a copy, yet till date they have not furnished her with the same. She requested in the application for supply of a copy of her statement dtd 2.3.02. It is further mentioned in the application that in the event the police interpolated her statement by introducing 232 anything contrary to the above she expected appropriate action against them. During her cross examination by Spl PP for State she admitted that there was no date on the said complaint Ex. PW 38/X1. She claimed that the complaint was sent by her to the various authorities but she again voluntarily stated that it was sent by her through her uncle Mr Bharat Singh, as such she was not aware if it was sent through registered post or was delivered by hand. It is pertinent to note that on the front of the complaint it is mentioned Ek Prati Prapat Ki, bearing the signature of someone with date 25.3.02. However, it is observed there is no stamp of any authority receiving the complaint nor there is any complaint number.
lxxi) This witness stated that she did not 233 remember if any enquiry was made in respect of the said complaint by SSP Ghaziabad or DGP Lucknow. She also could not state if any such authority had called her to appear in person in this regard or she received any response to the aforesaid complaint in writing from any of the authorities . She claimed that she do not remember any of these facts. lxxii) It is strange to note that she was aggrieved by the stand taken by the Investigating Agency and the media reports projecting her intimacy with the deceased in terms of her statement dtd. 2.3.02 Ex. PW 35/AB but she did not remember as to what happened after the application was moved. It is not possible that she did not even remember if she was called by any such authority to appear before it in person as in 234 my opinion it is not a day to day affair for a person like PW Bharti to appear before the police and as such in my opinion she could not have forgotten such an important fact that too when it related to her personal life and was also effecting her as well as accused persons adversely.
lxxiii) Her such conducts only shows that she being the sister of the accused persons or under family pressure to save her brothers was making a statement contrary to the truth.
The aforesaid complaint was exhibited during her cross examination as Ex. PW 38/X1. The perusal of the aforesaid complaint clearly establishes a fact that that Bharti had made a statement to the police on 2.3.02 though in her testimony before the Court she denied having made any such statement. Ex.PW 38/X1 is the 235 document which the witness has herself produced and as such the contents of the same cannot be now denied by her. It is categorically mentioned in this complaint that on 2.3.02 she gave statement to the police and the police did not provide her with a copy of her said statement. lxxiv) Now it is to be seen from the other circumstances of the case as to whether witness Bharti Yadav made the statement Ex.PW 35/AB to the police or some other statement as claimed by her vide her complaint Ex. PW 38/X1.
lxxv) It is pertinent to mention that this is a type written complaint and is only bearing the signatures of Bharti Yadav and that there is nothing on record to suggest that this complaint was actually delivered in the office of Director General of Police, PHQ 236 Lucknow UP and to the other authorities to whom the copy was sent. It is only her uncle Bharat Singh who could say that this application was delivered in the office of Director General of police PHQ Lucknow(UP) and other authorities.
lxxvi) The witness has also failed to produce alongwith her complaint Ex. PW 38/X1 any such brief statement made by her to the Times of India or in the Star News on 2.3.02 in the evening. The double standard adopted by the witness while she deposed before the Court that she did not make any statement to the police and then she produced an application Ex. PW38/X1 before the Court that she had moved Director General of Police Lucknow UP for supply of the copy of the statement dtd 2.3.02 itself proves that the witness was 237 intentionally trying to mislead the Court. lxxvii) The witness during her cross examination by Spl PP for State has admitted that one lady police official had conversation with her but she did not know whether it was recorded in writing. At the same time in Ex. PW 38/X1 she has claimed for supply of copy of her statement dtd. 2.3.02 which itself shows that her statement on that day was reduced into writing. It is the claim of the prosecution that on 2.3.02 the statement of PW 38 Bharti was recorded by SI Anil Somania in the presence of lady SI Anju Bhadoria at her residence where her father Sh DP Yadav was also present. PW 38 Bharti has admitted the presence of lady police officer, though she has not given her name but it corroborates the case of the prosecution that on 2.3.02 her statement 238 was recorded by the police.
lxxviii) It is further important to note that even assuming that Bharti had moved Director General of Police Lucknow UP for supply of copy and this application was received in PHQ Lucknow on 25.3.02 there is no explanation from the witness as to why there was so much of delay in approaching the PHQ for supply of the copy when she felt that whatever was projected by the prosecution or the media was never stated by her in her statement to the police. There is also nothing on record that this witness ever approached the IO of the case for supply of a copy of any such statement or to seek explanation as to why wrong facts were being published but to the contrary she straight away approached the Director General of Police, UP. At the same time there is also 239 nothing on record that after this application was moved on 25.3.02 , though there is no such proof that this application was actually received in PHQ Lucknow, any action was taken on her said application or it was pursued either by her or by her uncle Sh Bharat Singh. The witness has very cleverly tried to explain in her cross examination by Spl. PP for State that in para 2 of the complaint Ex. PW 38/X1 it is mentioned that she gave statement to the police and by this she meant conversation with the police. If it was mere a conversation then it cannot be termed as a recorded statement as the witness in her chief examination nowhere stated that her statement was recorded by the police. On one hand she has claimed that she did not make any statement to the police and on the other hand she claimed copy of the 240 same vide complaint Ex.PW 38/X1 to Director General of Police PHQ Lucknow UP. Hence her statement to the effect that she did not make any such statement to the police is false. It is important to note that her statement Ex.PW38/AB contains the details of her relationship with Nitish and her intention to marry and her knowledge that accused persons had taken away Nitish with them from Diamond Palace as they did not like her dance with Nitish, which is incriminating against her brothers the accused persons and it is only for this reason she must have been pressurised to withdraw from her said statement. No doubt there is no other evidence on record that she danced with Nitish but at the same time this fact cannot be ignored that video cassette of the marriage Ex.PW42/1 is edited from place to 241 place and even accused persons are not appearing anywhere in the cassette. This shows the presence of accused persons in the marriage and dance sequence were purposely edited from the cassette. The voluntary statement made by PW11 Shivani Gaur in the end of her testimony that she had read about a dance in the newspaper that was much thrown about but there was no such dance and there was nothing of that sort, also appears to have been made intentionally to divert the attention of the court from this sequence. In the present case, the investigation of the IO to this effect seems faulty as he ought have seized the complete video reel and photo reels immediately on 17/2/02 itself after the FIR was lodged by PW30 Neelam Katara to conduct the matter fairly. It is further important to note that Bharti is the real 242 sister of accused Vikas Yadav and Shivani is her close friend, so her such statement indicates that it was motivated either by pressure or due to her close relation with the family of accused persons.
lxxix) It is seen that in this complaint Ex PW 38/X1 she has nowhere mentioned that she had no relationship with Nitish or was not in deep love with him. Again to this effect she stated that in her aforesaid complaint Ex.PW 38/X1 para 2 she had mentioned that in her statement to the police she had dispelled all doubts. Her such statement again confirms and corroborates the prosecution's claim that her statement was recorded on 2.3.02. lxxx) Moreover during the cross examination of this witness no suggestion was given either by Sh SK Sharma, the counsel for accused 243 Vishal Yadav or by Sh. Mukesh Kalia, the then counsel for accused Vikas Yadav that no such statement of PW38 Bharti was recorded by him on 2.3.02. Besides, the IO categorically stated that the statement was recorded in the presence of Sh DP Yadav but it is strange to note that Mr DP Yadav was not produced in the witness box by the accused persons to disprove the statement of the IO to this effect. lxxxi) I cannot loose sight of the fact that PW 38 Bharti Yadav is the real sister of accused Vikas Yadav and cousin sister of accused Vishal Yadav and daughter of Sh DP Yadav, a politician, the pressure upon her from her family members to save her brothers by any means was obvious. My such opinion is based on the conduct of the witness subsequent to the incident and during the court proceedings. It 244 is claimed by the prosecution that subsequent to the incident the witness was sent to Faridabad by her parents and this fact she did not deny categorically during her cross examination by Spl. PP for State which also finds support from the testimony of PW 30 Neelam Katara who deposed in her chief examination that while she was at the PS on 17.02.02 from 2.30 to 2.45 pm waiting for some news of her son, she made a phone call to Bharti Yadav from her cell and Bharti told her that she was being taken to Faridabad at her sister's house and nobody was telling her anything and she should look for her son, such time was crucial. In my opinion she was sent away to Faridabad only for the reason to avoid her interaction with the police. This also proves that all her family members were aware of her 245 relationship with Nitish. If the relationship between the two was not intimate and they were only friends, there was no reason to send her away from the house.
lxxxii) It is also admitted fact that thereafter she was sent to England (UK) on the pretext of further studies. But record speaks that she was sent there to keep her away from the court proceedings. She was summoned as a prosecution witness for 29.4.03 but her process was received with the report that she had gone to England and her mother had refused to disclose her address. Hence, the Court intended to send summons for presence of parents of Bharti Yadav for disclosing her address but the counsel for the accused stated that address of Bharti Yadav will be informed to the Court by them. On the 246 next day ie 30.4.03 the address of Ms. Bharti Yadav was furnished by the counsel for the accused persons. Notice was ordered to be issued to Bharti Yadav through High Commission in London.
lxxxiii) On 17.7.03 it is observed in the order sheet that Ms Bharti Yadav failed to appear despite issuance of summons by post as well as through High Commission in UK and she was also not produced in the Court by the accused persons despite giving them specific direction, she being the sister of one of the accused. As such bailable warrants were issued against her through Ministry of Home Affairs for 29.8.03. On that day an application for placing on record the fascimile message sent by Ms Bharti Yadav was moved and the same was kept on record.
247lxxxiv) It is observed in the order sheet dtd. 8.10.03 advocate Sh CK Sharma counsel for the uncle of Bharti Yadav produced a letter wherein the witness had stated that time was too short and she should be given at least two months to appear before the Court, as such dasti process of the witness was ordered to be given to advocate Sh CK Sharma for appearance of Bharti Yadav for 15.11.03. lxxxv) On 15.11.03 advocate Sh CK Sharma stated that Bharti was unable to attend the Court and that she had requested that the case should be fixed for the month of Jan and an application was moved for recording her evidence through Video Conferencing. The application was dismissed on 23.12.03 and direction was issued to the witness to appear before the Court on 27.2.04 .
248lxxxvi) On 27.2.04 advocate Sh CK Sharma again informed the Court that Bharti Singh was unable to appear before the Court because she required permission from the university for her absence from the university for the duration of the evidence. It was observed by my Ld. Predecessor in the order sheet that the witness was delaying the case unnecessarily on the one or the other pretext as sufficient time was granted to her for her appearance and the date was chosen by her counsel. The matter was again adjourned for appearance of Ms Bharti Yadav for 21.4.04 , the date chosen by Sh CK Sharma, appearing for the witness. On that day it was made clear that in case she would not appear on 21.4.04 NBW will be issued against her.
lxxxvii) On 21.4.04 again Ms. Bharti Yadav 249 failed to appear before the Court and bailable warrants as well as notice U/s 350 Cr PC issued against her. On that day Sh. Bharat Singh, maternal uncle of Ms Bharti Yadav was also present before the Court and gave an undertaking to produce her on 24.5.04 , hence instead of warrants summons were ordered to be issued to her through the Sec. Ministry of External Affairs.
lxxxviii) On 24.5.04 again the witness did not appear and it was reported by Sh. Ramesh Kumar US (Legal) Ministry of Home Affair North Block New Delhi that the address of Ms Bharti was found to be incorrect. Sh Bharat Singh, maternal uncle of Ms Bharti Yadav moved an application that Bharti Yadav had received injures on her leg and back due to fall. The application was supported by the 250 medical certificate issued by her Harley Street, Health Care Clinic, London and it was sent for verification. Sh Bharat Singh was directed to furnish the correct address of hospital and of the residence of Ms Bharti Yadav till 27.5.04. lxxxix) On 27.5.04 Mr Bharat Singh furnished the communication address of Ms Bharti Yadav and not her residential address. He was directed to furnish her residential address within 48 hours and he was also directed to produce Ms Bharti Yadav on 21.7.04 under all probabilities.
xc) Sh Bharat Singh did not furnish the address of Bharti Yadav within 48 hours as directed by the Court vide order dtd. 27.5.04 and the address was furnished on 5.6.04.
On 21.7.04 Under Secretary to the Govt. of India was present and had moved an 251 application that UK Home Office had regretted to inform that they could not serve the summons due to insufficient address and that they were trying to locate her new address. On the same day medical certificate was filed by advocate Sh CK Sharma that Ms Bharti Yadav needed six week more rest. As such the Court directed her to appear on 27/9/04 and in case of failure NBW were ordered to be issued for 27/10/04. On 27/9/04 the witness did not appear and an application for stay of NBW was moved . On 7/10/04 Sh Bharat Singh,the uncle of Ms Bharti Yadav furnished a bond before the Court for her appearance and prayed for stay of warrants vide application,which was dismissed on 25/10/04 and it was ordered that NBW issued against her be executed for 25/11/04. However, no report was received on the warrants. Fresh warrants were 252 issued against her for 18/1/05 but the warrants could not be executed for want of time. It is also observed in the order dtd. 27/1/05 when the PP Sh KK Singh informed the Court that he had a talk with Ms Bharti Yadav and she told him that she was not interested to come and depose as a witness in the case, which clearly indicates the intention of the witness to defy the order of the Court.
xci) Finally, on 30/3/05, the prosecution dropped her as a witness, which order was lateron set aside by the Hon'ble High Court of Delhi vide order dtd. 03/10/05, wherein it was observed that Ms Bharti Yadav is an essential and important witness in the prosecution's case. In view of the aforesaid order of the Hon'ble High Court of Delhi, fresh NBW was issued against Ms Bharti Yadav vide order dtd. 7/3/06 253 at her last known residential address 32 Swallow Cort, Carleton Gate, Admiral Walk London, Post Code WTXUK for 27/04/06 and thereafter the time was extended till 11/5/06 for execution of warrants as per the request from Ministry of Home Affairs. On 11/5/06, the report was received from the Ministry of Home Affairs to the effect that as per the UK Central Authority she was not residing at the address given above and her last known address was 6 0, Frederick Road, High Field, Leicester, LE5 , 3HE.'' Thereafter on 22/5/06, fresh NBW were issued against the witness at both the addresses, referred above, for 17/7/06, which was again received back unexecuted .
Xcii) In the meantime efforts were made by the Court to trace out the present whereabouts of the witness with the assistance of 254 her father Sh DP Yadav but he failed to assist the Court in any manner. There is ample material on record against the witness that though she was aware of the proceedings pending before this Court where her presence was required as a witness but she avoided appearance in the Court on one or the other pretext and finally was not even traceable at her last known addresses, leaving no option with the prosecution except to move the application u/s 82 Cr.PC. The efforts of the witness to halt the proceedings or to further delay the proceeding did not come to an end as even when the application u/s 82 Cr. PC was pending for orders, on 22/7/06 a FAX was received from the witness Ms Bharti Yadav for her examination through Video conferencing or on commission which she was already aware that her plea had been rejected by the trial Court and 255 thereafter by the Hon ble High Court of Delhi. It was another effort on the part of the witness to delay the proceedings.
xciii) The record speaks that the Court had always given assurance to the prosecution as well as to the accused Vikas Yadav who is the brother of Ms Bharti Yadav that there will be no harassment to the witness at the hands of the media or otherwise and all arrangements for her safety and security would be made but despite all the efforts of the Court she chose to stay away and delayed the proceedings substantially. Finally, the proclamation U/s 82 Cr PC be issued against her , which was challenged before the Hon'ble High Court by the witness , however with the due indulgence of the Hon'ble High Court the witness agreed to appear before the Court and her statement 256 was recorded on 29.11.2006 and 30.11.2006. xciv) The court record speaks itself that there were frequent adjournments on the part of Ms Bharti Yadav on frivolous ground. Even the correct address of Ms Bharti Yadav was not furnished on record and at one time she spoke to earlier Spl. PP for State Sh. KK Singh and told him she was not interested to come to Court, which shows that either she had no sanctity for law, no respect for judicial system or was under the influence of her family, the chances of latter are more since she is the real sister of accused Vikas Yadav and they would never like to depose against them in support of the prosecution. The witness being the sister of the accused persons was under the influence of the family which is apparent from the record as the 257 incorrect address of the witness was furnished on record by her family only so as to avoid her service and consequential appearance before the Court.
xcv) I also find from the record there was reluctance on the part of Sh Bharat Singh, the maternal uncle of Ms Bharti Yadav in furnishing the correct residential address of the Ms Bharti Yadav and instead he produced on record her communication address, which itself shows that they never wanted that the court should have direct access to the witness. Though she sent a fascimile message to the Court through her material uncle and lateron a FAX reflecting her intention to appear as a witness before the Court , however, her conduct shows that these fascimile message and FAX were sent to the Court to avoid any harsh 258 action against her.
xcvi) The entire court record shows that Ms Bharti Yadav was prevented from appearance before the Court which not only resulted in delay of the proceedings but also caused lots of unpleasantness in the court proceedings and delayed justice. xcvii) Such conduct of the witness also has bearing upon her testimony in the Court where she denied recording of her statement Ex. PW 35/AB by the police but her own complaint Ex. PW 38/X1 proved it on record that she had made statement such to the police on 2.3.02. This shows that the witness was under pressure and after she had made the statement favourable to the prosecution before the police on 2.3.02, she was forced to retract from the statement under family 259 pressure and out of the blue the application Ex.PW 38/X1 was produced on the record by Sh. SC Bhutan, her counsel during her cross examination by Spl PP for State. It is important to note that this application was not brought to the notice of SI Anil Somania PW 35 during his cross examination by either of the defence counsel nor he was suggested that he had not recorded any statement of Ms Bharti Yadav on 2.3.02. The statement Ex. PW 35/AB of Ms Bharti Yadav recorded by the police on 2.3.02 clearly shows that there was love affair between the two and they intended to marry and this fact was also known to her Mami and Bua. Even assuming it otherwise that Bharti Yadav did not make any such statement before the police, there is ample evidence on record to prove the relationship between Bharti Yadav 260 and deceased Nitish Katara. Ms. Bharti Yadav herself has admitted writing of letters and greeting cards Ex.PW 30/1 and 2 and Ex. PW 30/C5 to C 15, Ex.PW30/ C 18 to C 73, Ex.PW 30/ C 75 to C78 and Ex.PW 30/ C 83. These documents are self explanatory that the relationship between the two was not mere friendship but had blossomed into love affair and they intended to marry. These documents also corroborate the statement of PW 30 Mrs Neelam Katara, the mother of Nitish Katara ( deceased) that both Ms. Bharti Yadav and Nitish Katara had love affair and wanted to marry each other. The letters particularly Ex. PW 30/C1 and Ex.PW30/C 4 and the greeting cards particularly the valentine album Ex. PW 30/C 79 speaks of their intimate relationship. It was only for Ms Bharti Yadav 261 to explain as to why she wrote such type of letter Ex. PW 30/C4 that too at 2.30/3 am from Shimla if it was not a love affair between the two. However, no answer has come from her to this effect. Her plight is understandable as on one hand it was her past who was no more alive and on the other hand there were her two brothers behind the bar. She must be under tremendous pressure from her family to save her brothers by any means and thus tried to make very balanced statement before the Court by denying her intimate relationship with the deceased on one hand and by admitting her writings to the deceased reflecting their relationship on the other hand. The pressure upon the witness is apparent from the Court record as after the incident she was sent to Faridabad, which fact she did not 262 deny during her cross examination categorically. Besides, when Mrs. Neelam Katara visited her house she told the mother of Bharti Yadav that Bharti Yadav was being sent to Faridabad and on this she was startled that Mrs. Neelam Katara was having this information and then she told her that Bharti Yadav was not feeling easy: Mann Nahi Lag Raha Tha. So they were sending Bharti Yadav to Faridabad to her sister's house. No suggestion to the contrary was given by the defence in her cross examination. It is also on record that thereafter she was sent to UK on the pretext of further studies. Her conduct that earlier she made a statement before the police on 2.3.02 but lateron she retracted the same before media and moved an application Ex PW 38/X1 to Director General of Police UP 263 seeking copy of her statement dtd. 2.3.02 to say that her statement was interpolated by the police only speaks volumes of pressure upon her. However, at the same time I feel that by her such conduct she did not do justice to the soul of the deceased without whom she had claimed she could not survive.
xcviii) Photographs Ex PW 11/1 to 4 in which Bharti is appearing alongwith Nitish Katara ( deceased) are also admitted by her. She could not admit or deny that photographs Ex.PW 11/2 and Ex. PW 11/4 were clicked in Fatehpuri Sikri and photograph Ex PW 11/1 was clicked at Jim Corbret Park. She testified that she do not remember if these photographs were clicked in Fatehpur Sikri or Jim Corbret park. She did not deny that she never visited Fatehpuri Sikri or Jim Corbret Park alongwith 264 the deceased but simply stated that she did not remember if these were clicked at these places. Her said statement leads to the inference that she had visited the aforesaid places with the deceased but she did not remember if these two photographs were clicked there. xcix) The prosecution has claimed that Bharti Yadav alongwith Nitish Katara, her sister Bhawna Yadav and one Deepak Yadav had gone to Mumbai on 24/08/2000 to celebrate the birthday of Bhawna Yadav. This fact is also not denied by Bharti Yadav during the course of her testimony and is also proved on record through the testimony of PW 30 Smt Neelam Katara who testified that in August 2000 she had gone on a business trip to Bombay and was to return to Delhi on 24.8.00 by Rajdhani Express. Her meeting was delayed so she had 265 to change her plan and decided to travel by Jet Airways. In order to inform her son Nitish Katara about change of her plan she called him on phone and then came to know that he too was in Bombay . He told her that he had come to Bombay at the birthday function of Bhawna . He also told her that he would be going back to Delhi by Jet Airways Flight by which Neelam Katara had to go back. He met her at the airport and pointed out towards his friends namely Bharti Yadav, Bhawna Yadav, Deepak and two others, who were also at the airport. Though this witness was cross examined at length by the counsel for both the accused in this regard. However, they failed to shatter her testimony in any manner to this effect, besides, as referred above, PW 38 Bharti Yadav admitted in her testimony 266 that on 24.8.2000 she had gone to Bombay alongwith a group of friends to celebrate the birthday of her sister Bhawan through Jet Airways and she stated '' May be Nitish was also there . Lateron she admitted the suggestion of Spl PP for State that Bhawna Yadav, Deepak Yadav, R. Yadav and Nitish Katara had all gone to Mumbai and they came back to Delhi on the same evening. It is pertinent to note that out of the common friends of Bharti Yadav namely Bharat Diwakar, Gaurav Gupta, Shivani, Gagan and Pooja etc only Nitish Katara had accompanied her to Mumbai to celebrate the birthday of her sister which proves how close Ms Bharti Yadav was to Nitish Katara.
c) The other important evidence/ circumstance in this regard is the opening of 267 bank account No. 090 65103027025 47 with BNP Paribas Bank, Connaught Place, New Delhi by Ms. Bharti Yadav with the address of Nitish Katara i e 7 Chemsford Road New Delhi. PW 38 Bharti Yadav has admitted in her cross examination by Spl PP for State that she had opened bank account with BNP Paribas Bank, Connaught Place New Delhi but she stated that do not remember the date, month and year when she opened the same. She admitted that therein she had given her residential address as of Nitish Katara but now she do not remember the address which she had given in her bank account. She further stated that she do not remember the address of Nitish Katara at that time . She could not admit or deny that the address of Nitish Katara was 7 Chemsford Club, New Delhi. Perusal of 268 the record shows that she had moved an application Mark PW 30/ Mark A on 01.03.2002 for change of address in her account from 7 Chemsford Road, New Delhi to some other address but she could not admit or deny if she changed her address to B14 Gulmohar Park, New Delhi. She admitted that at that point of time her sister Bhawna had office at B 14 Gulmohar Park, New Delhi. The statement of Ms. Bharti Yadav to the effect that she did not remember if she had given address of Nitish Katara in her bank account or it was 7 Chemsford Road again shows her attitude that she never wanted to speak the truth. It cannot be imagined that she had opened bank account with the address of Nitish Katara and she was too close to him but she failed to remember his address. What is important, is 269 not that she forgot his address but the opening of bank account with his address when she had two addresses at Delhi at B 14 Gulmohar Park and 15 Balwant Rai Lane and another address at Ghaziabad but she chose to give the address of Nitish Katara for opening the bank account. This speaks of nothing else but about her intimacy with Nitish Katara ( deceased).
ci) The prosecution has also produced PW 40 Sh. Shivendra Tiwari, Asstt. Manager, HDFC Bank, Surya Kiran Branch, Connaught Place, who produced the record pertaining to account No. 0031000144111 in the name of Nitish Katara He stated that it was a salary account . He also produced the photocopy of the cheque Np. 239166 dtd 15.9.01 in favour of Bharti Singh which was received from BNP Paribas 270 Bank Barakhamba Road New Delhi for clearance and it was cleared on 18.9.2001. He produced the original computerised print Ex PW 40/A, the photocopy of the cheque Ex.PW 40/B. Prosecution has relied upon the account opening form Ex. PW 38/X2 whereby Bharti Yadav opened her bank account with BNP Paribas Bank and during cross examination she admitted this account opening form which is running into three page and is bearing her photograph at page 3. As per the said record in the account opening form the account was opened with a sum of Rs. 10,000/ by way of cheque No 239166 drawn on HFC Bank Ltd. KG Marg, which pertains to the account No. 0031000144111 of Nitish Katara. cii) The prosecution has also relied upon the statement of PW 39 Nitin katara 271 with regard to the relationship between Bharti Yadav and Nitish Katara who testified that Nitish had told him they were madly in love with each other and wanted to get married. He further stated that Nitish had also told him that said relationship was not approved by her brothers Vishal Yadav and Vikas Yadav and even her father Sh. DP Yadav was not in favour of the aforesaid relationship but she was still hopeful that Sh DP Yadav would approve this relationship in the end. The aforesaid testimony of the witness finds corroboration from the letter Ex PW 30/C4 written by Bharti Yadav from Shimla at mid night wherein she has categorically mentioned that she was in love with him more than the words can express and that she wanted to be with him always in her life. She 272 also mentioned therein that she had never prayed so much for anything in her life as she prayed for him and to be with him and to be in his arms. At the same time she mentioned on page 2 of the letter Sabko happy rakhna hai haina . Then on the last page she has written '' Love you Chimpu, you are my life, my love, cannot live with you, life does not have any meaning without you, kabhi saath matt leave karna, varna survive nai kar paungi... promise karo please... that you will always with me, for me, will never betry or cheat me ... I won't be able to take it ... sab mujhe darate hai samjhate hai but I trust you. Mere trust ko kabhi tootney matt dena."
ciii) During his cross examination PW 39 273 Nitin Katara testified that he did indicate to the police that his brother Nitish Katara was madly in love with each other. He was confronted with his statement Ex.PW 9/DA where it is only mentioned that both were close friends. The argument of the defence counsel is that the statement of PW 39 Nitin Katara before the Court was full of improvements and after thought as in his earlier statement he did not depose about the love affair between the two and deposed so for the fist time in the Court, however I do not agree with the aforesaid contention of the defence counsel since the witness categorically stated that he indicated to the police that both were madly in love with each other and once it was not found recorded in his statement U/s. 161 Cr PC, it was the duty of the defence counsel to question the IO in this 274 regard as to whether PW 39 Nitin Katara had made any such statement to him and if so, why it was not recorded in his statement U /s. 161 Cr PC. Besides, it is pertinent to mention that Nitin Katara himself has given an explanation before the Court that when he made statement to the police at that time his brother was missing and death was not confirmed, as such he was worried and upset, hence he did not mention certain details to the police. It is absolutely natural conduct of the witness as in such circumstances any other normal human being would have behaved in the similar manner. Thus the discrepancy pointed out by the defence counsel is of no consequence, in the circumstances of the present case. Moreover, in the entire cross examination by the counsel for the accused persons not a single suggestion was 275 given to Nitin that he was never informed by the deceased about his love affair with Ms. Bharti Yadav or that Nitish Katara did not disclose to him that their relationship was not approved by her brothers and father. The testimony of this witness not only proves that there was love affair between Nitish katara and Ms. Bharti Yadav but also that this fact was known to both the accused and even their father Sh DP Yadav. Besides, the letter Ex.PW 30/C4 clearly indicates the knowledge of the family of Ms. Bharti Yadav about her affair with the deceased as she has categorically mentioned therein : ''Sab mujhe darate hai , samajhate hai but i trust u mera trust ko Kabhi tootnay matt dena" . civ)It is further important to note that Indian society is a male dominated society and each 276 act particularly of younger sisters is under observation of the elder brothers and it cannot be lost sight of the fact that deceased had accompanied Bharti Yadav to Mumbai for celebration of the birthday of her sister Bhawna Yadav and at that time no other close friends of Bharti other than Nitish Katara accompanied them and it cannot be presumed that her elder brother Vikas Yadav was not aware of this fact that his sister Bhawna Yadav had gone to Mumbai to celebrate her birthday alongwith her fiance Deepak, sister Bharti Yadav and her friend Nitish Katara and one R. Yadav. It also cannot be presumed that accused Vikas Yadav was so unconcerned with the movements of his sisters, particularly on the occasion of the birthday of Bhawna Yadav, though in his statement U/s 313 Cr PC in 277 answer to question No. 215 to this effect he stated that he did not know as he was busy and engrossed at his factory at Panipat at that time.
cv) Similarly the photographs Ex.PW 11/2 & 4 which were found to be clicked at Fatehpuri Sikri and photograph Ex.PW 11/1 which was clicked at Jim Corbret Park proves on record that Bharti Yadav had accompanied the deceased to Fatehpuri Sikri and the Jim Corbret Park, though the details of such visit are not available on record, however it cannot be believed that the male members of her family were not aware of her such outings alongwith the deceased. The conduct of the Bharti Yadav in going out of Ghaziabad alongwith Nitish Katara to a far off place with the deceased cannot be without knowledge of 278 family members, particularly, the male members. One cannot loose sight of the bitter truth that our Indian society is a male dominated society and howsoever educated a family may be with whatever status, still the brothers in the normal course of events keep an eye on the activities of their sisters and this phenomenon cannot be interpreted in a different manner qua the accused persons. It is quite likely that Ms. Bharti Yadav is a strong headed woman/ characteristics of her reflects from her letters and greeting cards sent to the deceased and she might have refused to be under the control of her brothers. The arguments of the defence counsel that both the accused persons were not aware of their relationship or even did not know Nitish Katara is of no consequence. I am of the view that from the statement of PW 279 30 Mrs. Neelam Katara, PW 39 Nitin Katara and from the Bharti's letters , it is proved that Ms. Bharti Yadav and Nitish Katara ( deceased) had love affair and wanted to marry and the accused persons had knowledge of this and were averse to their relationship. cvi) Besides, as per the statement Ex.PW 35/AB dtd. 02.03.2002 the witness Bharti Yadav had categorically mentioned therein that her affair was known to her Bua and Mami and they were to talk to her father for their marriage after the election of Vikas Yadav. cvii) The prosecution has further relied upon the call record of mobile No. 9811283641 belonging to Nitish Katara and mobile No. 9810038469 of Bharti Yadav. During her cross examination she was asked by Spl PP for State that on 16.2.02 she had received 280 any call from Nitish at about 3:42 pm on her cell phone No. 9810038469, however she denied the suggestion and voluntarily sated that she was not possessing any mobile at the time and was not aware of to whom this cell phone number belonged. She stated that she was not aware of that this mobile connection was in the name of her sister Bhawna Yadav and that she was using the said telephone connection. She has gone to the extent that she was not even sure if her sister Bhawna Yadav had any cell phone during those days and even if she had any mobile she did not know its number. It is strange to notice the behaviour of this witness that she was not aware of if her sister was possessing any mobile during those days or the number of the said mobile was 9810038469. It is not the case of the prosecution or even of 281 the accused persons that Bhawna Yadav was friendly with Nitish or used to receive from or make calls from mobile number No. 9810038469 to Nitish Katara. She has even gone to the extent of saying that she did not remember if the landline telephone Numbers 4713790 and 4714101 were installed at her residence at Ghaziabad. However, it has already proved on record vide the testimony of PW 43 SP Singh, Commercial Officer, BSNL, Ghaziabad, UP that these two landline numbers were installed at the address a R 4/16 New Raj Nagar, Ghaziabad, the house of Sh DP Yadav. The call record Ex. PW 21/1 speaks there are about 30 calls received on the mobile phone of Nitish Katara from the landline telephones installed at the residence of Bharti Yadav at Ghaziabad during the period 7/1/2002 282 to 17/2/02. The mobile phone if was not used by Ms Bharti then whether it was Bhawna Yadav who was using this mobile and remained in touch with Nitish Katara, the answer is 'NO' as Bhawna Yadav not stated so during her testimony. It was within the special knowledge of Bhawna and Bharti only as to who was using this mobile phone but for the obvious reason that they are related to the accused persons did not depose the truth before the Court.
cviii) It is further pertinent to mention that PW 25 Bharat Diwakar testified during his chief examination that at that time his mobile No. was 9810154964, mobile No. of Nitish Katara was 9811283641. He further testified that mobile No. 9810038469 was the mobile phone of Bharti Singh.
283cix) He testified that he had reached at 7 Chemsford Road, New Delhi, around 3 am on 17.2.02 and thereafter he received a call from Bharti on his cell phone in the morning. He stated that she made 2 /3 calls to him and she was asking ''Where is Nitish''. He stated that he had received the calls from Bharti after 6/6:30 am and he had told her that there was nothing known about the whereabouts of Nitish and his cell phone was off. He further stated that as per the call record Ex. PW 22/2 he had received call at about 4:06am from Bharti on his mobile which he did not remember as he must have been in sleep. The said call lasted for 21 seconds.
cx) During cross examination of this witness no suggestion by counsel for the accused persons that Bharti Yadav was not 284 possessing mobile phone No. 9810038469 or she did not make any call to Bharat Diwakar in the morning of 17.2.02. Thus from the testimony of Bharat Diwakar it stands proved that though mobile No. 9810038469 was registered in the name of Bhawan Yadav but it was being used by Bharti as her own phone. As such the argument of the defence counsel that the prosecution has failed to prove on record that mobile No. 9810038469 which was in the name of Bhawna Yadav and was never used by Bharti Yadav is of no consequence. cxi) It is further important to note that PW 30 Smt Neelam Katara testified during in chief examination that she took Bharti's cell No. from Bharat and called her twice on that morning ie 17.2.02 around 7/7.30 am from landline of her house. She gave the landline 285 Nos. installed at her house as 3366629 and 3747555. The call record shows that on the mobile No. 9810038469 12 calls were made from the landline numbers installed at the house of Neelam Katara on 17.02.02 and from the mobile of Neelam Katara bearing No. 9810206299 one call at 14:08hour and Bharti made one call at 20:11 hours on 17.02.02 to Neelam Katara. However, no suggestion was given to PW30 Smt Neelam Katara that she did not have any telephonic conversation with Bharti Yadav on 17.2.02. This evidence of PW 30 also proves that mobile No. 9810038469 was in possession of Bharti Yadav. cxii) So far PW 39 Nitin Katara, the brother of deceased Nitish Katara is concerned who as per his testimony was in Mumbai on 16.2.02 and came back to Puna on 17.2.02 when 286 he came to know later in the evening on telephone from some relatives from his house that his brother Nitish Katara was kidnapped on the intervening night of 1617/2/02 by the accused persons / brothers of Bharti Yadav so he immediately rang up Bharti Yadav on her mobile No. 9810038469 from his mobile No. 9822288216. This fact stands corroborated from the call record Ex. PW 22/2 which shows that Nitin had called from his mobile on the mobile No. 9810038469 at 19:43 hours and 19:
44 hours showing cell ID of Bharti 's mobile of Sector 15 Faridabad. He further stated that during summer vacation when he had come to Delhi she had called him on this telephone number so he saved the same. He further stated that during the period 18.2.02 till 20.2.02 she called him on his mobile and and once 287 or twice on landline and at that time he was having two landline connections No. 23747555 and 23366629 at his residence. PW 35 SI Anil Somania testified that he had taken into possession telephone record Ex.PW 21/5 of mobile phone No. 9811297136 which was in the name of Nitin Katara. The call record Ex PW 21/5 shows that Nitin Katara received calls from mobile No. 9810038469 at 11:11 hours and thereafter at 16:42 hours on 18.2.02. Thereafter a call is made from the mobile of Nitin as referred above to the mobile of Bharti at 16:50hours on 18.2.02 itself and thereafter he received a call from the mobile of Bharti at 22:42 hours. This record also finds corroboration from he call record Ex.PW 22/2 of mobile No. 9810038469. Again the record Ex PW 21/5 shows that on the mobile of Nitin Katara a call is 288 received from the mobile used by Bharti at 00:05 hours on 19.2.02 and then at 9: 16 hours a call is shown to have been made from the mobile of Nitin to Bharti Yadav. In all Nitin Katara received four calls on his mobile from the mobile of Bharti Yadav on 19.2.02 and
20./2.02 and he made three calls on her mobile.
cxiii) The cross examination of PW 39 Nitin Katara shows that he was not given any suggestion by the counsel for both the accused that the mobile No. 9810038469 was not used by Bharti Yadav or he did not make any call to or receive any call from Bharti on the aforesaid number or that this phone was in exclusive possession of Bhawan Yadav.
cxiv) PW 42 Bhawna Yadav is the real sister of PW 38 Ms Bharti Yadav and
accused Vikas Yadav. It is this witness in whose 289 name the mobile No. 9810038469 stands registered which as per the prosecution was in possession of Ms Bharti Yadav and was used by her for receiving calls from or making calls to Nitish Katara ( deceased), Smt Neelam Katara, the mother of the deceased, Sh Nitin Katara, brother of the deceased, and Bharat Diwakar, the common friend of Ms Bharti and Nitish Katara ( deceased). She testified that she attended the marriage of Shivani on 16.2.02 alongwith her husband at Ghaziabad. She stated that she had come to Ghaziabad from her matrimonial house 3/ 4 days prior to the marriage of Shivani Gaur. She stated that at that time she was possessing mobile bearing connection No. 9810038469. She stated that this phone was registered in her name at the address R4/32 Ghaziabad UP which belongs to 290 her father. She stated that she might have spoken to Nitish Katara from the mobile No 9810038469 on 14.2.02 but she denied any meeting with Nitish Katara in the area of Connaught Place on 14.2.02. She was specially put a question as follows:
Q: Did you call or receive call from the complainant Neelam Katara on 16 17/2/02 in between 4am to 10.30 pm ?
She replied, Ans: " May be once I called her back on the evening of 17.2.02 ."
She further very cleverly stated that her driver, whose name she did not remember had received the call from Neelam Katara on her phone on that day and in view of that she had called Mrs. Neelam Katara in the evening of
17.2.02 from Faridabad . She stated that she 291 had called her from Faridabad but she did not receive any call on her mobile and also did not make any call from her mobile to Bharat Diwakar on 16/17.2.02 between 4 am to 10:38 pm. cxv) So far the aforesaid testimony of PW42 concerned, it is important to note, as referred above that PW 25 Bharat Diwakar and PW 39 Nitin both testified that mobile No. 9810038469 belonged to Ms Bharti Yadav and there was no cross examination of both these witness in this regard. It appears that Bhawna Yadav's testimony to the effect that mobile No. 9810038460 was being used by her only and not by Bharti Yadav was only to give shelter to Ms Bharti Yadav that she was never in touch with Nitish Katara when he was alive or his mother, brother or friend Bharat Diwakar of the deceased from this mobile in 292 any manner before and after the incident. cxvi) Besides, it is the case of the prosecution that after the incident Neelam Katara made a telephone call to Bharti Yadav from the PS on her cell on 17.2.02 and she told her that she was being taken to Faridabad to her sister's house and nobody was telling her anything and she should look for her son as the time was crucial. The record record of Bharti Yadav Ex.PW 22/2 confirms that a call was made from mobile No. 9810206299 of Neelam Katara at 14:08 hours on 17.2.02 on the mobile No. 9810038469 and even Ms Bharti Yadav in her testimony has not denied the fact that she was not being sent to Faridabad which shows that to cover up the entire episode Bhawna Yadav made a false statement to the effect that she had called once Neelam Katara 293 on the evening of 17.2.02. She has very cleverly stated that the mobile was with the driver and he had received the calls of Neelam Katara. The call record shows that 14 calls were made from the mobile and landline number of Neelam Katara on the mobile No. 9810038469 on 17.2.02. If the mobile phone was never used by Bharti Yadav and always remained in possession of Bhawna Yadav there was no reason for the witnesses to tell lie that they had called Bharti Yadav on the said mobile or vice versa Bharti Yadav had called them from the said mobile. It is further pertinent to mention that this witness has also failed to give the name of the driver in whose custody if at all the said phone remained as but for his detailed particulars no enquiry could be made from him for corroboration of the statement of 294 Bhawna Yadav. The name and address of the driver was only with Bhawna Yadav and she did not give these particulars for the reason that she never wanted to be checked on this account.
cxvii) Besides, it is important to note that PW Bharti Yadav has denied that she was possessing any mobile at any time and Bhawna Yadav has claimed that her mobile bearing No. 9810038469 was only used by her but at the relevant time it was with her driver is also belied by the video cassette Ex. PW 42/1 of the marriage of PW 11 Shivani wherein both Bhawna and Bharti Yadav are seen in possession of mobile phones. While recording the statement of Ms Bhawna Yadav the video cassette was played in the Court and it was seen therein that the witness was going towards 295 Bharti who was sitting next to Lata, their friend and at that time Bhawna was holding a mobile phone which she had kept on the shoulder of Bharti and thereafter Lata had picked up one phone from the ground and handed over to her. The explanation given by the witness in answer to the court question is to the effect that the phone which she was holding in her hand she must have borrowed from someone. She did not disclose the name of the person from whom she had borrowed the said phone and whether she had made any call therefrom and to whom. It is strange to note that her own phone she had left with the driver and she was borrowing the phone from someone else but that too does not know for what purpose she had borrowed the same. Mobile can be used only for one purpose to send 296 massages or make or receive the calls. However, she categorically admitted that she did not make any call to her own phone from any of these two cell phones since her phone was in the custody of her driver. It is further strange to note that as per her statement her driver did not disclose to her if any call from Neelam Katara was received on her cell phone nor he told her how many calls were received on her phone till the evening of 17.02.02. She has failed to explain that if her driver did not inform her about any call received from Neelam Katara on her phone then how she called her back in the evening of 17.2.02 , her such conduct only leads to the inference that since there was a call from mobile No. 9810038469 to the mobile/ landline of Neelam Katara made by Bharti Yadav as deposed by 297 Neelam Katara and proved vide call record Ex. PW 22/2 so therefore to cover up the same she testified that she had called Neelam Katara on the evening of 17.2.02 . The testimony of this witness is further doubtful as she stated that she never asked her driver to call on the landline Nos of her parents house from her mobile on the intervening night of 16/17202 between 2:20am to 2:23am whereas the call record shows that 5 outgoing calls were made from the mobile No. 9810038469 to the landline Nos 4713790 and 4714101 installed at the residence of Sh DP Yadav as proved vide testimony of PW43 Sh. SP Singh, the installation of these telephone numbers at the residence of Sh DP Yadav is not disputed by the accused persons. As per the call record there is another call made from the aforesaid mobile at 4 am 298 on 17.2.02 to the mobile No. 9810154964 of Bharat Diwakar which is also proved from the call record Ex.PW 22/2 and Ex PW 22/3. The call record Ex. PW 22/2 further proved receipt of twelve calls from the landline Nos. of Neelam Katara on the mobile No 9810038469 during 6:17 hours to 11.43 hours besides one call from mobile of Neelam Katara on 17.2.02 and the calls materialised from 37 seconds to 182 seconds.
cxviii) As per the call record Ex PW 22/2 a telephone call was received on the mobile of Bharat Diwakar from the mobile No. 9810038469 at 4:06 hours on 17.2.02 which Bharat Diwakar has categorically deposed was received from Bharti Yadav and is not disputed during cross examination of this witness. Besides, Bharat Diwakar called him from his mobile to Bharti 299 Yadav 7 times on 17.2.02 between 6: 41 hours to 21:37 hours and some of the calls between Bharat Diwakar and Bharti Yadav are for 123 seconds, 192 seconds .
cxix) PW42 Bhawna Yadav has admitted that she had not asked her driver to make any call to Bharat Diwakar from her cell. It is not her case that her driver was known to Bharat Diwakar that he could make a call to him. Then who made call from her mobile to Bharat Diwakar that too at 4:06 hours on 17/2/02 has been answered by Bharat Diwakar vide his testimony that Bharti Yadav had called her. PW 42 is highly educated and is expected to be well aware of the use of mobile but still as per her version she had left it with her driver and thereafter she did not bother to see whose calls were received when the mobile was 300 with her driver.
cxx) As referred above PW 25 Bharat Diwakar categorically stated in his chief examination that mobile No. 9810038469 was the mobile phone number of Bharti Singh and after reached 7 Chemsford Road at 3 am on 17.2.02 he had received call from Bharti on his cell phone in the morning and she made 2 3 calls to him. It is strange that if the aforesaid mobile was in the possession of the driver of Bhawna then how could it be used by Bharti to call Bharat Diwakar. This shows that the mobile phone was with Bharti Yadav and she had made a call to Bharat Diwakar. The testimony of Bharat Diwakar is further corroborated by the video cassette Ex.PW 42/1 which was again played at the time of dictating the judgment and has been viewed again which 301 shows that while both the bride and bride groom were sitting for the phera ceremony Bharti Yadav is seen sitting behind the priest holding two cell phones and after sometime at the same place it is seen that either she is attending or making a phone call as the cell phone is seen in her left hand near her ear. It is the version of PW 11 Shivani Gaur that she went for phera ceremony after 1:30 am. The call record Ex.PW 22/2 of mobile phone No. 9810038469 shows that between 2:19 hours to 2:23 hours there are five outgoing calls made to the landline Nos installed at her residence. The call record finds corroboration the video recording in Ex PW 42/1 when at the same time Bharti Yadav is seen holding mobile phone near her ear. Though PW 42 Bhawna has claimed that her mobile was in the 302 possession of her driver but in my opinion it is not possible that if the phone was left by her with the driver she did not enquire about calls received or made from the phone nor checks the mobile phone herself. The question arises who made five outgoing calls from her mobile at the landline Nos of her parents house between 2:19 hours to 2:23 hours on the night of 16/17.02.02.
cxxi) Moreover PW 25 Bharat Diwakar was not cross examined by the defence counsel with regard to his said testimony which proves on record that the mobile phone No. 9810038469 was being used by Ms Bharti and she had made several calls from this mobile and at the same time had also received several calls from Nitish Katara till 16.2.02 and thereafter from Neelam Katara, Nitin Katara and 303 Bharat Diwkar and also made calls to them. cxxii) It is pertinent to mention that Spl PP for State with the permission of the Court had put certain leading questions to PW 42 Bhawana Yadav with regard to the mobile number possessed by her father Sh DP Yadav, his brother Vikas Yadav, the accused, her husband, her personal phone number, her friend Lata's mobile no., landline nos installed at her parents house and she chose easy answer to say that she did not remember any of the numbers. If she is so short of memory then how could she remember that mobile No. 9810038469 was the number of her mobile in the year 2002 as she could not even remember the landline number of her house. Besides, if she was possessing mobile No. 9810038469 then she must have made at least one call to her husband on 304 his mobile during these four days, when she was in Ghaziabad to attend the marriage of Shivani, however intentionally she failed to disclose the mobile number of her husband so as to conceal the truth from the Court as then it could be checked that there was no call made by her to her husband from the aforesaid number. It is also evident from her evidence that she is a false witness when she claims that she surrendered the aforesaid mobile after one week of the marriage but as per the testimony of PW22 the call record ExPW 22/2 of the mobile No 9810038469 till 31.3.02. cxxiii) Besides, the call record Ex.PW 22/2 further shows that from the period 01/02/02 till 4 pm on 17.2.02 it is not reflecting the cell ID No 661 of Faridabad which shows that during this period the mobile remained in 305 possession of Bharti Yadav and not with Bhawna Yadav who was resident of Faridabad during this period. It is only w.e.f 4:03 pm on 17.2.02 till 19.2.02 at 3:10 pm. cxxiv) In view of her such conduct her testimony seems to be motivated and tilted towards the accused persons , one of whom is her real brother and other is the cousin brother. She is an interested witness being the sister of the accused persons. cxxv) The argument of the defence counsel is that Mami and Bua of Bharti have not been examined by the prosecution, as such the prosecution has failed to prove on record that they were aware of her relationship with the deceased and were planning to talk to Sh DP Yadav, her father about their marriage, after the elections of accused Vikas Yadav. It is 306 further submitted that Bharti Yadav has denied that she had made any such statement to the police. The answer to the aforesaid argument is that Bharti was never expected to support the prosecution case as she always remained under pressure of her family, since the accused Vikas Yadav is her real brother, I am of the view that if Mami and Bua had been cited as prosecution witnesses even they would not have supported the prosecution case for the same reason. As such the prosecution was handicapped to this effect as all the relevant evidence about the knowledge of the accused about Bharti's relation with Nitish Katara was within the family of the accused persons and it was not possible for the prosecution to prove this evidence. Thus the prosecution had no option except to rely upon the circumstantial 307 evidence in this regard in the absence of direct evidence.
cxxvi) The prosecution to this effect has relied upon an authority reported in 2006 IV AD (Crl) (S.C) 193. It is a case U/s 302/498A IPC and it was held by the Hon'ble Apex Court that:
" the law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence, it is capable of leading having regard to the facts and circumstances of the case. '' The aforesaid authority is fully applicable to the facts and of the present case as the knowledge of Bua and Mami about the 308 love affair between the two and their plan to inform Sh DP Yadav for their marriage after the elections of Vikas Yadav was not only difficult but impossible evidence to be led by the prosecution, as they are related to the accused persons and in no manner would have supported the prosecution case particularly in the circumstances of the present case. In these circumstances, the prosecution had no option except to reply upon the circumstantial evidence in this regard in the absence of any direct evidence. To this effect the call record of Nitish Katara Ex.PW 22/1 is an important circumstance against the accused persons as the call record speaks that five calls were made to the mobile of Nitish Katara bearing No. 9811283641 from the landline Nos. 4721001, 4720020 installed at the house of Sh Bharat Singh, the maternal uncle of 309 Bharti Yadav and record also speaks that four calls were received from mobile of Nitish Katara on these two landline Nos. It is not the case either of the prosecution or of the defence that Bharat Singh or his family members were in touch with Nitish Katara. Then who made these calls on the mobile of Nitish Katara and who received calls from his mobile No. on these landline telephones, it was within the special knowledge of either Bharat Singh or his family members. The call record in another way supports the prosecution version that the statement of Bharti Yadav Ex,PW 35/AB, wherein she had mentioned that her Mami and Bua were aware of the relationship is correct. It finds corroboration from the statement of PW 30 Mrs. Neelam Katara who has testified that Nitish Katara had told her that Bharti Yadav 310 was planning to tell her father about their intention to marry and she was waiting for an opportunate time and her brother to go out of the town after the elections as his marriage was fixed for 6th March , she was hopeful that after marriage he goes out and she would be able to convince her father. The statement Ex.PW 35/AB of Bharti Yadav which has also been proved on record to have been made by Bharti to the police also finds mention that her Bua and Mami who were aware of their relationship would speak to Sh DP Yadav about their marriage after the elections of accused Vikas Yadav.
cxxvii)In view of the unrebutted testimony of PW 30 Mrs Neelam Katara that her son Nitish Katara had told her in Dec 2001 above his affair with Bharti Yadav and their plan to 311 marry and that her brothers ie the accused persons were aware of this fact and were averse to their relationship coupled with the testimony of PW 39 Nitin Katara, the brother of the deceased, who also deposed on the same lines but was not cross examined to this effect, the greeting cards and the letters particularly Ex PW 30/Cl and C4 written by Bharti Yadav to Nitish, their intimate photographs Ex. PW 11/1 to 5 clicked at Fatehpuri Sikri and Jim Corbret park, their visit to Mumbai for celebration the birthday of Bhawna Yadav when no other close friend of Bharti accompanied them , her opening bank account with BNP Paribas Bank with the address of Nitish Katara and the call record showing number of telephone calls on the mobile of Nitish Katara from her landline numbers and from the house of Bharat Singh, 312 her maternal uncle, proves beyond reasonable doubt that she had love affair with the deceased and both of them were planning to marry and this fact was known to both the accused persons but they were averse to this relationship.
cxxviii) Even from the conduct of the accused persons the inference can be drawn that they were aware of the relationship between the two as accused Vikas Yadav did not appear in the court on both the days when Bharti Yadav was examined though he was present in lockup. This shows that he had the knowledge of the relationship between the two and had no courage to face her for his misdeed. Besides, it is also on record that the accused persons made all possible efforts to avoid appearance of Bharti Yadav in the court 313 which shows they were apprehensive that in case they would appear before the court, she would admit all the facts relating to her affair with the deceased, her intention to marry him and that this fact was known to the accused persons who were averse to such relationship. Besides, it is important to note that when both the accused attended the marriage of Shivani Gaur where Nitish Katara was also present, they found an appropriate opportunity to execute their plan. All these circumstances conclusively prove that Bharti Yadav and Nitish Katara had love affair and wanted to marry but this was not acceptable to them as they felt this caused them humiliation in the society. Thus, the accused persons had strong motive to abduct and murder the deceased.314
B. Abduction/Last Seen/False Defence
1. The prosecution case is that the deceased Nitish Katara had attended the marriage of Shivani Gaur on the night of 16.2.02 at Diamond Palace from where he was taken out by accused Vishal Yadav while he was having meals alongwith his friends PW 25 Bharat Diwakar and PW26 Gaurav Gupta and thereafter he was seen in the company of 3 /4 boys by the security guards PW19 Jai Prakash Pandey and PW31 Umesh Sharma around 12/12.30 mid night and they all went in a long car in West direction. Thereafter he was seen in Tata Safari in the company of accused Vishal Yadav and Vikas Yadav by two constables namely Inderjeet Singh PW 28 and Satender Singh PW 32 outside Diamond Palace and after that he was last seen in the 315 company of both these accused persons and their co accused Sukhdev Yadav in Tata Safari bearing No.PB 07H 0085 at Hapur Chungi by PW 33 Ajay Kumar / Ajay Katara when his scooter broke down suddenly on the road while he was coming from Ghaziabad to Delhi and the vehicle Tata Safari bearing No. PB 07H 0085, referred above, driven by accused Vikas Yadav with deceased Nitish Katara sitting on the front seat and accused Vishal Yadav and their co accused Sukhdev Yadav sitting on the rear seat was following his scooter and that accused Vikas Yadav told PW 33 Ajay Katara to remove the scooter immediately. Thereafter deceased was never seen alive. The prosecution claims that deceased was abducted from Diamond Palace on the night of 16/2/02 by the accused persons 316 and then he was last seen in the company of accused persons at Hapur Chungi at 12:15 / 12:30 midnight on 16 17/2/02.
2. Sec. 362 Indian Penal Code defines abduction:
''Whoever by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person''.
By the term 'deceitful means' it means that a person is induced to go from a particular place on the pretext which is false and concocted and is not truthful even to the knowledge of the person using deceitful means.
Sec. 364 IPC deals with kidnapping or abduction inorder to murder.
''Whoever kidnaps or abducts any person inorder that such person may be murdered or may be so disposed off as to be put in danger 317 of being murdered, shall be punished with life imprisonment or RI for a term which may extend to 10 years and shall also be liable to pay fine''
3. It is the duty of the prosecution to prove firstly, that there was abduction as per the definition of the term ''abduction'' U/s 362 IPC and then that it was with an intention to murder. The onus is on the prosecution to prove by cogent, reliable, direct or circumstantial evidence that the removal of the person from a particular person was abduction and it was with a view to murder him.
4. The intention of the abductor can be gathered from the circumstances and conduct of the accused persons. The intention can be result of motive or it can be without motive also. To culminate motive in practical 318 aspect prosecution must prove the acts of the accused persons to commit that offence either by direct evidence or by circumstantial evidence.
5. To substantiate its case the prosecution has examined PW 25 Bharat Diwakar, PW 26 Gaurav Gupta, PW 38 Bharti Yadav, PW 42 Bhawna Yadav, PW 30 Neelam Katara , PW 11 Shivani Gaur, PW 33 Ajay Katara . The prosecution has also examined PW 19 Jai Prakash Pandey and PW 31 Umesh Sharma, the security guards posted at the Diamond Palace on the night of 16/17.2.02 and PW 28 Ct Inderjeet Singh and PW 32 Ct. Satender Singh, who both were posted with Chetak 13 and were on duty at T point near Diamond Palace.
TIME ➔ AND PRESENCE OF NITISH KATARA 319 AND ACCUSED PERSONS AT AND OUTSIDE DIAMOND PALACE:
i) The time is of great relevance in the present case ie :
1. At what time the accused persons were present in the Diamond Palace Banquet Hall?
2. At what time they left the Banquet Hall?
3. At what time they were seen outside the Banquet Hall ?
4. At What time they were present at Hapur Chungi?
ii) Similarly it is important to note the time of the presence of Niish Katara, now deceased ie
1. in the Diamond Palace ,
2. in the lawns of Diamond Palace
3. outside the Diamond Palace and 320
4. at Hapur Chungi in the company of the accused persons.
iii) The defence counsels have argued that all the prosecution witnesses except PW 33Ajay Katara were declared hostile and as such no reliance can be placed on their testimony. However, in my opinion, merely for the reason, they were declared hostile their testimony cannot be thrown away. As held in the authority reported in 2006 I AD (Cr. ) SC 177 " Evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him.'' It is further held in the authority 321 reported in 2007 III AD (Cr.) 380 " Only because a witness, for one reason or the other has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. It is permissible for a Court of law to rely upon a part of the testimony of the witness who has been declared hostile.''
iv) Moreover, the maxim of Falsus in uno, falsus in omnibus does not apply to criminal trial and it is the duty of the Court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking an easy course of rejecting the evidence in its entirety 322 merely on the basis of few infirmities.
v) Keeping in view the principle laid down in the above authorities, now let us go through the statement of the prosecution witnesses examined to prove the time and presence of accused persons and Nitish Katara inside and outside the Diamond Palace.
vi) PW 11 is Shivani Gaur who was getting married on 16.2.02 at Diamond Palace Banquet Hall Ghaziabad where from the deceased was allegedly abducted by the accused persons. She testified that she had reached the Diamond Palace at about 9 pm on 16.2.02. Barat had arrived around 10/10.15 pm and varmaala took place around 10.30 pm. After varmaala she and Amit Arora sat on the stage. There was gathering of about 600 to 700 persons. While they were sitting at the stage, 323 her friends, relatives and other persons invited in the marriage came to the stage, wished them and gave compliments and blessings. Video photographs and still photographs were taken. The photograph Ex PW 6/2 was taken at her marriage showing herself in the sitting position alongwith Nitish Katara, Bharat Diwakar and Bharti, who were standing. In the photographs Ex PW 6/3 and 4 she is seen alongwith her husband, her brother's friends Sunit Kumar, accused Vishal Yadav and Vikas Yadav and her brother Rohit . She stated that Vikas Yadav ad Vishal Yadav are the cousin brothers and she knew Vishal Yadav for quite a long time due to friendship with Bharti Yadav. She testified that Bharti Yadav, Nitish Katara, Garuav Gupta and Bharat Diwakar had attended the marriage ceremony apart from many other 324 guests and the accused persons. Nitish Katara was wearing a rust colour kurta and a cream shawl as shown in the photograph Ex. PW 6/2. It is stated that at the time of Satpati from her close friends only Bharti Yadav, Bhawna Yadav and Lata were present and others had left. She stated that on the next day morning 17.2.02 police came to her house alongwith Bharat Diwakar and then she learnt that Nitish Katara had been abducted.
vii) She did not state in her chief examination as to what time her other friends had left and to my mind it was her natural conduct as she being the bride could not have been able to notice the time when a particular relative or friend left the marriage venue, particularly when the marriage was attended by 600 to 700 persons.
325
viii) During cross examination by the defence counsel for accused Vishal Yadav she stated that Satpati started at 1:30 am on 17.2.02. She had taken meals around 12:30/ 1 am and her friends were also taking meals at that time. She stated that she had seen Nitish Katara on one side but did not see him taking meals. She saw him around 12.30/ 1 am.
ix) Regarding accused Vikas Yadav and Vishal Yadav she stated that they had come to the marriage ceremony around 11/11:15 pm and after greeting them went away.
x) She further stated during cross examination by the defence counsel for accused Vikas Yadav that she had seen Nitish Katara around 1:30am when after taking meals they were going for Satpati.
xi) Regarding the arrival of Bharat Diwakar 326 at her marriage ceremony, she stated that he arrived there at 11:30/11:45 pm at her marriage ceremony and after greeting he told her that he had to leave and thereafter she did not see him though she did not talk to him about the reason of his leaving.
xii) In view of the timings given by PW 11 regarding arrival and departure of the accused persons, Nitish Katara, ( deceased) and Bharat Diwakar she was reexamined with the permission of the Court but before that certain court questions were put to her .
xiii) In answer to the Court questions she stated that she and her husband were sitting at the dias from 10:20 / 10:30 pm and left the dias around 12.30 pm. The meals for the barat started around 10/10:30 pm . In another question she replied that she did not know at 327 what time the people started taking meals because the hall where she was sitting was different from the place where meals were being served. She stated that crowd was maximum at about 10.30 pm and there was big crowd in the hall upto 11 pm. People were coming, greeting her and were mixing in the crowd and unless she had seen someone going from the gate particularly she would not know who had left the hall or who had not left the hall. Everyone who had come to the marriage ceremony had taken meals and nobody was allowed to go without meals.
xiv) Regarding accused persons she testified that they had not taken meals as they told her husband that they were in hurry. They told him that they had to go to polling booth.
xv) She was put a specific and important 328 question by the court which is reproduced as follows:
Q: You had lot of friends of college who had attended your marriage ceremony as well as friends of school also, can you tell which of your friend had left the place at what time?
A: I would not know because they came to the stage, got the photographs clicked, had food and went away. Till it was very crowded I do not know who went away at what time. Swati, Pooja, Preeti and Vipin, Amit were my friends who left last at about 12:30 when I was going for dinner. All my other friends had left before 12:30. I do not know before
12.30 which other friends had left before above friends. They were the last people stated by me above because at that time crowd was not much they came to me and said bye. Others I do not know because they had not come to me to say bye nor I kept any record of their leaving."
xvi) She voluntarily stated that when 329 she came from honeymoon she read about Nitish Katara in the newspaper, about a dance that was much thrown about but there was no such dance and there was nothing of that sort. xvii) The testimony of this witness does not inspire any credence, as it is the case of the prosecution that Nitish Katara and Bharat Diwakar had gone to Diamond Palace together to attend the marriage of Shivani Gaur. She has testified that Bharat Diwakar had arrived there at about 11.30/ 11.45 pm she is silent about the time of arrival of Nitish Katara, though there is ample evidence on record which shall be discussed hereafter that both Nitish Katara and Bharat Diwakar had arrived at the marriage place together in a taxi since Bharat Diwakar had come from Bhopal to attend the marriage and was staying at the house of Nitish Katara 330 and taxi driver PW24 Shadi Ram deposed in chief examination that he had dropped them around 10pm. The video cassette Ex.PW 42/1 proves the presence of Nitish Katara at the time of arrival of the barat which as per the testimony of Shivani arrived at 10/10.15 pm. So her testimony to this effect that Bharat Diwakar arrived there at 11.30/ 1.45 pm is false. It is pertinent to mention that it was her own marriage and she must also be possessing the original of the video cassette Ex. PW 42/1 and must have seen several times so it cannot be said that she was not aware of the time of arrival of the barat or who was present at that time. It is also not the case of prosecution or of Shivani Gaur that the Barat had arrived at there 11.30 or 11.45 pm . The testimony of this witness is again found 331 tilted towards the accused persons when she stated that Bharat Diwakar came at 11.30/11.45 pm on 16.2.02 at her marriage ceremony and after greetings he told that he had to leave and thereafter she did not see him, whereas PW25 Bharat Diwakar testified in his chief examination that he alongwith Nitish Katara had reached the marriage place around 10.15 pm which finds corroboration from the video cassette Ex.PW 42/1, wherein Nitish Katara is seen at the time of arrival of the barat and Shivani Gaur has also admitted that the barat came at 10/10.15 pm. Bharat Diwakar also did not say that after wishing Shivani he told her that he had to leave and thereafter he was not seen by Shivani. To the contrary he testified that after wishing Shivani for the marriage he alongwith Nitish Katara and Gaurav Gupta 332 went to the garden where there was an arrangement for food. Bharat Diwakar further testified that while they were taking meals between 11/11.15pm a person came and enquired who was Nitish out of them and Nitish told that person, that he was Nitish, then that person and Nitish went a little away from them and started talking. He was a young male who called Nitish and none of the two i e Bharat Diwakar and Gaurav Gupta met him thereafter. He further testified that at about 12.45 am they tried to contact Nitish on his cell but could not get through. From the testimony of this witness appears that Nitish Katara was nowhere around in the Diamond Palace at about 12.30 /1 am /1.30 am as deposed by Shivani Gaur. It is strange to note that during the court questions Shivani Gaur 333 admitted that she did not know at what time the people started taking meals because the hall where she was sitting was different from the place where meals were being served. This answer leads to the inference that till 12.30 am when she went out of the hall for dinner she could not have seen anybody in the lawns. In answer to the other question put by the Court she admitted that she was not in a position to say who left at what time. She stated that till it was very crowded she did not know who went at what time. She named some of her friends namely Swati, Pooja, Preeti, and Vipin who left at about 12.30 am when she was going for dinner. She stated that all others friends had left before the above named friends. This shows that even Nitish Katara was not there at that time. It further strengthens the court belief 334 that she made a tutored and false statement that she saw Nitish at about 12.30/ 1 am and then again stated 1.30 am to support the defence that between 12.20 am / 12.30 am he could not have been seen in the company of accused persons by Ajay Katara at Hapur Chungi. Besides, the call record shows that the last call received on the mobile No. 9811283641 of Nitish Katara was at 1:11am from mobile No. 9810154964 showing the cell ID of Raj Nagar. The conduct of the witness in making a voluntarily statement before the Court about any sequence of dance relating to marriage function also does not inspire any credence, particularly, when she was not questioned in this regard either by the prosecution or by the defence. Moreover if she was so enthusiastic she should not have kept quiet in this regard 335 till her testimony before the court. xviii) So far PW 38 Bharti Yadav is concerned, she too has admitted the presence of both the accused persons and Nitish Katara ( deceased) in the marriage of Shivani Gaur though she did not support the prosecution case on material particulars and was declared hostile. During cross examination by Spl. PP for State she testified that accused Vikas and Vishal did not have dinner and left in front of her and Shivani's husband asked them for dinner they told that they had to go. She further admitted the suggestion of the prosecution that she never went out of the hall after her brothers had left the same and she had seen them last leaving the place where the couple was sitting between 10.30/11pm, which shows that she could not have seen at what 336 time the accused persons finally left the Diamond Palace Banquet Hall. To this effect she has admitted the suggestion of the prosecution that she cannot say after leaving the hall what time the accused persons left the Diamond Palace and alongwith whom. xix) She did not state in her chief examination or cross examination by Spl. PP for State as to what time Nitish Katara left the marriage place. It is only during the cross examination by advocate Sh SK Sharma, counsel for accused Vishal Yadav she stated that after mid night ie 1/1.30 am after most of the guests had left, she alongwith her friends including Nitish Katara had taken dinner and thereafter she went inside with Shivani for phera ceremony. Her said statement appears to be motivated and tilted towards the accused 337 persons who are her brothers so as to protect them, as if Nitish Katara around 1 am was present in the Diamond Palace alongwith her, he could not have been present with the accused persons in Tata Safari at Hapur Chungi between 12.20/12.30am. This is again apparently a false statement as no other witness has stated that deceased Nitish Katara had taken dinner in the company of Bharti Yadav. She too has tried to show the presence of Nitish Katara in Diamond Palace at 12.30/ 1 am which is a false statement even as per the call record Ex.PW21/1 whereby he had received last call on his mobile at 1:11 am on the night of 16/17.02.02 and cell ID was of Raj Nagar. Since she was the real sister of the accused persons and her conduct has already been observed above, she was a tutored witness and 338 under the influence of her family as earlier she was not permitted to appear before the Court, her correct address was not furnished to the Court and only when coercive method was adopted she appeared before the Court but she did not support the prosecution case. Influence of her family and their pressure is apparent from her statement which has already been discussed above.
xx) So far the prosecution case that during marriage function while Nitish was standing alongwith his friend Bharat Diwakar and Gaurav Gupta, accused Vishal Yadav came there and took out of the marriage hall, she did not deny this fact categorically but claimed that she had no knowledge. Similarly the question put by Spl PP for State regarding the fact that Nitish was taken away by the accused 339 persons and Sukhdev in Tata Safari from the marriage place has not been denied by her specifically but she claimed that she did not know. The important part of the question put by Spl. PP for State was the use of the Tata Safari by the accused persons in the kidnapping/ abduction of the deceased . Bharti Yadav did not state that they had not come to Diamond Palace in Tata Safari nor she stated that they had come there in the Mercedes, the defence which accused persons had taken through the cross examination of PW 42 Bhawna Yadav, their sister for the first time. xxi) I have already observed above that PW38 Bharti Yadav had given statement Ex.PW 35/AB to the police on 2.3.02, wherein it categorically finds mention that on 16.2.02 both the accused persons alongwith Sukhdev 340 Pehalwan, their co accused (facing separate trial) came to the marriage ceremony and at about 1.30 am she came to know that the accused persons alongwith their co accused Sukhdev Pehalwan had taken alongwith them Nitish Katara. The conduct of this witness has already been discussed above in the circumstance motive and it has already been proved on record as discussed above that she had made statement to the police, and now to protect her brother she had concocted the story or was tutored to do so to say that Nitish Katara was in her company at 1/ 1.30 am in the Diamond Palace, whereas as her statement Ex PW 35/AB by 1.30 am she had already come to know that the accused persons had taken away Nitish Katara which caused anxiety to her which is apparent from her call record Ex. PW 22/2 341 that she made calls at her residence several times from her mobile No. 9810038469. xxii) The other important witness in this regard is PW 42 Bhawna Yadav, sister of accused Vikas Yadav and Bharti Yadav and cousin sister of accused Vishal Yadav. This fact is not disputed by the accused persons that she too had attended the marriage of Shivani Gaur at Diamond Palace on the night of 16.2.02. This witness was not cited by the prosecution as a witness and was examined only to prove the call record of mobile No. 9810038469. Accused persons took complete benefit of her examination and introduced certain new facts for the first time, as during her cross examination by the counsel for accused Vishal Yadav she testified that both the accused persons had attended the marriage of Shivani 342 Gaur only for 10 minutes and then had left. She further testified that the accused persons had reached the marriage hall at 10.30/10.45 pm. It is through the cross examination of this witness the defence has tried to prove that this witness was present at the gate of the hall when the accused persons were leaving and she had asked them as to why they were leaving so early, to which his brother accused Vikas Yadav told her that it was already 11 pm and since he had to reach Karnal to attend some function so they were in hurry. Again through the testimony of this witness the defence has introduced the presence of Mercedes that the accused persons had come to the Diamond Palace in black Mercedes and both of them left at 11 pm and that none else was accompanying them, though it is different 343 aspect that she could not tell the number of the Mercedes in which they had come, despite the fact that the Mercedes belonged to his brother accused Vikas Yadav. Again through the examination of this witness the defence has tried to show the presence of Nitish Katara at Diamond Palace at l am. It is seen here that three different statements contradictory to each other have come on record ie PW 38 Bharti Yadav stated that Nitish was with her at 1/1.30 am and had dinner with her, PW42 Bhawna Yadav stated that Nitish was with them at 1 O'clock when she had dinner but Nitish did not have dinner with them and PW 11 Shivani Gaur stated that she had taken meals around 12.30 or 1 am, she saw Nitish Katara also on one side but did not see him taking meals. xxiii) Similarly there are contradictions 344 in the statement of these witnesses regarding arrival and departure of accused persons. xxiv) So far Bharti Yadav is concerned she has testified that accused persons had come to the Diamond Palace and left between 10.30/11pm. Whereas Shivani Gaur has testified that accused Vikas Yadav and Vishal Yadav had come to the marriage ceremony at 11/11.15 pm, PW 42 Bhawna Yadav stated that they had arrived there at about 10.30/10.45 pm and stayed there for 10/15 minutes. So they all have made contradictory statement to each other. xxv) The other important witness regarding the time of presence of Nitish in the Diamond Palace is PW 26 Gaurav Gupta. PW 26 Gaurav Gupta was the common friend of Bharti Yadav, Bharat Diwakar, Shivani Gaur and Nitish Katara, the deceased. He too had 345 attended the marriage of Shivani Gaur on 16.2.02 at Diamond Palace. He testified that he had reached the Banquet Hall at 11.15/11.30 pm and in the marriage hall Nitish, Bharat Diwakar were there and Shivani was there apart from the other guests. He testified that while the marriage reception was being done in the Banquet Hall the food arrangement was there in the adjoining garden. He stated as follows:
" I had gone for taking meals around 12/12:15 pm in the mid night of that day. Bharat Diwakar and Nitish were also with me and we had dinner together."
xxvi) He further testified that he did not recollect for how much time Nitish remained with him after they went for dinner, whether 346 it was 2 min., 5 min., 10 min., 20 min. or 30 min. . He stated that when they were having dinner together and he went to replenish his plate and when he came back Nitish was not there but Bharat Diwakar was there. It is stated that he did not meet Nitish Katara alive again from that point of time when he did not see him on coming back at dinner place after replenishing of his plate. He stated that he may have left the marriage pandal at 12.45/1 am , this itself shows that when Gaurav Gupta left Nitish Katara was not present in the Banquet Hall at 12.45/.1 am as claimed by witnesses Bharti Yadav, Bhawna and Shivani Gaur . Gaurav Gupta in his cross examination by the defence stated that he must have told the police that he took dinner with Nitish and Bharat around 12/12.30 post 347 mid night, if the time had been asked by the police to him. However, his statement Ex. PW 26/1 recorded U/s. 161 Cr PC shows that this fact is not mentioned therein . It is taken note of that in his chief examination he stated that he had gone for dinner 12/12.15 am which shows that he was not sure of the exact time when they had dinner nor in my opinion he was expected to know as nobody consults watch for their every moment particularly in the marriage of their close friend. As such a normal human being in the normal course of nature is only likely to remember the time approximately so it cannot be held from the statement of Gaurav Gupta that he had dinner alongwith Bharat Diwakar and Nitish Katara exactly at 12 O'clock or exactly 12.15 mid night or 12.30 mid night. A reasonable 348 margin has to be given either side. It is quite possible that they had dinner before 12 mid night or even after 12.30 mid night. However, in the present case the observation that the dinner must have been taken by them before 12 mid night seems more plausible in view of the other evidence on record particularly Bharat Diwakar who was with him who stated in his chief examination that they were taking dinner between 11/11.15 pm when a young male persons came to call Nitish. Besides the call record Ex.PW21/1 pertaining to mobile No. 9811283641 belonging to Nitish Katara, the deceased shows that an outgoing call was made from his mobile to mobile No. 9911009998 at 22:20 hours and the cell ID was of 158 Ghaziabad Kavi Nagar which shows this call was made from Diamond Palace. The 349 record further shows that from 22:20 hours till 23:33 hours he made four outgoing calls and received one incoming call and the cell ID was of 158 Ghaziabad Kavi Nagar.
xxvii) The record further shows that at 00:35 hours one incoming call was received on the mobile of the deceased Nitish Katara and the cell ID was of 225 which is of Ghaziabad Raj Nagar.
xxviii) The record also shows that from 00:35 hours to 1:11 hours he received 6 incoming calls on his mobile and the cell ID was 225 Ghaziabad Raj Nagar, which shows that though at 23:33 hours Nitish was present at Kavi Nagar ie Diamond Palace but at 00:35 hours his presence is shown at Raj Nagar, Ghaziabad. Diamond Palace is situated at Kavi Nagar so therefore he could not be present at 350 Diamond Palace at 00:35 hours or thereafter in view of the call record Ex.PW 21/1. The presence of Nitish Katara thus at Hapur Chungi between 23:33 hours and 00:35 hours cannot be denied by the accused persons.
xxix) The other important witness to the prosecution is PW25 Bharat Diwakar who testified that he alongwih Nitish Katara (the deceased) reached the marriage place at about 10.15 pm. After wishing Shivani for the marriage he alongwith Gaurav Gupta and Nitish went to the garden where there was food arrangements and while they were having dinner a person came and enquired, who was Nitish out of them and Nitish told him that he was Nitish . That person and Nitish went a little away from them and started talking. That person was a young male and had come sometime between 351 11/11.15 pm and none of them met him thereafter. He stated that around 12.45 am he and Gaurav Gupta were through from dinner and they tried calling Nitish on his cell phone but could not get through. Bharat Diwakar further stated that Gaurav Gupta did not have any cell so he was to contact Nitish from his cell phone as well as from the cell phone of his friend Yash Tomar. He also testified that Yash Tomar was not in the wedding. The call record Ex.PW 21/1 corroborates the statement of Bharat Diwakar that a call was made from the mobile No. 9810154964 belonging to Bharat Dwakar at 01:11 hours on the mobile of Nitish Katara and as per the testimony of both PW 25 Bharat Diwakar and PW 26 Gaurav Gupta it is proved on record that at that time Gaurav Gupta had 352 made a call from the mobile of Bharat Diwakar to Nitish Katara on his mobile and the talks materialised that Nitish Katara was at IMT and would contact him. It is important to note that IMT is in Raj Nagar and the cell ID of the last call received on the mobile of deceased was also of Raj Nagar.
xxx) The fact that the mobile of Yash Tomar was not with Gaurav Gupta in the marriage hall is also proved from the call record Ex.PW 2l/4, whereby three incoming calls are shown to have been received by Yash Tomar on his mobile No. 9811220691 from the mobile of Bharat Diwakar bearing No. 9810154964 since it is claimed by Bharat Diwakar and Gaurav Gupta that they were together till Gaurav Gupta left the Diamond Place alongwith Yash Tomar.
353xxxi) During cross examination of Bharat Diwakar the testimony of the witness to the effect that they had taken dinner alongwith Nitish Katara at 11/11.15 pm has not been disputed in any manner by the defence. No question in this regard was put to the witness nor any suggestion to the contrary was given. Even no suggestion was given to Bharat Diwakar that Nitish Katara had taken dinner alongwith Bharti at 1 /1:30 am. So the defence of the accused persons that Nitish Katara had dinner alongwith Bharti Yadav at 1.30 am at Diamond Palace has not been substantiated in any manner. To the contrary it is proved through the testimony particularly of Bharat Diwakar that the dinner was taken by Nitish Katara alongwith them at about 11/11.15 pm. Similarly the presence of accused persons 354 around at that time at Diamond Palace is proved from the statement of Shivani Gaur PW 11 who had testified that accused Vikas Yadav and Vishal Yadav had come to the marriage ceremony around 11/11.15 pm and after greeting them they went away. No suggestion was given to the contrary to this witness in defence that the accused persons had not arrived at the marriage hall at 11/11.15 am. As per the statement of Bhawna Yadav they stayed there for 10/15 minutes. If the accused persons arrived at the marriage place at 11/11.15 pm and stayed there for 10/15 minutes they were positively there in the marriage function around 11.30 pm. xxxii) So far PW 25 Bharat Diwakar is concerned he did not support the prosecution case in chief examination with regard to the 355 fact that he came to know during enquiry that the person who had taken Nitish outside Diamond Palace was Vishal Yadav r/o Raj Nagar Ghaziabad. He simply testified that he came to know the name of that person as Vishal. In his statement U/s. 161 Cr PC it is mentioned that while they were taking dinner at 12 O'clock one fair complexioned person came and told Nitish Katara that he had seen him somewhere and what was his name. Nitish told him that his name was Nitish and thereafter they started talking with each other at some distance from Bharat Diwakar and Gaurav Gupta and while so talking that tall fair person took Nitish out of the Diamond Palace . When Nitish did not return and they were waiting for him he enquired from the persons present there about that person and 356 came to know that his name was Vishal Yadav R/o Raj Nagar.
xxxiii) During his examination in the Court the witness admitted that his statement was recorded by the IO, though he claimed it was recorded on 19.2.02 whereas as per the prosecution it was recored on 17.2.02 . The witness admitted that whatever he stated was recorded by the police and was read over to him. As such his statement before the police U/s 161 Cr PC is admitted by the witness. He also admitted that all the facts which he told to the police U/s 161 Cr. PC were important. However, he claimed that he could not identify the person who took away Nitish Katara, due to lapse of time and for the reason he had seen him only 5/6 seconds. Now it is to be seen from his testimony and his conduct during the 357 testimony as to how much support can be claimed by the prosecution from his statement. The influence of the accused persons or to say of Sh DP Yadav who was MP at the relevant time on the witnesses cannot be ignored. Even this witness who is the son of an IPS Officer and had made statement U/s 161 Cr. PC in the presence of his father and claimed that whatever he stated to the police was recorded and was read over to him but still he did not disclose before the Court the exact particulars of the person who came to them while they were taking dinner and took away Nitish alongwith him appeared to be under pressure. He simply gave the name of the person as Vishal and did not disclose before the Court that he was Vishal Yadav r/o Raj Nagar. The cross examination of the IO PW 35 is relevant 358 to this effect as it is he who had recorded the statement of Bharat Diwakar U/s 161 Cr PC but no question was put to him by the defence counsel how instead of only Vishal the name of the person was mentioned as Vishal Yadav R/o Raj Nagar in his statement. xxxiv) Besides, PW 35 claimed that he cannot identify that person due to lapse of time. It cannot be imagined that Nitish Katara was his close friend who was taken away by someone in front of his eyes and since thereafter he was not seen alive, this person says that he cannot identify the abductor. His such testimony is not believable. In the circumstances of the case the imprint of the person is registered in the mind of a person for ever particularly due to his unique description that he was tall and fair which incidentally 359 matches with the accused Vishal Yadav. Besides his testimony during his cross examination by the counsel for accused Vishal Yadav to the effect that in his presence Neelam Katara in the PS Kavi Nagar had told the person writing report, pointing out towards him, that Nitish had gone to Ghaziabad with him has important bearing on his conduct. During court questions he stated that after searching for Nitish Katara he went back to PS Kavi Nagar and by that time Smt Neelam Katara had also reached the PS. He was called for 5 minutes when the report of Neelam Katara was being recorded to repeat the exact event as to how Nitish Katara was got missed and the exact events of the evening as to when he reached and what transpired after that upto the time he reached back Delhi. However, it is noticed that 360 when the witness was put a specific question by the Court as to whether he knows against whom Neelam Katara had expressed her doubt and lodged report in the PS Kavi Nagar, he kept silent for quite long time and then he stated, h e only knows missing report of her son was recorded. His said demeanour itself shows that he was under some pressure or had been won over by the accused persons to not to quote the name of accused Vishal Yadav. He neither gave the correct particulars of the person who took away Nitish out of the Diamond Palace nor the name of the person from whom he came to know that it was Vishal Yadav R/o Rajnagar Ghaziabad nor in the Court he identified the accused Vishal Yadav as the said person. It is noticed that he is MBA qualified and in his presence the 361 complainant had lodged the report with the police about missing of his son who was his close friend and he had been staying with him when he came to Delhi to attend the marriage and remained at Delhi at the house of Nitish Katara till 19.2.02 but he claims, he did not know against whom PW 30 Neelam Katara, the mother of the deceased had lodged report. Particularly, when the report was lodged against the brothers of his friend Bharti Yadav in his presence, his said statement that he did not know against whom the report was lodged is unbelievable and it appears he made statement before the Court under pressure. In answer to court question he admitted that he stayed at the house of Nitish Katara till 19.2.02 and there were several persons in the house including family friends and there was activity 362 all around and general concern for Nitish but still he claims that he did not know against whom the complaint was lodged by PW 30. At the same time in guarded words, he stated " I know the truth. I know what I did all , I was fully concerned."
The aforesaid answer to the court questions shows that the witness was well aware of the truth as to who were the culprits but chose to remain silent for certain unexplained reasons. The presumption is that he was scared of the accused persons to bring the truth on record.
xxxv) It is important to note that Smt Neelam Katara lodged her complaint Ex PW 2/1 with the police mainly on the basis of the information she had received from Bharat Diwakar only, but unfortunately for 363 unexplained reasons he chose to remain quiet. xxxvi) The subsequent conduct of this witness is also relevant as he did not attend the cremation ceremony of his close friend who lost his life after being abducted and visited PW 30 for condolence after two months. However despite the fact PW 25 was declared hostile his entire testimony cannot be thrown away and his testimony is relevant regarding the time when Nitish Katara had dinner with him in Diamond Palace and went missing and the name of person who took him away and his description.
xxxvii) The other two witnesses relied upon by the prosecution are PW 28 Ct Inderjeet Singh and PW32 Ct. Satender Pal Singh. Both these witnesses were posted on Chetak 13. Ct Satender was its driver. As per the prosecution 364 on the intervening night of 16/17.02.02 their duty was at T point Diamond Palace where a marriage was taking place. The prosecution case is that at around 12.15 am accused Vikas Yadav son of Sh DP Yadav reached there in Tata Safari from the side of Diamond Palace. On seeing the police officials he stopped his vehicle and thereafter went to wards Hapur Chungi. The widow panes of the vehicle were open and it was seen that beside Vikas Yadav three more persons were sitting in the vehicle, out of which one person wearing red colour kurta with round face was sitting on the seat adjoining the driver seat, whereas on the rear seat Vishal Yadav and one another person was sitting.
xxxviii) PW28 Ct. Inderjeet Singh deposed about his duty at T point on the patrol car 365 Chetak 13 alongwith two home guards Prem Singh and Anil Kumar besides the driver Ct Satender. This witness initially did not support the prosecution case while he deposed that he had seen the accused persons present in Court only in the court and had not seen them before but in the same breath he stated that he had seen them sitting in the long car and going from there. He stated that there were several cars going on that day from Diamond Palace since there was marriage and they had the instructions to be on duty nearby so that there was no untoward incident or lifting of the cars from the marriage site. He further stated that they were performing their duty while standing on the road and if they doubted any vehicle, car or person they stopped the same and then did the checking. He stated that they 366 had checked the car in which the accused persons were sitting in a casual manner, to see, if there was any arm and ammunition inside the car or there was something objectionable. He stated that it was around 12/12.15 am when he had checked the car of the accused persons and there were only two persons in the car but he could not say who was driving the car out of those two persons. He testified that after 6/7 days of that night he heard that one Nitish Katara was kidnapped from Diamond Palace and was murdered. He denied that his statement was recorded by the police. However, he admitted that he was shown the photograph of Nitish Katara in the PS and was told it is this boy who was kidnapped and murdered. He denied that he had told So Kavi Nagar that he had seen the 367 person in the photograph going in the car of the accused persons on the night of 16/17.2.02 from Diamond Palace. He voluntarily stated that he had told the SO that he had seen him going in a car. Thereafter in answer to a court question he stated that he had seen that person in the photo ie Nitish Katara in a high roof vehicle Safari when he was on duty on that road. He also checked the same and there were three persons in that Safari, two were on the front and one was on the back. The person whose photograph was shown to him was sitting in the front. He stated that he had seen Nitish Katara in that Safari around 12.30 am. This witness was allowed to put leading questions by the SPP for State since he was resiling from his statement U/s 161 Cr. PC. However, despite lengthy cross examination the 368 witness denied the fact that he made any statement to the police U/s 161 CrPC or he stated before the police that he had seen Nitish and accused persons together in the car. He insisted that he had told the SHO that he saw both the accused persons and Nitish in different cars. This witness did not support the prosecution version that Nitish Katara was seen in the company of accused persons outside Diamond Palace. However, his testimony to the effect that he had seen the accused persons outside the Diamond Palace at about 12/12.15am and that he had told the SO Anil Somania that Vikas Yadav on seeing them stopped the vehicle and then went towards Hapur Chungi is not disputed by the accused persons in any manner. Thus the attempt of the defence to prove that the accused persons had left the 369 Diamond Palace around 10.45 pm has failed. At the same time it is important to note that initially this witness wanted to make statement favourable to accused persons as in his chief examination he stated that he had not seen the accused persons before and he had seen them for the first time in the Court, but lateron when a specific question was put to him by the Court that on the night intervening 16 17/02/02 did he see the accused persons coming from Diamond Palace, he admitted to have seen them sitting in long car which shows he wanted to favour the accused persons. At the same time he has also admitted the presence of Nitish Katara outside Diamond Palace around that time in Tata Safari which too has not been disputed by the defence as the witness was not cross examined by any of the accused 370 persons. Even though the presence of Nitish alongwith the accused persons is not admitted by this witness, however, their presence outside the Diamond Palace around the same time and their proceeding towards Hapur Chungi is proved through his testimony.
xxxix) The other witness examined by the prosecution to this effect is PW 32 Ct Satender. He was posted alongwith PW 28 Ct Inderjeet Singh on Chetak 13. He deposed on the lines of PW28 regarding their presence near Banquet Hall. He stated that they positioned their Chetak 13 near the Banquet Hall around 11.15/11.30pm and were at a distance of about 10/15 steps from the Banquet Hall at a turning. He stated that after positioning their van they got down and were stopping the vehicles which were passing from 371 there by giving them signal and were checking the same. He testified that he knew both the accused Vikas and Vishal present in court. He stated that he knew both the accused persons from before 16/2/02 since he had seen them roaming around in the area alongwith their friends about 15 days prior to that and even before that, as they were of the same area. He stated that he had seen them on 16/2/02 also. He further testified that on 16/2/02 when they were checking the vehicle coming from Diamond Palace they stopped the vehicle of accused persons who were in Tata Safari driven by accused Vikas Yadav and there were 23 persons sitting. He stated that he cannot say who was sitting adjoining Vikas Yadav. Regarding accused Vishal Yadav he stated that he was sitting in the rear seat of Tata Safari. 372 It is testified that this vehicle was checked around 12.15/12.30 post midnight when he saw them. At this stage the witness was shown the photograph Ex PW 11/5 of Nitsh Katara and he stated as follows:
" I cannot say whether Nitish Katara was in the vehicle or not, there were 2 /3 persons in the vehicle and his duty was on driver seat.'' xl) He voluntarily stated that since his duty was on the driver seat and he used to listen wireless messages on the set, which is fixed in the vehicle, he was standing near the driver seat of the vehicle and he saw only 2 /3 boys in the vehicle.
xli) During his testimony he was shown the photograph of the deceased Ex. PW 11/5 and of the accused persons Ex PW 6/4 and in 373 this regard he stated that he had told SO Anil Somania that he had seen Vishal and Vikas Yadav as he knew them before but there were 2 /3 persons in Tata Safari and he was not knowing them all. He further stated that he had told SO Anil Somania that Vikas Yadav was wearing black jacket and Vishal was wearing light colour shirt but he had not told about clothes of any other person. xlii) It is strange that he gave the description of the clothes of the accused persons whom he know from before and not of the person sitting next to Vikas Yadav. This witness was also declared hostile by the prosecution since he did not support the prosecution case to the effect that he had seen one boy with round face wearing red colour kurta was sitting on the seat adjoining the 374 driver seat alongwith the accused persons and that there were three persons other then accused Vikas Yadav in the vehicle. During cross examination by Spl PP for State the witness admitted that the widow panes of the vehicle driven by Vikas Yadav were rolled down and in the vehicle there were three more persons apart from Vikas Yadav. He voluntarily stated that this is what he had stated before the Court also. However, he denied that he had told the IO that one boy with round face wearing red colour kurta was sitting adjoining Vikas Yadav on the front seat of the vehicle or that lateron he had learnt that the said boy was kidnapped and murdered by both the accused persons. He was confronted with his statement Ex. PW32/1 U/s. 161 Cr PC to this effect. He admitted that the clothes worn by 375 both the accused persons as shown in the photograph Ex. PW 6/4 are the same which they were wearing when he saw them on the intervening night of 16/170202. xliii) Regarding the registration number of Tata Safari in which both the accused were spotted by him alongwith two other persons, he stated that it was bearing the registration number of Punjab, though he did not note down the number.
xliv) PW32 could not admit or deny that the person shown in the photograph Ex. PW11/5 ie of Nitish Katara was present in the Tata Safari driven by accused Vikas Yadav. xlv) Regarding delay in recording of his statement by the police on 4.3.02 he explained that he learnt about the involvement of the accused persons in this case on 4.3.02 when SO 376 Anil Somania asked him about them after showing him different photographs. He further clarified that he learnt about the accused persons having been named about the kidnapping and murdered of Nitish Katara on 4.3.02 the date when SO Somania had asked him. He denied the suggestion that intentionally he had not identified from the photograph that Nitish Katara was in the Tata Safari.
xlvi) PW32 was cross examined at length by the defence counsels but nothing material could be extracted . He denied the suggestion that he had not made any statement to the IO.
He denied the suggestion that he was tutored to depose in the court that the registration number was of Punjab. During cross examination no question was put to the witness 377 about the presence of the accused persons alongwith two more persons in Tata Safari at 12.15/12.30 mid night nor about the window panes of the vehicle being rolled down nor it was suggested that they had come to Diamond Palace in black Mercedes instead of Tata Safari, nor about the fact that Vikas Yadav was on driver seat and Vishal Yadav was in the rear seat. No doubt this witness has not deposed in clear terms about the presence of deceased Nitish Katara in Tata Safari, at the same time the testimony of this witness corroborates the statement of PW 33 Ajay Katara to the effect that both the accused were travelling in Tata Safari bearing Punjab number, accused Vikas Yadav driving he same, Vishal Yadav sitting at the rear seat and presence of two more persons in the vehicle. PW 32 has 378 categorically stated that there were three persons in Tata Safari besides accused Vikas Yadav who was driving the same and Vishal Yadav was sitting in the rear seat. The contention of the defence counsel is that testimony of this witness does not inspire any credence for the reason that no log book was produced to prove their place of duty near Diamond Palace and for the reason his statement was recorded on 4.3.02 ie after lapse of 15 days of the incident despite the fact he was posted in the same PS Kavi Nagar where the present case was registered and hue and cry notice was also pasted in the PS, the news were there in the media and TV so it cannot be presumed that till 4.3.02 he did not come to know about this incident.
xlvii) However, I find no merits in the 379 aforesaid contention of the defence counsel as the witness has in clear terms stated that he did not know about the incident till 4.3.02 till IO asked him and had shown him the photograph so the testimony of the witness has to be believed to this effect. The mere fact that there was huge publicity of the matter on the TV and media from this itself cannot be presumed that the witness must have seen the news on the TV and read the newspaper, besides, no particular question in this regard was put to the witness during cross examination.
xlviii) Regarding the pasting of poster of missing of Nitish Katara in the PS again the witness was not subjected to any cross examination.
xlix) So far the log book is concerned 380 the defence counsel has argued vehemently that the log book of Chetak 13 was not allowed by the Court to be produced which was an important document to prove the movement of the vehicle. However, this argument has no force as the IO PW 35 SI Anil Somania during his cross examination by the defence counsel had produced the log book dtd. 16.02.02 in respect of vehicle No. UP 14 J 4421, the patrol car. No doubt the witness admitted that there was no time mentioned in the log book about the movements of the vehicle but the witness clarified that there is no such column prescribed in the log book. I have seen the log book entry Ex.PW 35/XY2 and it is not only with regard to vehicle No. UP 14J 4421 that its movements on 16.02.02 and the time has not been given but with regard to the other 381 vehicles also no time is given as to at what time they were on patrolling at a particular place. Besides, no suggestion has been given by the defence counsel to the IO that the log book was fabricated nor it was suggested to PW 28 Ct Inderjeet Singh and PW 32 Ct Satender Singh that they were not present at that time at T point Diamond Palace.
l) The prosecution has also examined two witnesses PW19 Jai Prakash Pandey and PW 31 Umesh Sharma who both were posted as Security Guards at Diamond Palace on 16/2/02 to the effect that they saw one boy wearing red colour kurta, churidaar pajama and white colour shawl who shook hands with some boys standing outside the Diamond Palace and he alongwith those boys sat immediately in the long car / Tata Safari and the vehicle went 382 towards the west side at a fast speed. Next day PW19 Jai Prakash Pandey came to know that one boy namely Nitish was missing from the marriage function but he did not know who had taken him away. PW31 Umesh Sharma came to know after 23 days from newspaper and TV that one boy was missing from Diamond Palace since then and the accused Vikas Yadav and Vishal Yadav and a Pehalwan killed him and burnt the dead body. It is mentioned in his statement U/s 161 Cr.PC that the victim was the same boy who was wearing red kurta and churidaar pajama and had gone in Tata Safari whose name was Nitish Katara and a resident of Delhi. Both these prosecution witnesses did not support the prosecution case and were declared hostile.
li) PW19 Jai Prakash Pandey testified 383 that he was working as Security Guard at Banquet Hall, Diamond Palace and was on night duty on 16/2/02 on account of marriage in the hall. He testified that he cannot identify the guests who had participated in the marriage from both the sides. He was shown the photograph Ex.PW11/5 of the deceased as well as the photographs Ex.PW6/3 and PW6/4 of the accused persons but he testified that he cannot say if these persons were seen by him on the marriage on 16/2/02. He also stated that he did not see any person in any special dress sitting in any car. Despite lengthy cross examination of the witness by Spl. PP for State he denied that he made any such statement to the police that on that day around 12:30am 34 boys sat in a long car and one boy wearing red kurta churidaar pajama with white shawl had 384 sat in that car and that next day he came to know that a boy called Nitish Katara was missing from the marriage party. He was confronted with his statement Ex.PW19/1 before the police where these facts are found recorded, however his conduct is very relevant to appreciate his testimony as witness admitted in the cross examination by Spl. PP for State that he knew that in this case accused Vikas Yadav is son of Sh. DP Yadav and other accused Vishal Yadav is cousin brother of Vikas Yadav, whereas during cross examination by the defence counsel he testified that he had not seen the accused persons nor he knew them.
lii) PW31 Umesh Sharma who also did not support the prosecution case testified that he did not see the person appearing in the photograph Ex.PW11/5 (photo of Nitish Katara) 385 in the parking and that he did not see the accused persons present in court , on that day in the parking. This witness was also cross examined by the prosecution and he denied that after 23 days of the marriage function he came to know that someone had been kidnapped from there. To the contrary he stated that he learnt about this after he received summons from the court. The witness was put a specific court question about his above referred statement that he learnt about the fact that someone had been kidnapped after he received summons from the court. The question is reproduced as follows;
''Court Ques. Is it written on summons that someone was kidnapped and that is how you came to know? Ans. No I did not come to know that someone had 386 been kidnapped, I only came to know that summons had come from Patiala House Courts and I have to appear there.'' liii)It is strange that though he claims that he did not know if any one was kidnapped from Diamond Palace on that day then how he could come to know about this fact from receipt of summons, as correctly asked by my Ld Predecessor that it was not written on his summon that someone was kidnapped. The witness immediately changed his version and stated that he did not come to know that someone had been kidnapped but only came to know that summons had come from Patiala House Courts and he was to appear. His such conduct shows that he must have met someone 387 who informed him to speak like this and then he did not support the prosecution case. His such conduct is supported by his testimony to be discussed hereafter. The natural conduct of the witness would have been to say before the Court he is not aware of the present case.'' He testified that the summons were received by his father and he told him that he had to appear in the court but he did not ask anyone or even his father as to why he was called in the court and about what was his deposition. He stated that earlier also he had come to the court for this case on summons but outside the court he was told that he was late and so he went back and did not enter the court room. In ans to court question he stated that on the last date when he came to the court he gave his summon to a person in black coat. He stated he 388 met Mr. Saxena the then SPP only today ie when his statement was recorded. He further stated that he had met Ghaziabad police in this court and was told to sit outside and he remained sitting outside the court upto 2pm.
liv) The witness was questioned that he had made two statements before the court regarding the last occasion that he came to the court at about 11am and was told by an advocate that he had come late so he went back and his other statement that he came to the court met Ghaziabad police and kept waiting outside upto 2pm. He stated that his both statements were correct as the advocate met him and told him that he should go away as he was late but he came inside the court and thereafter went outside since he was having injury on his foot and Ghaziabad police 389 met him outside and he remained outside the court. Lateron this fact was confirmed by the court from SI JK Gangwar of Ghaziabad police who informed the court that this witness had come on the earlier date and he was told to wait outside and thereafter he was not traceable.
lv) The allegation of the prosecution is that this witness was sent away by some counsel for accused persons as the witness himself has admitted that a person in black coat had told him outside the court that since he had come late so he went back and did not enter the court room. It is submitted that SI JK Gangwar has confirmed the presence of this witness on the earlier date of hearing in the court and he was told to wait outside but he was not traceable and it shows that he was 390 sent away purposely so as to tutor him to be a hostile witness when he appears next time before the court.
lvi) It is seen from the evidence of this witness that at that time the prosecutor was Sh. SK Saxena, and during his testimony he admitted that he had seen him only on that day, the question then arises who was the advocate in black coat who sent him away on the pretext that he was late. It is to be seen who was to be benefited by his not appearing in the court as a witness or by being a hostile witness. The answer is obvious it is the accused persons.
lvii) The testimony of this witness clearly shows that he made contradictory statement in the court itself when in his cross examination by SPP he stated that outside the 391 court room he was told that he had come late so he went back and did not enter the court room whereas in answer to the court question he stated that he met Ghaziabad police in the court and was told to sit outside and remained sitting outside the court upto 2pm and that he came inside the court and thereafter went outside as he was having injury in his foot. In one breath he stated that he did not enter the court room and outside the court room a person in black coat told him he was late so he went away and in another breath he stated that he entered the court, went outside since he had injury in his foot where Ghaziabad police met him and he waited till 2pm. In view of such contradictory statement the explanation by SI JK Gangwar that this witness had come to the court on earlier date and was told to wait 392 outside but thereafter he was not traceable supports the version of the witness that a person in black coat in other words sent him away on the pretext that he was late.
lviii) The witness further made contradictory statement, as in chief examination he stated he knew Vikas Yadav and Vishal Yadav his cousin brother but in cross examination he stated he had not seen them nor he knew them. This only reflects the conduct of the witness that he was under the influence of accused persons but still prosecution cannot claim its benefit for the reasons mentioned below.
lix) The argument of the defence counsel is that the prosecution have declared PW 19 and PW 32 hostile without any reason as both these witnesses had not given the 393 physical description of the boys who had entered in the car alongwith another person wearing red colour kurta , churidaar pajama and white colour shawl nor they mentioned that they could identify those three persons who accompanied this specially dressed person. It is further submitted that the photographs of the person in red colour kurta were shown for the first time to the witnesses when their statements were recorded and that no TIP of the accused persons was conducted for their identification by these witnesses. lx) I find force in the argument of the defence counsel that except the description of the clothes of one person going in a long car or Tata Safari, the description of other 34 boys was not given by them in their statement U/s161 CrPC. As per their statements U/s 161 394 Cr.PC it appears that they were also not shown the photographs of Nitish Katara at the time their statement U/s161 Cr.PC was recorded. It was required of the IO to have shown the photograph of Nitish Katara to both these witnesses when he made enquiries from them and recorded their statement U/s 161 CrPC and lateron after the arrest of the accused persons ought have arranged the TIP proceedings for their identification by these witnesses that these two accused were amongst those boys who sat in the long car / Tata Safari alongwith the person wearing red colour kurta, white pajama and white shawl.
lxi) SI Anil Somania has admitted in his cross examination that he did not have the photograph of Nitish Katara which could be shown to PW 19 Jai Prakash Pandey and that 395 he had recorded the statement of Jai Prakash Pandey on 17/2/02 and thereafter he did not show the photo of Nitish to Jai Prakash Pandey till today and did not record his supplementary statement. He also did not call Jai Prakash Pandey to participate in TIP of Vishal and Vikas and he did not make any other effort to conduct TIP of both the accused at any stage till the filing of challan from the witness. This is a lapse on the part of the prosecution that though these two witnesses were examined to establish the fact that Nitish Katara had accompanied the accused persons in the car / Tata Safari from Diamond Palace but neither the photograph of Nitish Katara was shown to PW 19 Jai Prakash Pandey whose statement was recorded on 17/2/02 nor any TIP of the accused persons was arranged for their 396 identification by both PW19 Jai Prakash Pandey and PW 31 Umesh Kumar. As such in my opinion the testimony of these two witnesses in no manner is helpful to the prosecution. lxii) The defence counsel has further submitted that there is no evidence on record that the person who came to call Nitish while he was taking dinner was Vishal Yadav, the accused. It is submitted that there was gathering of 600/ 700 persons and none of those persons has been cited or examined as a witness to prove that the said person was Vishal Yadav, the accused. It is submitted that Bharat Diwakar did not know the person who had come to call Nitish Katara and as per his testimony after Nitish could not be contacted on his mobile, he started enquiring in the Diamond Palace that whether the person 397 wearing red kurta was seen by somebody and then he was told that he was talking with one person namely Vishal Yadav R/o Rajnagar. . It is submitted that no such person has been examined by the prosecution who had informed the name of that person as Vishal Yadav r/o Rajnagar to Bharat Diwakar. It is also submitted that even assuming that the name of the person who took Nitish while he was taking dinner, was Vishal it cannot be presumed that he was accused Vishal Yadav son of Sh Kamal Raj Yadav. The contention of the defence counsel in my opinion would have been more appropriate in the circumstances if the prosecution had not produced any evidence with regard to the presence of the accused persons in the Diamond Palace and thereafter outside the Diamond Palace and 398 again at Hapur Chungi in the company of the deceased. In my opinion it cannot be a co incident that accused Vishal Yadav was present in the marriage function and someone with the name of Vishal came and took away Nitish Katara while talking to him in the presence of Bharat Diwakar and thereafter accused Vishal Yadav in the company of accused Vikas Yadav and two more persons is seen in Tata Safari bearing registration number of Punjab by two constables at T point near Diamond Palace and again at Hapur Chungi by PW 33 Ajay Katara. Though PW 28 Ct. Inderjeet Singh has tried to mislead the Court by making a false statement to the effect that he had seen accused Vikas Yadav and Vishal Yadav in a long car which after being checked went towards Hapur Chungi and that he had seen 399 deceased Nitish Katara in the Tata Safari alongwith two other persons and he was sitting in the front, this doubt has been cleared vide the testimony of PW 32 Ct Satender Singh who stated that accused Vikas Yadav came from the side of Diamond Palace in Tata Safari alongwith accused Vishal Yadav sitting on the rear seat and two more persons in the car, with window panes rolled down.
lxiii) Moreover PW 32 Ct. Satender Pal Singh has not denied the presence of Nitish Katara in the Tata Safari when he was shown his photograph Ex PW 11/5. He only stated that he cannot say if he was present in the car. lxiv) It is also argued by the defence counsel that no sane person would commit an offence of abduction in the presence of large gathering except where the vengeance is so 400 strong. The question is asked by the defence counsel as to why a person would kill another at one place and dump the dead body at another place. In my opinion the answer of the same can be given only by the perpetrator of the crime as this fact is within his special knowledge. So far the vengeance in the present case is concerned, it was definitely strong as the relations between Bharti and Nitish Katara were not acceptable to the accused persons. lxv) The defence counsel has further argued that in the present case no witness from the gathering of 600700 persons attending the marriage of Shivani Gaur has been examined as a witness to the abduction of deceased by accused Vishal Yadav and the only witness examined by the prosecution ie PW25 Bharat Diwakar did not speak of any force used by the 401 person who took away the deceased from the place where he was taking dinner with PW25. In my opinion the aforesaid argument has no force. The definition of the term ''abduction'' is clear and unambiguous as per Sec. 362 IPC. To attract the provisions of Sec. 362 IPC the following ingredients are necessary to be proved by the prosecution:
1) that a person was compelled by force to go from any place or
2) a person was induced to go from a place by deceitful means.
lxvi) The present case falls within the second category as it is not the case of prosecution that any force was exercised by accused Vishal Yadav or even accused Vikas Yadav while making the deceased leave Diamond Palace and as such the argument of 402 the defence counsel that none from 600700 persons was examined as a witness to the abduction, has no substance as the conduct of accused Vishal Yadav while abducting the deceased from Diamond Palace was not such which could draw the attention of the persons attending the marriage but on the contrary he induced the deceased to accompany him from Diamond Palace by using deceitful means ie by coming to the deceased while he was taking dinner alongwith Bharat Diwakar and Gaurav Gupta and then enquired about Nitish and when he told him that he was Nitish, he took him away and started talking and thereafter Nitish was never seen alive. The deceitful means were within the knowledge of accused Vishal Yadav and in terms of Sec. 106 of the Indian Evidence Act the prosecution could not 403 have led any evidence to this effect. If the intention of Vishal Yadav in removing the deceased out of Diamond Palace was not to abduct him even that was also within his special knowledge and once the prosecution had discharged the initial burden of establishing prima facie the guilt of accused beyond all reasonable doubts, the onus then shifted upon the accused to disprove the same. lxvii) Though PW19 and PW 31 did not support the prosecution case but in my opinion through the testimony of PW 11, PW 25, PW 26 , PW 38, PW 39 the prosecution has proved the presence of Nitish Katara and the accused persons in the Diamond Palace on the night of 16/17.02.02 at 11.45 pm./ 12 am. The presence of both the accused persons and Nitish Katara outside Diamond Palace is also proved vide the 404 testimony of PW 28 and PW 32, around 12:15/ 12:30am presence of accused persons in Tata Safari bearing registration No. of Punjab is also proved Vide testimony of PW 32. It is also proved on record as per the testimony of PW 25 Bharat Diwakar that Nitish Katara was taken out of Diamond Palace by a person namely Vishal, whose description given by him in his statement U/s 161 Cr PC ( which statement is admitted by him) matched with that of accused Vishal Yadav and even in his said statement the name of the said person is mentioned as Vishal Yadav R/o Rajnagar, thereafter his presence outside the Diamond Palace in the company of accused Vikas and that too in Tata Safari bearing registration No. of Punjab as deposed by PW 32 and the presence of Nitish, as per PW 28 , in Tata 405 Safari is definitely a strong circumstance against the accused persons that it is only they who abducted the deceased. Besides, as per PW28 accused Vikas Yadav drove away his vehicle towards Hapur Chungi. The claim of the prosecution that the deceased was abducted from Diamond Palace also finds support from the call record of mobile No. 9810038469 which has already been proved on record that it was being used by Bharti Yadav. The record Ex.PW22/2 shows that she made a to Bharat Diwakar around 4am on 17/2/02 and this fact is admitted by PW Bharat Diwakar in his statement and he has also categorically stated that Bharti had asked him as to where was Nitish and thereafter she received about 13 calls from Neelam Katara from her mobile as well as her landline on 17/2/02. Neelam Katara has 406 categorically stated in her chief examination that she had called Bharti Yadav from her landline number around 7 / 7:30am ie on 17/2/02 and she appeared to be upset. When Neelam Katara told her that Nitish had not come back, she told Neelam Katara that she was also trying to contact him on his cell phone but was not able to contact except once.
Thereafter Bharti asked her if Bharat and Gaurav had not told her that Nitish had been taken away by her brothers. The said testimony of Neelam Katara has not been disputed in any manner by accused persons during her cross examination. From her said statement it is proved on record that Bharti Yadav was aware of the abduction of the deceased from Diamond Palace and it is an additional link in the chain of the circumstances against the accused 407 persons.
➔ LAST SEEN i) Now let us see what evidence has
been produced by prosecution that deceased was last seen in the company of accused persons.
ii) The prosecution has relied upon the following authorities in support of the evidence produced regarding the deceased last seen in the company of accused persons:
1. (2005) 3 Supreme Court Cases 114 State of UP vs Satish whereby it was held that:
e last seen theory comes into ''th play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than 408 the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a log gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused ad the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.
In this case there is positive evidence that the deceased and the accused were seen together by witnesses PW3 and 5, in addition to the evidence of PW2. There was no suggestions to either PW3 or PW5 that in fact they had not seen the accused and the deceased together. No question was even asked 409 about that aspect in cross examination. On the contrary, an irrelevant suggestion was given that though the witness had seen them together, the witness had not asked the accused as to why he was walking while carrying the deceased on the bicycle. That being so, the High Court could not have come to the conclusion that there was no credible evidence of the accused and the deceased being seen together by PWs 3 & 5.
It was held that one significant factor when seems to have been missed by the High Court is that there was no suggestion to either PW3 or PW5 that in fact they had not seen the accused and the deceased together.''
2. 2006(2) CC Cases (SC)37 Deepak Chandrakant Patil Vs State of Maharashtra whereby it was held:410
''No justification for interference with order of convictionDeceased last seen by two witnesses in the company of the appellant - No evidence to show that he actually assaulted the deceased - No explanation offered by accused whether the accused and deceased parted company thereafter - Appellant knew about the dead body of deceased lying in garden behind the house of A1 Held:
Both Trial Court and High Court, rightly appreciated evidence on record and circumstances proved against appellant conclusively proved his guilt No justification for interference with order of conviction and sentence imposed against appellant Appeal dismissed.''
3. 2007 IV AD (Cr) (DHC) 109 Dharam 411 Raj @ Monu Vs State whereby it was held that :
''t estimony of PW2 who last saw deceased and accused / appellant together has remained unshaken in cross examination. Apart from PW2 Wali Mohd whose evidence is convincing and who has no motive to wrongly frame the appellant, there is clear evidence of PW11 Uttam Kumar who is a natural and neutral witness on the spot as he was a social worker in an organization namely Kasturba Gram Kusta Ashram, Leprosy Colony, Tahirpur. He had no enmity with the appellant so as to wrongly implicate him. ''
4. 2002(8) Supreme 1 Supreme Court of India Sahadevan @ Sagadevan Vs State it was held that :
'' it was obligatory on the appellants to satisfy the court as to how 412 and where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company.'' The defence counsels have relied upon the authority on this point reported in :
2007 (2) JCC 1249 whereby it was held by the Hon'ble Apex Court that :
''t he evidence of last seen by itself apart from not having been proved cannot be of much significance. It may provide for a link in the chain but unless the time gap between the deceased of having been last seen in the company of accused persons and the murder is 413 proximate, it is difficult to prove the guilt of accused only on that basis''.
iii) PW 33 Ajay Kumar / Ajay Katara is the star witness of the prosecution since he was the last person who had allegedly seen Nitish Katara alive in the company of the accused persons. He testified that on 16.2.02 he had visited Subhash Chand, an employee of UP police and native of his village at Ghaziabad . It is stated that during those days the witness was residing in Delhi. He had gone from Delhi to Ghaziabad on his scooter. After meeting Subhash he started at about 12:10 post mid night from Ghaziabad on his scooter. While he was coming back on his scooter went out of order and stopped at the crossing of Hapur Chungi, from his left side from behind a Tata Safari vehicle 414 came and his scooter had just stopped. The person driving the Tata Safari was accused Vikas Yadav present in Court who in a very uncivilised manner told him to remove the scooter from the road. He testified that he knew accused Vikas Yadav from before and when accused Vikas Yadav spoke to him in uncivilised manner he went to his vehicle Tata Safari. In answer to specific question by Spl PP for State as to how many persons were there in the vehicle, he testified he saw four persons in Tata Safari and out of four he knew three of them before. One was Vikas Yadav son of Sh DP Yadav, Vishal Yadav son of Sh Kamal Nath Yadav and third was a stout Pehalwan namely Sukhdev. He identified both the accused Vishal Yadav and Vikas Yadav in the court correctly. He further stated that the fourth person was not known to him and he was 415 wearing red kurta and a shawl. Lateron he saw his photograph on TV and learnt that he was deceased. The witness was shown the photograph Ex PW 11/5 by the Spl PP for State and he testified that he was the fourth person in Tata Safari and was wearing same cloths. He further stated that this person was sitting on the front seat adjoining the driver seat. Accused Vishal Yadav was sitting behind accused Vikas Yadav who was on the driver seat and Sukhdev Pehalwan was sitting behind the deceased person. He further stated that the time when accused Vikas Yadav had told him to remove the scooter was between 12.20/12.30 am in the night of 16/170202. A specific question was put to the witness by the Spl PP for State to the effect whether there was no sufficient passage available for passing of the vehicle overtaking his scooter 416 which is reproduced as follows: Q: You were told to remove the scooter, was there not sufficient road / passage available for passing of the vehicle overtaking your scooter ? He answered in the following manner: A: The place where my scooter had stopped was in the middle of road and on the side of it, was a pole, so that a vehicle could not pass from there.
iv) Regarding the question put by Spl PP for State as to what was the source of light at that place, he stated that there was a mercury light fitted on the road on the pole.
v) He further stated that he noted down the number of the vehicle Tata Safari driven by accused Vikas Yadav and its number was PB 07H 0085. Thereafter he removed his scooter from the road and brought it on one 417 side of the road and vehicle of the accused persons passed from there. Then he opened his scooter and found there was dust / foreign material in the plug. He cleaned the plug of the scooter and as a result his scooter started and he went away.
vi) Regarding the colour of window panes of the Tata Safari, he testified that the glasses were rolled out so he could not see if they had any colour.
vii) During his chief examination Spl PP for State specifically asked him as to when he came to know about involvement of accused Vikas Yadav and Vishal Yadav in this case, to which he stated that he learnt it on 01.3.2002.
After that he went to the PS on 2.3.02 but IO of the case did not meet him. He again went to PS Kavi Nagar on 12.3.02 but IO did not meet him 418 as he was not available. On 18.3.02 he again went to the PS and IO met him on that day and he made statement to the IO about the fact seen by him.
viii) During chief examination Spl PP for State asked the witness if he could identify the Tata Safari but several objections were raised by the defence counsels to his identifying the Tata Safari on the ground that :
1. the witness had not stated the vehicle was involved in any crime.
2. The witness was not witnessed to the recovery of the vehicle.
3. The witness had not stated while giving the registration No of the vehicle that he would be able to identify the vehicle.
ix) The objection was left open by my Ld predecessor to be decided at the time of 419 final arguments. I find no substance in these objections raised by the defence counsel at the time of recording of chief examination of the witness to the effect referred above for the reasons that the prosecution case is that the deceased was abducted and removed from Diamond Palace in Tata Safari and they were seen in the said vehicle alongwith deceased Nitish by Ct Inderjeet Singh and Ct. Satender Singh at T point near Diamond Palace, so it was necessary for the prosecution to put the question to the witness as to whether he could identify the Tata Safari in which he had seen the deceased lastly in the company of the accused persons.
x) The witness then had gone down stairs alongwith the Naib Court and representative of the accused persons to look at Tata Safari seized by the police. Thereafter he returned to 420 the Court and testified that it was the same vehicle which was seen by him on the night of 16/17.2.02 which was driven by accused Vikas Yadav on which he had also seen other persons about which he had already stated.
xi) During cross examination the witness was confronted with his previous statement Ex. PW 33/DA where it was not mentioned that Tata Safari came from behind from his left side. The word l eft was not found recorded in his statement. It was also not found recorded in the statement Ex PW 33/DA that accused Vikas Yadav had talked to him in uncivilised manner or thereafter he had gone to Tata Safari. He was further confronted with his previous statement to the effect that since his scooter had stopped in the middle of the road there was no sufficient passage for passing of the 421 vehicle as there was a pole on one side and that there was mercury light at the spot or that he had learnt about the involvement of the accused persons in this case on 1.3.02. The witness clarified that he had told all these facts to the IO. He was further confronted with his previous statement to the effect that he had stated to the IO that he had come to the PS twice before 18.3.02 , whereas in his statement instead of twice it is recorded he came several time at the PS. He clarified that IO did not ask him the dates as to when he visited the PS so he had no occasion to tell the dates. The witness was categorically questioned as to where he was residing in Delhi at that time to which he answered that he was resident of Braham Puri H No. D50/1, Gali No. 10, Shahdara, Delhi where he lived in rented accommodation from Sept 2001 to May 2001. 422 He also gave the name of his landlord Harish Kumar. He further stated that he was a frequent to Ghaziabad as several persons knew him and he was in the profession of preparing horoscopes and selling gems so he keep visiting people. He stated that after Vikas Yadav had told him in a very loud tone to remove the scooter, he instead of removing the scooter first went to him He admitted that except telling him to remove the scooter Vikas Yadav had not told him anything . After going near Tata Safari he came back and removed the scooter and the entire episode hardly took 2/3 minutes. He categorically and with great clarity stated that the place where his scooter had broken down not a single vehicle could have passed without his removing his scooter. The total width of the road where his scooter broke down may be about 15 ft. Further 423 when his scooter broke down just in the middle of the road, it was in a slanting position due to which it was causing obstruction to the other vehicles. He was questioned about the surroundings of the place where his scooter broke down and he testified that the place where his scooter broke down is Hapur Chungi itself, there is a round about and light was there and also that he could draw the siteplan of the said place. He further clarified that he had just reached on the round about and the road leading from round about to Delhi when the vehicle of the accused persons came from the road coming from Diamond Palace just behind him. He further stated that he had crossed the round about and landed on the road leading to Delhi when his scooter broke down. He gave the description of the road where his scooter broke down that there 424 is a divider in between the road . He admitted during cross examination that there was kachha path between the pucca road and PCO and he voluntarily stated that due to this only Tata Safari could not pass from him when his scooter broke down and the Tata Safari would have to pass from the kachha path. He admitted that the headlight of the Tata Safari was on when it stopped near his scooter.
xii) He further sated that he read Hindi newspaper regularly. Between 18th Feb to 28th Feb he read newspaper once or twice. Regarding the question whether he used to watch TV he sated that who does not watch TV in modern times. During cross examination he admitted that the media was giving news about murder of Nitish Katara between 18th and 28th Feb and accused persons were suspected as the 425 murderers . He stated that he had informed the IO that in the media ie TV and newspapers the photo of Nitish, the deceased who was murdered being shown repeatedly and he used to read the news about his murder. He learnt on 28.2.02 that Mrs Neelam Katara was the mother of the deceased and was resident of Delhi but he did not contact Neelam Katara and any of his family members to give information as to what he had seen on the night of 16/17.2.02. He voluntarily stated that whatever he knew he told the police. The witness was further questioned about the visits to the PS on 2nd March 2002, 12th March 2002 and 18th March 2002 and about the vehicle Tata Safari standing inside the PS as to whether it was seen by him or was shown by the IO, SI Anil Somania.
xiii) The defence counsel tried to 426 extract from the cross examination of the witness that he was related to the family of the deceased the witness no doubt admitted that his full name is Ajay Kumar Katara but he stated that he do not use his surname. He admitted that his surname is Katara. His grandfather's name is Sugat Ram Katara. He voluntarily stated that surname Katara was being used by his grandfather and thereafter he never used it. He stated that the address of his native village is village Bamroli PS Dhoki District Agra. He denied the suggestion that his full address is house No. 433 Nagla Tal Village Bamroli Katara PS Dhoki, District Agra. He denied that he has any relation with the family of the deceased or the family of Nishit Katara ( father of the deceased) at any point of time lived in village Bamroli PS Dhoki. He gave the names of his 427 parents as Sh.Manmohan Singh and Smt. Pushadevi, the names of his brothers as Vijay Kumar and Dev Dutt and the name of his wife is Rita Katara.
xiv) No evidence in defence was led by the accused persons to prove that Ajay Katara was making a false statement and he being resident of H.No. 433 Nagla Tal village Bamroli Katara PS Dhoki District Agra, was related to the family of the deceased.
xv) The witness gave the explanation as to why he noted the number of Tata Safari. The reason given is that accused had talked to him in uncivilised manner and humiliated him and he noted down the number with the intention to report the matter but looking at the fact that he was son of MP he dropped the idea. He stated that he noted the number of the 428 vehicle on the slip on the basis of which he gave the number to SO Anil Somani and thereafter he torn it.
xvi) He also gave the explanation as to why he went to the PS on 2.3.02. He stated it was being ascertained by him whether accused persons were involved or not by the police after the identification was established, he thought that he must help the justice and then he went to PS on 2.3.02.
xvii) The witness was cross examined with regard to Subhash Chand to whom he had gone to meet at Ghaziabad on 16/17.2.02 and was returning from his house when he had an encounter with the accused persons in the company of deceased and co accused Sukhdev Pehalwan. The witness categorically stated that Subhash Chand was in UP Police and was living 429 in police quarters in the Campus/ Ahata of Prantiya Suraksha Bal. He denied the suggestion that at the gate of the Campus a register was maintained and for entering the Campus entry was to be made in the said register. During cross examination the witness also deposed about the terror of Mr DP Yadav, the then MP in the area of Ghaziabad . He admitted that during his stay in Delhi either Mr DP Yadav or any of his person did not harass or did anything to him. He also stated that he was neither friendly nor enmical nor on visiting terms with the accused persons.
xviii) The witness also deposed about danger to his life of being a witness against the sons of MP, who were involved in the present case and in this regard he had told the police Kavi Nagar to escort him to the court 430 safely and had also met IG Zone Meerut and told him about danger to his life and that he was provided security.
xix) He categorically denied the suggestion of the defence that he became witness in the present case due to his close relations with the deceased family and due to his belonging to the same community as that of the deceased. xx) He denied the suggestion that he was not at Hapur Chungi on 16.2.02 as stated by him. He further denied that he had visited PS Kavi Nagar with Mrs Neelam Katara on several occasions. It is also denied that he made false statement under tutoring of the IO or he deliberately did not disclose the names of his neighbourers at Delhi rented house. He stated that he knew several neighbourers He further denied that there was enough space by the side 431 of the scooter which had broke down, for vehicles to pass. He further denied that if a scooter is parked on the road where it had broken down , in any condition vehicles can still pass. He also denied that he was never resident of Delhi at any time or he never visited the house of Subhash Chand.
xxi) The argument of the defence counsel is that this witness is a planted witness and that it reflects from his own conduct as his statement was recorded by the police on 18.3.02 whereas he had allegedly seen Nitish Katara (now deceased) lastly in the company of accused Vikas Yadav and Vishal Yadav and their co accused Sukhdev Pehalwan on the intervening night of 16/17.2.02.
xxii) It is submitted that no reasonable explanation has been given by the 432 witness as to why he did not approach the police at the earliest. It is further submitted that the witness has made improvements from his statement recorded U/s 161 Cr PC which are material and thus no reliance can be placed on his testimony. It is further submitted that prosecution has failed to produce any evidence on record that the witness had visited the house of any Subhash Chand, an employee of UP police at Ghaziabad and was returning from his house to Delhi at about 12.20/12.30 on the intervening night of 16/17.2.02. It is further submitted that there is no evidence on record that at that relevant time the witness was resident of Delhi . Further that the testimony of the witness to the effect that his scooter broke down in the middle of the road and as such the vehicle in which the accused persons were travelling alongwith the 433 deceased which came from behind could not pass through is not believable. It is submitted that though it is not admitted that the accused Vikas Yadav and Vishal Yadav were travelling in Tata Safari alongwith Nitish Katara on that night but at the same time it can be seen that the road was enough wide for a Tata Safari to pass the scooter of Ajay Katara which broke down on the road. It is submitted that the witness had no occasion in view of his own testimony to go to Tata Safari to see as to who were the person travelling in the same It is further submitted that there is no explanation as to why this witness had noted down the number of the Tata Safari vehicle as no offence had taken place in his presence and he did not hand over the slip to he IO on which he had noted the number of the Tata Safari. It is submitted that as per his 434 own testimony he had been reading newspaper regularly and watching TV and he admitted that media was giving news about murder of Nitish Katara between 18th to 28th Feb and accused persons were being suspected as the murderers but he did not inform anyone that he had seen the deceased in the company of the accused persons on the intervening night of 16/17.2.02 at Hapur Chungi. He did not disclose this fact either to his landlord nor contacted the complainant Neelam Katara nor informed the police till 18.3.02. The defence counsel Sh KN Balgopal has termed Ajay Katara as a slip witness as he claimed that he had noted down the number of Tata Safari on a slip on the basis of which he gave the number to the IO but he did not hand over the slip to the IO and tore it . He has further argued if he had noted down the number of the vehicle of 435 accused persons why he did not hand over the same to the police officials travelling in two jeeps which passed through that route while he was repairing the scooter. He has further argued that this witness has claimed that there were several vehicles passing from that road while he was repairing his scooter but he did not record the number of any such vehicle. The answer to this question is that the witness had no occasion to note down the number of any other vehicle as he had no dispute with them and the dispute had only arisen between the witness and the accused persons travelling in Tata Safari due to which he noted down its number. xxiii) The defence counsel has further submitted that the statement of the witness to the effect that Sh DP Yadav was terror in the area does not match his conduct as if he was so 436 scared of Sh DP Yadav he would not have approached the police against the accused persons in the present case.
xxiv) He has further argued that even his presence at Hapur Chungi is doubtful . It is submitted that though he has claimed to have visited one Subhash Chand at Ahata of Prantiya Suraksha Bal as he could not have entered the said premises without making entry in the register, though the witness has claimed that there was no such register maintained and the access was free. It is further submitted that no investigation was carried out by the police in this regard as to whether he had visited the house of Subhash Chand on 16.2.02 It is submitted that the premises where he claims to have visited is an armoury as proved by DW 23 Inspt. Satyavir Singh. It is submitted that in view of 437 the testimony of DW 23 Inspt Satyavir Singh the presence of PW Ajay Katara is disputed as this witness has categorically stated that for any outsider the entry has to be made in the register.
xxv) The defence counsel has further argued that PW 33 Ajay Katara was related to Mrs. Neelam Katara and it is the same person who had accompanied her to PS Kavi Nagar on 17.2.02 when she lodged the complaint and thereafter he accompanied her to the mortuary in Bulandshahar. So far his argument is concerned the defence has failed to create any doubt with regard to the truthfulness of the witness as one Ajay Prasad who had accompanied Mrs. Neelam Katara to PS Kavi Nagar on 17.2.02 and his address was recorded by PW 1 Nem Pal Singh as ''AC H No. 500 Vasant Kunj New Delhi'' . 438
xxvi) The defence had ample opportunities to verify from the address as to
whether Ajay Prasad is the same person who has appeared as PW33 Ajay Kumar/ Ajay Katara. However, no such effort was made by defence. PW 33 Ajay Kumar has specifically denied that he was related in any manner to the family of the deceased. Similarly PW 30 Neelam Katara and PW 39 Nitin Katara have also denied the suggestions to this effect.
xxvii) The argument of the defence counsel that PW 33 Ajay Katara was never resided at Delhi does not find any support from any evidence in defence. Pw33 Ajay Katara has categorically denied that at the relevant time he was resided in Delhi in Braham Puri H No. D 50/1, Gali No. 10, Shahdara. And this could not also be got verified by the defence. However, no 439 such effort was made. To the argument of the defence counsel that PW 33 Ajay Katara did not produce any document with regard to his residence in Delhi, the witness has himself explained that he stayed for a very short period in Delhi, as such he did not possess any document to this effect.
xxviii) The defence has further assailed the testimony of Ajay Katara as to why he did not contact the IO through telephone. This witness has specifically answered that he did not note down the telephone number of the IO.
xxix) The defence counsel Sh SK Sharma has further argued that PW 33 Ajay
Katara could not have seen the colour of kurta worn by Nitish Katata since he had wrapped shawl around his shoulders. He also argued that even otherwise he could not have seen the colour 440 of the kurta as Ajay Katara was wearing the dark glasses. Again there is no force in the aforesaid argument as the photograph Ex PW 6/2 of the deceased shows that the manner in which the shawl was worn by Nitish Katara. It is seen from the photograph that the shawl was on his shoulders covering his back , so colour of the kurta from neck down was visible. Besides, PW 33 Ajay Katara has explained during cross examination that he used dark glasses only during day time and the defence did not suggest him that he was making a false statement to this effect. Besides, it has already come on record through his testimony that there was a mercury light so it cannot be said that it was not possible for him to see the colour of the kurta. xxx) The defence counsel has assailed his testimony on the ground that his statement 441 was recorded after a month of the incident and this delay is fatal to the prosecution. It is settled law if he evidence of the witnesses is found to be trustworthy and reliable and withstands searching cross examination, it does not become untrustworthy merely because he was examined after delay by the IO. It is also seen that different person react differently to incidents they witnessed it is totally unrealistic court of law to lay down as a principle of law of universal application that when a witness witnessed the crime he would definitely go out and disclose to others what he had seen.
xxxi) Keeping in mind that different persons react differently to incidents they witnessed, PW 33 Ajay Katara in my opinion did not inform his landlord or Mrs Neelam Katara who was not known to him, about what he 442 witnessed on the intervening night of 16/17.02.02 at Hapur Chungi nor he disclosed it to any other police official except the IO , in my opinion this was his way of reacting in that situation and for this reason he cannot be termed as a false or untrustworthy.
xxxii) This opinion is based on the judgment reported in 1998 Crl. LJ 493 where it was held by Hon'ble Apex Court that the testimony of an eye witnesses cannot be disbelieved merely for the reason they did not disclose the incident to anyone till they were examined.
xxxiii) In the present case the defence during cross examination of this witness has failed to elicit anything in the cross examination to indicate that this witness was interested in the prosecution of the accused persons. 443 xxxiv) The arguments of the defence counsel is as to why he chose the SO to disclose about his knowledge in respect of the incident and not the other police officials or anybody else including Neelam Katara or his landlord. It is obvious that since the matter was sensitive and considering the reputation of the accused persons it was a wise decision on the part of the witness not to have confided in any other person than the IO as there was every possibility of the information being leaked out. The complainant was not known to him as such he could not have gone to her to disclose the information. The witness has also deposed about the danger he had to his life while coming to the court and he took the security for his protection.
xxxv) So far the argument of the defence counsel Sh KN Balgopal that he did not 444 give the slip bearing the number of Tata Safari in which the accused persons were travelling to the police vehicle passing through that road has no force for the reason that there was no occasion for him to complain to the police as he has already explained that he dropped the idea of complaining against the occupants of the vehicle when he saw Vikas Yadav s/o M.P. was there and there was terror of MP in that area. The witness has further explained that Mr. DP Yadav's terror is known to the world over and even to the defence counsel. Moreover the witness has only complained of the uncivilized behaviour of accused Vikas Yadav which in my opinion did not invite any criminal action against him. Besides, the slip on which he noted down the number of the Tata Safari became relevant when he came to know of the involvement of the accused persons 445 through media in the present case.
xxxvi) The other argument of the defence counsel that he had been watching TV from 17/2/02 onwards and still he did not go to the police till 2/3/02 but he has no where stated that since he was scared of DP Yadav that is why he did not approach the police till 2/3/02. Again this argument in my opinion is without any merits. No doubt the witness had already clarified that earlier he had dropped the idea of making a complaint against the accused persons when he found accused Vikas Yadav s/o Sh. DP Yadav was in the vehicle and DP Yadav was a terror in the area, it can be understood that this fear was still in the mind of the witness but somewhere his conscience pricked him on finding that the accused persons were involved in a heinous offence like abduction and murder of Nitish and 446 it changed his mind and thus he approached the police against them even putting his own life at stake. His such conduct is also explaining as to why he did not inform about the knowledge of having seen both the accused alongwith the deceased Nitish Katara in Tata Safari bearing No.PB 07 H 0085 at Hapur Chungi on the night of 1617/2/02 to the landlord or any other person and he only wanted to disclose this fact to the IO of the case. At the same time there is no material on record to suggest that the witness had come to know of the involvement of the accused persons in the abduction and murder of deceased Nitish Katara before 1/3/02. The witness has himself given explanation that he did not approach police since he wanted to be sure of the involvement of the accused persons after identify of the deceased was established. It is on 447 record that the identity of the deceased was established not before 25/2/02 when the finger prints from the dead body matched with the finger prints of deceased Nitish from the record of his driving license. There is no material on record to show as to when this fact was disclosed by the media that the unidentified deadbody was of Nitish Katara and came to the knowledge of the witness. Thus, I do not find any abnormal conduct on the part of Ajay Katara in not approaching the police before 2/3/02. The witness has categorically stated during his cross examination that he went to PS on 2/3/02 as he thought he must help the justice. The said conduct of the witness is appreciable who despite knowing the reputation of accused persons gathered courage and approached the police against them. Merely for the reason that he did 448 not approach the police at the earliest , his testimony cannot be thrown away as he has withstood the test of lengthy cross examination. xxxvii) In this context it is to be seen whether he had any interest in the deceased to be in haste to inform the police. If the witness had been the relative of the deceased then he would have immediately informed the police about the incident but in the present case he was in no manner related to the deceased and was in no hurry to inform the police. Since he did not act promptly, merely for this reason his testimony cannot be thrown away as it was better he informed the police with delay than not reporting the matter at all.
xxxviii) Besides, he has clarified that he had visited the PS on 2/3/02 and thereafter on 12/3/02 but the IO could not meet him. To this 449 effect the statement of PW 35 SI Anil Somania is relevant who stated that on 2.3.02 he proceeded on investigation of this case at about 9.30 am and to this regard he has proved on record GD No. 14 Ex.PW 35/29. He further stated that he came back after investigation at 23:25 hours on 2.3.02 and this fact also finds corroboration from the GD No. 52 Ex PW 35/30. PW 33 Ajay Katara claimed that on 12.3.02 he had again visited the PS Kavi Nagar but could not meet IO, to that effect PW 35 testified that on 12.3.02 he left the PS at 11.10 am since it was Shivrati festival and he was assigned duty of maintaining law and order. The relevant departure and arrival entries Ex.PW 35/41 and PW35/42 in the GD register corroborates the testimony of PW35. The testimony of PW35 to this effect has not been disputed or questioned during his cross 450 examination by the counsel for both the accused. As such it stands proved on record that PW 33 Ajay Katara is a witness of truth and had visited the PS on 2.3.02 and then on 12.3.02 but could not meet the IO since he was not available in he PS. xxxix) The other contention of the defence counsel is that the meeting of PW 33 with the IO on 18.3.02 is not proved on record as IO has stated that he had recorded the statement of PW 33 at 10 am at PS Kavi Nagar , whereas PW 33 Ajay Katara has stated during cross examination by the defence counsel that he had met the IO on 18.3.02 between 11 am / 12 noon. However, in my opinion the aforesaid discrepancy about the time is not of much consequence as PW 35 has stated that he had recorded the statement at 10 am and there can be variation of time between the observation 451 of the two witnesses.
xl) The defence counsel has further argued as to why PW 33 had noted down the number of Tata Safari. The answer to the aforesaid question again depends from person to person as to how a particular person reacts in a particular situation. In the present case the witness has categorically stated that accused Vikas Yadav spoke to him in uncivilized manner. Admittedly, as per the witness he only told him to remove the scooter immediately but even this one line was spoken in uncivilized manner which provoked the witness to go near the vehicle of the accused persons and per chance he noted the presence of Nitish Katara alongwith the accused persons.
xli) The other argument of the defence counsel that the witness did not mention 452 in his statement U/s 161 Cr.PC about the uncivilized behaviour of Vikas, about the fact that Tata Safari came from behind his left side, about the fact that due to stopping of his scooter in the middle of the road there was no sufficient passage for passing of the vehicle , about the fact that there was mercury light at the spot, the witness has already been confronted with his statement U/s 161 Cr.PC where he categorically stated that he had mention this fact in his statement to the IO. It was the duty of the defence counsel to have questioned the IO during his cross examination as to whether witness had made any such statement to him and if so, why it was not recorded by him. It would have been a different situation if the IO had been cross examined on these lines and had stated that the witness did not state to him these facts. However, 453 in the present case, the IO was not cross examined at all in this regard. It is held by the Hon'ble Apex Court in the matter reported in AIR 2000 SC Page 1833 that ''r eading Sec. 161(2) with the explanation to Sec. 162 Cr.PC an omission in order to be significant must depend on whether the specific question,the answer to which is omitted was asked of the witness. In this case the IO was not asked whether he had put question to an eye witness ie wife of the deceased persons asking for details of the injuries inflicted or of the persons who had caused the injuries. It was held that the omissions were not contradictions in the particular context. '' xlii) It is presumed that witness Ajay Katara had made the statement correctly before 454 the IO whatever he stated before the court in his chief examination but IO did not record the same. As such it cannot be said that the testimony of PW33 Ajay Katara was full of improvements or contradictions.
xliii) The other argument of the defence counsel that in his statement before the court he deposed about the uncivilized behaviour of the accused Vikas whereas this fact does not find mention in the statement U/s 161 Cr.PC of the witness and thus it is an improvement, in my opinion has no force as it is not an improvement from his statement U/s161 Cr.PC but he has only explained the behaviour of the accused, to the effect that one line which the accused spoke to the witness ie ''remove the scooter immediately'' was spoken in uncivilized manner. xliv) The argument of the defence 455 counsel that since as per the witness he had last seen Nitish Katara with the accused persons on 1617/2/02 he should have immediately reported the matter to the police is again of no consequence as when he had last seen them together he was not apprehending that there would be any commission of offence for which he should have lodged the complaint. It is only when through media he came to know that on that intervening night of 1617/2/02 the deceased was abducted and lateron was found murdered, the witness got reasons to inform the police. Regarding his conduct of parking his scooter in the middle of the road it is submitted that as a prudent person one will never park his vehicle in such a way causing inconvenience to the oncoming traffic but in the present case the witness has claimed that his scooter was in the 456 middle of the road which shows his abnormal conduct and unbelievable story. Again this argument does not find support from the testimony of Ajay Katara who has not stated at all that his scooter was standing in the middle of the road but he has categorically explained as to how his scooter went out of order and how the Tata Safari came from behind. In his cross examination itself the witness has stated that he had just reached on the round about and the road leading from round about to Delhi when the vehicle of the accused persons came from the road coming from Diamond Palace just behind him when his scooter broke down which means that the vehicle of accused persons was following his scooter and had to be stopped immediately since the scooter of the witness broke down. So it cannot be said that the scooter of the witness 457 broke down before the vehicle of the accused persons came on the road and he was repairing the scooter in the middle of the road. The witness has no where so stated. It is also a natural human conduct of a person that if his vehicle stops on the road including the scooter then instead of removing it on one side he would make one attempt to restart it and in the present case also it must have so happened. Hence, I find no abnormality in the conduct of Ajay Katara. He has stated that since his scooter had just broke down in the middle of the road and scooter was in slanting position it was causing obstructions to the other vehicles. The witness has also testified that there was kacha path also alongwith the road but it appears that the distance between the scooter and the vehicle Tata Safari was so short that when the scooter just stopped on the road 458 the accused persons could not swerve their vehicle towards kacha path to pass through and as testified by the witness after he went and saw the accused persons in the vehicle alongwith the deceased he came back and removed his scooter at one side and then their vehicle just passed away. Now it is to be seen whether the road was wide enough that despite the scooter breaking down in the middle of the road, the accused persons could pass through. To that effect PW Ajay Katara has stated in his evidence that the width of the road was about 15ft and there is no suggestion to the contrary to the witness during his cross examination in this regard. The defence counsel has stated that IO of the case SI Anil Somania has testified that the width of road was 20ft and as per statement of DW13 Sarvesh Kumar Harit Asst Engineer PWD, UP examined in 459 defence the width of the road as per the relevant entries in the register containing road details of the year 2002 the width of the road from milestone 22 27 (22 being Hapur Chungi) is 15 meters on both the side including the central verge and the width of the central verge is 1 meter.
xlv) Admittedly, the IO did not prepare any siteplan of the spot though PW33 Ajay Katara categorically stated that he had accompanied the IO and pointed out the spot and at the same time testimony of DW13 does not inspire credence as he did not produce the siteplan of the spot from the office record but the one prepared at his instance by the draftsman a day before he was to appear in the court which is Ex.DW13/1. There is no evidence as to under whose instructions he got the aforesaid siteplan 460 prepared. Besides, the witness has admitted that he had not taken the draftsman to the spot, to see the site and prepare the siteplan. He claimed that the photographs Ex.DW13/4 & 5 were of the Hapur Chungi. However, he failed to depose as to when these photographs were clicked. He admitted during his cross examination that in the year 2002 the round about of Hapur Chungi was bigger in size than as it is on date. He also admitted that at present there is a raised platform meant for the traffic police to regulate the traffic. He admitted that in the siteplan Ex.DW13/1 he had not shown the position of urinal in the siteplan in the middle of the turning point but towards the side of Delhi. His testimony shows that he had not visited the spot as claimed by him as he did not know the correct details of the site though he claimed that he had visited the 461 site a day before coming to the court and had prepared the siteplan . He could not say if there was a lamp post of mercury light on the road from the side of Ghaziabad towards round about or if there was any electric pole near the board of his department displaying the distance of Delhi as 22 kms on the central verge on the road going towards Delhi. He stated that the bus stop near the spot was at a distance of 1km from the urinal towards Delhi side but at the same time he stated he do not remember if there is any bus stand at a distance of 125 ft from the urinal. He also could not tell if there is any PCO booth just behind the bus stand. He admitted that in the photographs Ex.DW13/4 & 5 the raised platform used by the traffic police is not appearing. In view of his said statement it is not proved by the defence on record that these are the photographs of the spot 462 where the accused persons were seen last in the company of deceased by PW33 and of the same time. However, from the testimony of this witness it is proved that there is change in the site since from the time of incident as he admitted that earlier there was a bigger round about and now there is a small round about only with a raised platform to be used by the traffic police for regulating traffic. The testimony of this witness does not inspire any credance as no authenticated siteplan of the spot at the time of incident is placed on record . It is observed that no one had authorised him to get prepared the siteplan Ex.DW13/1 and he prepared the same without even the knowledge of Executive Engineer. His appearance before the court also shows that he has not been authorised by his Department to appear as a witness. It appears that the witness 463 on his personal level appeared before the court at the instance of the accused persons. xlvi) Moreover, when no suggestion was given to PW33 with regard to his testimony that width of the road was 15ft, it is deemed to be admitted by defence. Besides, I am of the view that even if the width of the road was 20ft still sometimes situation arises like in the present case, when a vehicle is following another which for any reason suddenly stops, the vehicle following gets no opportunity to take his vehicle left or right and brakes are required to be applied by the following vehicle. Similar is the situation in the present case as the vehicle of accused was following the scooter of PW33 which suddenly stopped, as such accused too had to stop his vehicle due to which he in uncivilised manner told PW33 to remove his scooter. Besides, PW33 464 has clarified that there was pole on one side of the road where his scooter went out of order as such, Tata Safari could not pass without removing his scooter.
xlvii) From the total evaluation of the testimony of Ajay Katara I find that he is a witness of truth and there was no reason for him to make a false statement either to the IO or before the court against accused persons when he was neither related to the deceased nor was on enmical terms with the accused persons. I fail to understand that if he had not been a witness of truth why he would take the risk of his life by deposing against the accused persons to support Neelam Katara. The defence has failed to create any doubt on the truthfulness of the witness. xlviii) The defence has attempted to bring material on record that PW33 Ajay Katara is 465 a false witness and that he was resident of Village Bamroli Katara, Distt. Agra. To that effect, DW20 Adv. BP Mittal has been examined who testified that he had filed a divorce petition in the Distt. Courts Bulandshahar on behalf of Mamta Katara against Ajay Katara. He stated that the matter was compromised between the parties on 26/7/04 and the decree was passed by the court on 27/7/04. He produced the certified copy of the divorce petition Ex.DW20/A, certified copy of the written statement filed by Ajay Katara as Ex.DW20/B, the order of the court as Ex.DW20/C and the decree of the court as Ex.DW20/D. He testified that in the petition Ex.DW20/A Mamta Katara had given the address of her matrimonial house as Village Bamroli, Distt. Agra. At the same time he admitted that this address was denied by Ajay Katara in para No. 3 of the written 466 statement Ex.DW20/B and he gave the matrimonial address as Sector 11E, 115 Pratap Vihar, Ghaziabad.
xlix) The aforesaid witness is of no help to the accused persons as the petition Ex.DW20/A filed by Mamta Katara against Ajay Katara by itself does not prove that he was resident of Village Bamroli Katara. Moreover, Ajay Katara in his written statement Ex.DW20/B denied this fact.
l) The other witness examined by the accused persons to prove the involvement of the witness in a case U/s 498A/323/506 IPC at the instance of Smt. Tanu Chaudhary, his wife, is DW24 Sunil Kumar Sharma, Ahlmad of the court of CJM Ghaziabad. Again this witness is of no help to the defence as he admitted that in the aforesaid case, the police filed cancellation report 467 dtd 17/2/07 Ex.DW24/P1.
li) Though the defence has vehemently argued that PW33 is a liar and was in litigation with his wives, however, the two witnesses examined by the defence to this effect as referred above could not prove this fact that Ajay Katara is a liar. Besides, any litigation between Ajay Katara with his wives is his personal matter and has no bearing upon the present case.
lii) Thus, the defence has failed to prove on record that he is a false witness. liii) In view of the above discussion it is proved that he is not an interested witness qua the complainant nor enmical towards the accused persons. He has withstood the test of cross examination with some minor contradictions / omissions which occur in the normal course of 468 events and can be ignored also. The argument of the defence counsel that he did not hand over slip on which he had noted down the number of Tata Safari in the circumstances of the present case is of no consequence particularly when the vehicle Tata Safari bearing registration No. PB 07 H 0085 had already been recovered by the police in furtherance of the disclosure statement of the accused persons and before the disclosure statement was made by the accused persons the reference of Tata Safari had already been made in the statement of PW28 Ct.Inderjeet Singh and PW32 Ct. Satender Singh and even in the statement of Bharti Yadav Ex.PW35/AB recorded on 2/3/02.
liv) The other argument of the defence counsel Sh.SK Sharma for accused Vishal Yadav that the witness testified that prior to 469 16/2/02 he was not friendly with accused Vishal and Vikas Yadav then how could he identify that they were Vishal and Vikas. It is pertinent to mention that the witness has categorically testified that he knew Vikas Yadav and Vishal Yadav and a stout pehalwan namely Sukhdev. It is not necessary for a person to be friendly or to be enmical to identify the other person. Accused Vikas Yadav being son of DP Yadav who was the MP of the area was a known figure and it has already come in the testimony of other witnesses namely Ct. Inderjeet and Ct. Satender that accused Vikas and Vishal used to roam about together so it was not a big thing for Ajay Katara to know them and identify them. Moreover no suggestion was given to Ajay Katara during cross examination that he did not know the accused persons before 1617/2/02.
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lv) Adv. SK Sharma has further argued that the testimony of the witness that the windows of Tata Safari were open when he saw the accused persons in the Tata Safari whereas it was in the month of February and it was cold so there was no reason for the accused persons to keep the windows of the vehicle open. Again the cross examination of Ajay Katara shows that no such suggestion was given to the witness that he did not see the windows of the vehicle open. Besides, merely for the reason that it was winter season it cannot be lost sight of the fact that in mid February the cold is not unbearable and besides, since the scooter of the witness had stopped ahead of the vehicle and it s quite likely that before he cold turn back and respond to the dictates of accused Vikas the window panes were rolled down by the occupants of Tata Safari. 471 Rather in my opinion it is normal human conduct, in such circumstances for the occupants to roll down the window panes. So there was nothing abnormal about the statement of Ajay Katara in this regard. Besides, PW32 Ct. Satender Singh has also categorically stated that when he checked Tata Safari bearing registration No. of Punjab driven by accused Vikas Yadav with three persons including accused Vishal Yadav, the window panes were rolled down.
lvi) As argued by the defence counsel there is no evidence on record that the witness had been repairing the scooter in the middle of the road rather it is proved on record that the moment his scooter went out of order and stopped, the vehicle of the accused persons reached there and he was asked by accused Vikas in uncivilized manner to remove same 472 immediately.
lvii) Besides, it is seen from the cross examination that no suggestion has been given to the witness that the accused persons alongwith Nitish and their coaccused Sukhdev were not present in Tata Safari at Hapur Chungi on the intervening night of 1617/2/02. lviii) The defence to create doubt about truthfulness of PW33 examined DW23 Satyavir Singh. This witness was examined to prove that without making an entry in register an outsider cannot enter the residential complex 47th Battalion, Ghaziabad whereas PW33 claimed to have gone on 16/2/02 to meet his covillager Subhash.
lix) I have gone through the statement of DW23 Inspt Satyavir Singh Company Commandor, 41 Battalion, who testified that he 473 was residing at the residential complex , 47th Battalion, Ghaziabad for the last 14 years alongwith his family. That 47th Battalion is equipped with sophisticated weapons to fight against terrorism and fundamentalists. In the residential complex itself there is armoury and magazine where arms and ammunitions are stored and for its security the residential complex is surrounded by a wall and there in entry point and exit point and line police is posted on both these points for 24 hours. He stated that the register is maintained at the entry point and whosoever enters from outside the complex and does not belong to PAC whether its 47th or 41th Battalion , entry is made in the register. He stated that only residents of the complex are not supposed to make any entry. He further stated that if an outsider visits the complex, date of 474 visit, name, address, the person whom they want to visit, the time of visit, purpose of visit, the person visiting is on foot or any vehicle and the time the person leaves the complex, are all entered in the register. He stated that a person can enter and exit from both the gates and register is maintained at both the gates. It is stated that even the entry of vegetable vendor and milk vendor is secured by the entry passed and is made in the register. Even the vehicle No. is also mentioned in the register on which the outsider enters the complex. This witness was thoroughly examined by the Spl.PP for State. Though he claims to be resident of this complex for 14 years he could not tell the area where the complex of the 47th Battalion is situated. He stated that he never remained posted at any entry or exit gate and stated that it was the duty 475 of the line police to remain at both the entry and exit gate. He also failed to produce ay register maintained at both the gates. He failed to produce any record with regard to the passes issued to the milk vendors and vegetable vendors and hawkers from the office of Commandant. PW33 Ajay Katara in his cross examination had categorically stated that no such register was being maintained at the gate of PSC complex and further the boundary wall of PSC complex was broken at certain places and anybody could exit and enter from these broken portions without any check. It is to rebut the testimony of PW33 Ajay Katara, the defence witness DW23 Inspt Satyavir Singh has been examined . However, admittedly he never remained on duty at the gate of PAC complex nor he has produced any record of the registers being maintained at the gate. The best 476 evidence the defence could have produced would have been of the security guard at the gate of the PAC Complex alongwith the register to disprove or atleast to create a doubt with regard to the truthfulness of PW33 Ajay Katara. However, in my opinion DW23 in no manner was concerned with the maintenance of any register at the gate except that he was resident of that complex though to that effect also he has not produced any record. Even assuming that the witness is residing there, without production of the register maintained at the gate of PAC Complex , his testimony is not substantiated. The argument of the prosecution that as DW23 has admitted that there are about 1000 families residing in the complex and they are allowed free exit and entry, it would have been difficult to monitor the movement of 40005000 people and 477 to recognise them also this fact itself shows that maintenance of the register at the residential complex of PAC is not possible. Besides, the argument of the defence counsel that PAC Complex is impregnable fortress and contains strategic armoury, due to which ingress and egress is strictly restricted and only inmates of the complex can move freely. However, no such evidence has been produced in defence that the PAC Complex is consisting of armoury and magazine. No record in this regard has also been produced in defence. It is pointed out by the Spl.PP that the armoury is a separate unit and specifically guarded by the quarter guards and does not form part of the residential complex due to which entry and exit of the outsider needs to be restricted. I find no cogent reason as to why this witness has been examined in defence 478 whereas if the accused persons wanted to discredit the testimony of Ajay Katara about his visit to PAC Complex without making any entry in the register at the gate for the reason that no register was maintained there, the best witness would have been from the concerned department / incharge of the security guards at the gate or security guards on duty alongwith the record of the registers maintained there. So even this attempt of defence to create doubt about the truthfulness of PW33 has failed. The prosecution in view of the testimony of PW33 has proved beyond reasonable doubt that Nitish Katara was last seen alive in the company of accused persons in Tata Safari No. PB 07 H 0085 at 12:20 / 12:30am on the night of 1617/2/02 at Hapur Chungi.
lx) It is pertinent to mention that the 479 matter was adjourned on 22.4.2008 to 14.5.08 for fixing the date for pronouncement of the judgment. Before that a new development took place in the present case when on 12.5.2008 advocate Sh. GK Bharti moved an application on behalf of accused Vikas Yadav and informed the Court that sting operation was conducted on PW 33 Ajay Katara, during which he admitted certain important facts relating to the present case and that the news of the sting operation is published in 'Metro Now' dtd. 12.05.08. It is further submitted that vide this CD PW 33 had categorically admitted that he is not a witness to the incident, he had done a favour to the complainant being closely related and he had planted evidence on the accused persons to rope them in the present case. Alongwith the application he furnished the copy of the 480 newspaper and two DVDs containing the entire sting operation. Notice of this application was given to the prosecution. The VCDs were visualized in the Court on the laptop. The arguments were heard on the application of the defence for summoning the press reporter alongwith the relevant documents and other witnesses to prove the sting operation in the Court. The matter was adjourned for orders for 24.5.08. A day before that on 23.05.08 Ajay Katara appeared in the Court alongwith his counsel and moved an application alongwith an affidavit admitting the contents of the VCDs and submitted that on 25.3.08 he was with Subhash Yadav and both of them had drinks. Subhash Yadav was asking him inquisitive questions related to the case and in a bid to confuse him he made certain absurd, false and 481 unnecessary statements specially for the reason he knew that Subhash Yadav had connections with Sh DP Yadav and whatever he said would reach him. He claimed that however he was not aware of that he was on surveillance and his words were being recorded. He further mentioned in the application that on 23.4.08 Subhash Yadav again called him since the witness was interested getting into the property dealing business. When he went to meet him in his office he was offered drinks and when he was in drunken condition and under the total influence of liquor he was again asked about the case and he in drunken bravado and to misguide him made some unwarranted, unnecessary and absurd remarks which infact were not at all true. It is further mentioned in his application that he uttered such remarks for 482 the welfare of his son as they were threatening him that in case he did not help them they would kill his son. It is also mentioned that some intoxicant might have been mixed in his drinks by Subhash Yadav, who had threatened him again that his child was in the custody of Sh DP Yadav and would be killed by him. Since he had not seen his wife and son for more than 8 months, he was terrified about his son's safety. Regarding his conversation with Subhash Yadav in respect of gift of cinema hall to him, allotment of gas agency, the blood theory on hammer and election visit etc, he submitted that these were deliberately uttered to misguide, for the welfare of his son, who is in their custody for the last eight months and his wife. He once again reiterated that since he was intoxicated by Subhash Yadav, the entire statement was 483 made by him under extreme fear and in an inebriated condition. He further mentioned in his application that he will stand by his previous statements made by him before the Court on 31.5.03 and 27.7.07 and the same are truthful and final. He further mentioned that even if he is killed his statement before the Court should be taken as his final and truthful statement. lxi) In view of the admission of the sting operation by PW 33Ajay Katara though he claimed that he had made such statements out of fear and to misguide Sh DP Yadav since he was apprehending danger to the life of his son, the application of accused Vikas Yadav U/s 311 Cr.PC moved on 12.5.08 was disposed off as infructuous at the instance of Sh GK Bharti, adv as he did not press this application. Thereafter another application moved on behalf 484 of accused Vikas Yadav U/s 311 Cr.PC for summoning Subhash Yadav, Mr.Sharma, Ajay Katara, his security guards and other relevant witnesses Tanu Chaudhary wife of Ajay Katara and her parents, was also disposed off vide order dtd. 27.5.08.
lxii) The counsel for accused Vishal Yadav addressed further arguments with regard to the conduct of PW 33 Ajay Katara in the light of sting operation. However, no submissions were made in this regard by the counsel for accused Vikas Yadav. As such the submissions made by Sh RK Anand, adv on the two applications U/s 311 Cr. PC dtd. 12.5.2008 and dtd.26.5.2008 are to be taken into consideration to appreciate the conduct of Ajay Katara as to whether his testimony before the Court in the light of sting operation inspires any credence 485 and whether any weightage can be given to the sting operation.
lxiii) Sh SK Sharma, counsel for accused Vishal Yadav has assailed the testimony of PW Ajay Katara that in view of the sting operation he is a false witness and made false statement on oath before the Court when examined as PW 33. It is submitted that in his conversation with one Subhash Yadav and Mr. Sharma he admitted that he was busy in election when the incident happened. Further that the blood of Neelam Katara was planted on hammer .Further that he was related to Neelam Katara and she had transferred a cinema hall at Panipat in his favour. It is submitted that since he is the only witness whose testimony to the effect that he had seen Nitish Katara last alive in the company of the accused persons, the 486 prosecution is relying upon, but in view of sting operation his testimony cannot be termed as reliable. It is submitted that sting operation contains his voluntarily statement hence accused persons are entitled to acquittal. lxiv) On the other hand, Spl.PP for State has submitted that witness in view of his affidavit has clarified that these statements were made by him under threat of Sh DP Yadav that he would kill his son and to mislead as he knew his said statement would be conveyed to Sh DP Yadav by Subhash Yadav who was close to Sh DP Yadav.
lxv) I have heard the conversation between Ajay Katara and Subhash Yadav and Mr.Sharma as contained in the CD. Now it is to be seen what is the effect of the said statement of Ajay Katara in the CD, on his statement 487 before the Court recorded on oath.
lxvi) The record shows that statement of Ajay Katara as PW 33 was
recorded on 31.5.2003 and he was subjected to grueling cross examination by the counsel for both the accused persons but nothing material could be extracted.
lxvii) The court record also speaks that PW Ajay Katara had been continuously receiving threats from the side of accused persons and even police was harassing him at the instance of Sh DP Yadav, order sheet dtd. 31.05.2003 and 30.7.2003 speaks of such pressure and threats upon the witness. Besides, the applications dtd. 15.10.07and 29.10.07 also shows that the witness was put under lot of pressure and he had threat to the life of his son, his wife and in laws. Nodoubt, as per record 488 Ajay Katara was residing separately from his wife and son but that does not severe off his relation with his son and likelihood of any harm being caused to his son would definitely put him under pressure and in such circumstance he would do anything to save his son's life and even his own life. FIR No. 37/08 lodged on 03/03/08 by Ajay Katara also speaks of threats to the life of his son. So it cannot be said that the witness took this defence for the first time in the Court vide his application and affidavit dtd. 23.5.08. The aforesaid FIR also finds mention that pressure was being put upon him to write an affidavit in favour of accused persons or his son would be eliminated.
lxviii) The contention of the defence counsel that in the CD the witness does not 489 appear to be under any pressure is of no consequence as if he had shown any such pressure then the purpose of the witness to mislead DP Yadav would not have been served. The perusal of CD shows that he was put specific questions in this regard and witness answered the same. The CD started with questions from Subhash Yadav:
Ques: ''Tumhara contribution Nil Hota Agar Tumney Dekha Hota.'' While putting this question to the witness, Subhash Yadav took a pause for seconds after saying 'Tumhara contribution' pause 'Nil Hota', which shows as if he was reading the question from some script but could not read it properly and had to take pause.
lxix) Besides, in the entire script it is no where mentioned that the witness did not 490 see deceased in the company of accused persons on the night of 16/17.02.02 at Hapur Chungi.
lxx) The answer of the witness in the CD to the question of Subhash Yadav that he was in election does not talk of the date of incident involved in the present case. Moreover, as per statement of accused Vikas Yadav U/s.
313 Cr.PC the elections were over on14.2.02. lxxi) Similarly there is no admission by the witness in the CD that he had any relationship between Neelam Katara. When in the CD the witness was asked whether his grand father and grand father of Nitish Katara were brothers, the witness did give some answer but that portion is edited, which shows that witness did not admit any such relationship. Merely the witness explained about the background of Nishit 491 Katara, the father of the deceased Nitish Katara does not lead to any inference that he was related to them in any manner as his knowledge could be based on any other information also. Besides, all Kataras cannot be termed as relatives. In the CD itself the witness has stated that there are so many Kataras living at different places such like in Himachal Pradesh, Gurgaon, Agra and there are 10 lacs of Kataras and it does not mean that he was his brother.
lxxii) Similarly about the statement of the witness before Subash Yadav that the death of Nitish was due to fire shot is against the Medical Science/ Jurisprudence. As per Modi's Jurisprudence the bullet injury causes Gutter fracture, whereas in the present case the fracture on the skull of the deceased was opined by PW3 Dr Anil Singhal as comminuted fracture 492 which cannot be caused by any stretch of imagination with a bullet shot.
lxxiii) Similarly the statement of Ajay Katara in the CD that he had smeared the blood of Neelam Katara on the hammer as blood group of Nitish and Neelam was same is again a misleading statement, since no blood group was reported by the chemical examiner. Moreover, it is the accused persons who had agitated in the course of final arguments as to why the blood group on the hammer was not asked from the expert .If the testimony of Ajay Katara in CD which is not recorded on oath is believed to be correct then there was no reason for the IO not to ask for the blood group from the expert as it would have helped him in connecting the accused persons positively with the commission of offence. lxxiv) Regarding the conduct of Ajay 493 Katara it is observed in the CD that he was feeling proud of himself to be a witness in this case as he had earned name and even if a person gets Rs. 1 crore but name is not there its useless. Similarly in the CD he stated that he had told the father of Nitish that he would not sell himself even for Rs. 100 crores. lxxv) After observing the conduct of the witness from the sting operation, now it is to be seen what is the worth of this conversation of the witness with Subhash Yadav and Mr Sharma which is not recorded on oath and whether this statement can give any benefit to the accused persons over the statement of the witness recorded on oath as PW 33.
In Nisar Khan Vs. State of Uttaranchal reported in (2006) 9 Supreme Court Cases 386 wherein it is held that :
494
''P W 1 and PW 2 eye witnesses were examined,cross examined and discharged on 4.1.01. On 7.1.02 on the application of accused persons these witnesses were recalled and reexamined on which date they turned hostile and resiled from previous statement. It was held , it clearly appears that eye witnesses were won over by threats or intimidation after more than one year of their examination and cross examination and ultimately when they were won over by the accused persons they were recalled and reexamined on 7.1.2002. It was observed that earlier PW 4 had moved an application before the trial judge that he had been intimidated by the accused persons not to depose against them. It was observed that PW 1 and PW 2 were won over by money, muscle power ,threats, 495 intimidation and it was held that their testimony recorded as PW 1 and 2 on oath cannot be rejected on the ground that they had turned hostile lateron.'' In Khujji Vs. State reported in 1991 Crl.LJ 2653 it is held that :
''the examination in chief of the witness was recorded on 16.11.76 when he identified all the assailants. His cross examination commenced on 15.12.78, when he stated that he had not seen the faces of accused Khujji and Gudda as they had their backs towards him and refused to identify them. It was held that High Court had rightly come to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-inchief something transpired which made him shift his 496 evidence on the question of identify to help the appellant. We are satisfied on a reading of his entire evidence that his statement in crossexamination on the question of identify of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examinationinchief. Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have ,therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrence is not unnatural nor in his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in 497 his evidence to doubt his testimony. He is a totally independent witness who had no cause to give false evidence against the appellant and his companions. We are, therefore , not impressed by the reasons which weighed that (with) the trial court for rejecting his evidence. We agree with the high court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants.'' It is also held in the case of Yakub Ismail Bhai Patel Vs State of Gujarat (2004) 12 SCC 229 that ce a witness is ''on examined as a prosecution witness he cannot be allowed to perjure himself by resiling from the testimony given in the court on oath by filing affidavit stating 498 that whatever he stated before the Court as PW was not true and was done so at the instance of police.'' lxxvi) The aforesaid authorities are fully applicable to the facts and circumstances of the present case as in this case also the witness had been getting threats to his life at the hands of the accused persons and he moved number of applications to the court to seek protection of his life. This harassment of the witness continued even after his examination concluded on 31.5.2003 as PW33 which is apparent from his complaints dtd. 15.10.07 and 29.10.07 and FIR 37/08 registered with PS Sahibabad. This shows that the accused persons were putting constant pressure upon him to resile from his earlier testimony in the court and finally they succeeded in putting words in the mouth of the witness and 499 recorded sting operation. However, this statement of the witness recorded during sting operation can in no manner be equated with the statement of the witness recorded on oath.
Particularly when he did not make this statement voluntarily as explained by him in his affidavit that he had apprehension to the life of his son at the instance of DP Yadav regarding which he also lodged a complaint with the police vide FIR No 37/08 which was prior to the sting operation, so as such it cannot be said that the witness took this defence for the first time vide his affidavit before the Court on 23.5.08. Besides, it is also seen that his statement in the sting operation is actually misleading about the blood on the hammer , the injury caused on the skull of the deceased by fire arm . Besides, as observed above it is no where mention in his 500 entire conversation that on the night of 16/17.2.02 he was busy in election and had not seen Nitish Katara in the company of the accused persons and their co accused Sukhdev Yadav in Tata Safari No PB 07H 0085 at Hapur Chungi at mid night. It is observed from the court record that on 31.5.03 the day the witness was examined as PW 33 , he moved an application that he was being pressurised by the accused persons not to appear as a witness and there were the threats to his life and property and he was insecure. On this application the matter was referred to Director General of Police Lucknow and IG Police Meerut Zone for talking necessary steps for security of the witness. Record further speaks that on 22.7.03 he again moved an application that he was harassed by the police of Ghaziabad at the instance of Sh DP Yadav and 501 was involved in a false case U/s SC Act in connivance with the police by Saroj Yadav , President of Mahila Morcha congress and a relative of Mr DP Yadav. The perusal of the record further shows that he again moved an application to the court on 15.10.07 that he was being harassed by Ms DP Yadav and was involved in false cases though lateron the same were scrapped. He specifically mentioned in the said application that he was threatened to be crushed under a truck or to be burnt alongwith his family members in a brick kiln. He also alleged that Mr DP Yadav was looking for an opportunity to kill his wife, son and his parents in law and then falsely implicate him in the case. He also alleged that he had received threats from DP Yadav through Dr BK Sharma belonging to Rashtriya Paravarthan Dal that he would be cut into 502 pieces of 10 grams each and then burnt. This application was also marked to the DIG Meetrut Zone for taking necessary action. lxxvii) The other application dtd. 29.10.07 moved by Ajay Katara is also on record wherein it is mentioned that eight attempts were made on his life at the instance of Sh DP Yadav and that his wife Tanu Chaudhary and his son Priyanshu Katara were under his influence and DP Yadav had threatened to kill them. All the circumstances are enough to speak about the constant pressure upon the witness, before and after he gave his testimony as PW 33 on 31.5.03. The pressure on other prosecution witnesses is also apparent from the fact that except PW 33 the other public witnesses in one or the other way did not support the prosecution case. Even the police officials resiled from their 503 previous statements. I am conscious of the fact that a human being, however, a strong person may be sometimes, a stage comes when he succumbs to the pressure. In the present case also I find force in the affidavit dtd 23.5.08 of Ajay Katara that he made the statement to Subhash Yadav and Mr Sharma as contained in the CD of sting operation under threats to the life of his son and to misguide Mr DP Yadav.
lxxviii) In the above circumstances, in the light of the authorities referred above, no weightage can be given to the statement of Ajay Katara as recorded in the sting operation over his statement recorded on oath as PW 33 . Particularly in view of his affidavit dtd 23.5.08 that he stand by his previous statement in the Court recorded on 31.5.03 and 27.7.07 and that these statements are truthful and final and he 504 will stand by the same . He further deposed in his affidavit that even if he is killed his these statement should be treated as final and truthful. lxxix) The contention of the defence counsel that in the light of the sting operation the testimony of PW 33 recorded on oath has to be discarded, in my opinion has no force as it has been held by the Hon'ble supreme Court in the authorities referred above that the statements of the witnesses recorded on oath as PWs carries more weight and are truthful and reliable then the statement of the witness made in the circumstance when he was won over or put under pressure, threat or intimidation on account of money power, muscle power of the accused persons.
lxxx) So far the present case is concerned, the statement of Ajay Katara in the 505 sting operation is not on oath, whereas he was examined on oath as PW 33 and fully supported the prosecution case. The witness has also filed an affidavit that whatever he stated on oath before the Court as PW33 is true and he stands by his said statement. Thus, in my opinion the statement of Ajay Katara in the CD of sting operation recorded after lapse of about 5 years of his examination as PW 33 in the Court and keeping in mind that during this period he was constantly under pressure due to the money power and muscle power of Sh. DP Yadav, the father of accused Vikas Yadav does not effect in any manner his testimony as PW 33. It is also important to note that in the authority reported in 2006 (II) AD (Cr.) SC 16 even the subsequent statements of the witnesses recorded on oath were held to be inadmissible by the Hon'ble 506 Apex Court on the ground that these were made by the witnesses under pressure. In the aforesaid case PW 8 and PW9 made statement U/s 164 Cr.PC on 21.9.89 and were examined in then Court on 18.12.90 as Pws. These witnesses on 16.8.94 filed an affidavit that their statement made before the Magistrate was under pressure, tutored by police of Madhav Nagar and due to their pressure statements were recorded. Vide their affidavitthey completely resiled from their previous statements recorded before the Court as Pws. They stated that they did not see any Mar Peet and who inflicted injuries. They further stated that they did not see any incident at all nor any person. Both these witnesses were allowed to be examined as DW 1 & DW 2 Juxtaposed as DW 1 and DW 2 . It was held that Trial Court rightly rejected their testimony as 507 DW 1 and DW 2 for the reason that they did not lodge any complaint against police to any Court or to any authority about threats and coercion during the period when they were examined as PW 8 and PW9.
lxxxi) From the aforesaid authority it is amply clear that once the statement of the witness was recorded on oath, the witness was cross examined and discharged, thereafter he cannot be allowed to perjure himself by resiling from the testimony given earlier in the court on oath. In view of the above discussion in the present case also no weightage can be given to the conversation of Ajay Katara with Subhash Yadav and one Mr Sharma as contained in the CD over and above his testimony as PW 33 for the reason the witness was under constant threat and pressure from Mr DP Yadav, the father of 508 accused Vikas Yadav.
lxxxii) The testimony of PW 33 has already withstood the test of cross examination and there is no reason to disbelieve the same. lxxxiii) Now it is to be seen whether defence has led any such evidence to create doubt about the truthfulness of the prosecution case.
➔ ALIBI i) Both the accused persons have
denied their presence inside or outside the Diamond Palace at around 12 am on 17.2.02 and at Hapur Chungi alongwith Nitish Katara and have claimed that at about 11:30 pm on 16.2.02 they were present at the house of DW 1 Ashok Gandhi.
ii) Both the accused persons have taken a ''plea of alibi '' that on 16/2/02 they had 509 gone to attend the ring ceremony of the son of DW1 Ashok Gandhi and thereafter accused Vikas Yadav left for Karnal since the next day in the morning there was a havan and in the afternoon there was a ring ceremony at Karnal. He stated that after he left for Karnal, Vishal left for his house''. To substantiate their plea of ''alibi'' the accused persons have produced in defence DW1 Ashok Gandhi, DW4 Pawan Kumar Diwan and DW14 Manuj Diwan. Now it is to be seen whether the accused persons have been able to prove the plea of alibi that at about 11:30pm they were present at the house of DW1 Ashok Gandhi to attend the ring ceremony of his son and they were there till 12:30 and as such could not be present alongwith the deceased Nitish Katara at Hapur Chungi between 12:20am / 12:30am. DW1 an advocate by profession testified that his son 510 Amit Gandhi got married in February 2002 . The ring ceremony of Amit Gandhi was performed on 16/2/02 at his residence. the marriage was on 20/2/02. The ring ceremony was followed by cocktail cum dinner party. The function started at his residence at 8:30pm and it took about 1 / 1½ hours in the rituals at his residence. Th guests started coming at 10pm. The parents of his daughter in law Megha Vig came alongwith DP Yadav and the younger brother of Vishal Yadav besides others. He explained that he was known to the family of DP Yadav since his both the children studies in DPS and both the accused also studied in the same school at the same time. It is stated that accused persons reached his residence lateron. He further stated that though he cannot recollect the exact time since he do not use watch but approximately they were there around 511 11/ 11:30pm. He stated that though he cannot say exactly if both accused persons were present at his residence at 11:30pm sharp but he could say they were there around this time. He stated that they had attended the party very well. They must have left his residence at 12/ 12:15 midnight. He further stated it is possible that they left at 12 midnight also. It is stated that they stayed there in the party for about 1 /1½ hour. The witness categorically stated that the function was videographed and photographs were also taken. To prove the presence of both the accused persons at his residence he produced three photographs. In the photograph Ex.DW1/D1 and D2 both the accused Vikas Yadav and Vishal Yadav were appearing dancing alongwith his other relatives whereas in the photograph Ex.DW1/D3 the accused Vikas Yadav is appearing 512 alongwith the father of his daughter in law. He also produced the marriage card relating to all the functions marked as Ex.DW1/D5 1 to 5 and the letter circulated to the guests before marriage card was sent is DW1/D6.
iii) Through the testimony of this witness the defence has also tried to bring on record that at that time the accused persons had gone to his house in a Mercedes. To this effect the witness testified that when both the accused had left at that time he was present at the gate, they touched his feet and he offered them pack of sweets. His servant had kept the packet of sweets in the vehicle of Vikas and he had given the packet of sweets in the hands of Vishal who was residing at a walkable distance and with the pack of sweets in his hand he walked away. It is important to notice that when this witness was 513 asked as to where Vishal had gone , he initially stated that ''God knows where he went'' but again he improved and stated that he went towards his house. Regarding the car in which he had sent pack of sweets through his servant, he stated that it was an exclusive saloon car and it must be Mercedes.
iv) The prosecution has claimed that he is a false witness as though he claimed that there was function of ring ceremony at his residence which was attended by accused persons, the presence of the girl in the ceremony has not been proved and he has drawn my attention to the statement of this witness where he stated as follows :
' ' the parents of my daughter in law Megha Vig now Megha Gandhi came alongwith Mrs. DP Yadav and the younger brother of accused Vishal Yadav besides 514 others' '.
And then again during his cross examination as pointed out by the SPP for State he testified that as follows:
' ' the family members of my daughter in law left the engagnement venue at 1 ' o' clock' '.
v) I find force in the argument of the prosecutor that in the entire testimony of this witness there is no reference of his daughter in law as to whether she was present there and if present what time she came there, with whom and when she left. Besides, a judicial notice of the fact can be taken of the custom that ring ceremony is never performed at the residence of the would be groom but this function is always arranged from the girl's side. No explanation is given by DW1 as to how the ring ceremony was performed at his residence and it was the girl 515 who was to come to his house alongwith the ring for the boy whereas the custom is just the opposite.
vi) The Ld. Prosecutor has further drawn my attention towards the card Ex.DW1/D5/1 in which it is nowhere mentioned that the function celebrated on that day at his residence was ring ceremony but to the contrary it is mentioned ''lagan ceremony'' and in the cross examination DW1 had stated that on that day it was roka ceremony as well. However, in the card ExDW1/D5/1 it is only mentioned lagan ceremony and the witness has explained that in the ''Lagan Ceremony'' when the parents of his daughter in law came they were accompanied by a pandit who read out a lagan stating date and time when saptpati was to be performed and this is called ''Lagan Ceremony''. It is pertinent to note that in 516 the photographs Ex.DW1/1 to 3 it is not proved on record that these photographs were clicked on the so called ring ceremony of the son of DW1 at his residence and these were clicked on 16/2/02 between 11:30 to 12:30 midnight. The perusal of the card Ex.DW1/5/1 shows that the time of the ceremony is given therein as 7 'O' clock so it cannot be believed that the accused persons had reached there at 11:30pm. It is further important to note that no photograph as such of the ring ceremony or roka ceremony has been produced on record to corroborate the statement of DW1 nor the entire album or the video cassette of the function has been produced on record. It is not that these documents were not available with the witness but why these documents have been withheld is only within his special knowledge for which adverse inference is drawn. This witness 517 has categorically admitted that he had not invited the accused persons but they were invited by the in laws of his son and he even denied that his son was friendly with both the accused persons.
vii) At the same time it is seen that he is an advocate by profession and since as it is argued at every step by the defence counsel that this case was blown out of proportion by the media and everyone was aware of this case ie about the involvement of accused persons, DW1 being an advocate was expected to have been approached by the accused persons at the earliest to produce him before the higher police authorities or even in the court or at least some affidavit of his before any higher authority that on that night during the alleged period of abduction of the deceased ie between 11:30 to 12:30 midnight when they were seen by Ajay 518 Katara at Hapur Chungi alongwith the deceased in fact they were present at his house and attended the ring ceremony of his son. It is further important to note that this witness has admitted that since after that day he never met the accused persons or even Mr. DP Yadav and it is only accused Vishal Yadav who approached him and told him that since he had attended the engagement function and if there are some photographs the same be produced in the court.
It is strange on the part of accused Vishal Yadav also that he did not approach this witness earlier nor collected the photographs of any such engagement ceremony showing their presence, so as to put these photographs to the prosecution witnesses that at that relevant time the accused persons were neither at Diamond Palace nor outside Diamond Palace nor at Hapur Chungi 519 alongwith the deceased.
viii) It is important to notice that to none of the prosecution witnesses it was suggested by the defence during cross examination that the accused persons were in hurry to leave diamond palace since they had to attend the ring ceremony of Amit Gandhi. The accused persons gave different statement to different prosecution witnesses as to where they had to go from Diamond Palace. PW11 Shivani Gaur testified as follows :
' ' accused persons had not taken meals as they told my husband they were in hurry. My husband requested them to take meals but they told they had to go for polling booth' '.
To the contrary PW42 Bhawna Yadav stated as follows :
' 'while they were leaving after 1015 minutes 520 and I was present at the gate of the hall, I asked them as to why they were leaving so early, Vikas my brother told me that it was already 11pm and since he had to reach Karnal to attend some function so they were in hurry' '.
ix) Whereas in his statement U/s 313 Cr.PC in answer to question 238 he stated, he had told his sister Bhawna that he had to reach Karnal for another function and also to reach his constituency via Mukeria. To this effect no suggestion was given to Bhawna in defence that accused Vikas also disclosed to her that after Karnal he was to go to his constituency via Mukeria.
x) The testimony of Bharti Yadav on this aspect is silent. The appreciation of evidence of the prosecution witnesses and DW1 shows that accused persons had made different statements to different persons as to where they had to go 521 from Diamond Palace but to none of the witnesses they informed that from Diamond Palace they had to go to the house of DW1 Ashok Gandhi to attend the ring ceremony of his son. Neither to PW28 Ct. Inderjeet nor to PW32 Ct. Satender Singh nor to PW33 Ajay Katara it was suggested during cross examination by the defence that at the relevant time the accused persons were present at the house of Ashok Gandhi to attend the function of ring ceremony of his son and thus could not be present outside Diamond Palace or at Hapur Chungi.
xi) In view of the above discussion in my opinion the testimony of DW1 does not inspire any credance nor could create a doubt about the presence of accused persons at Diamond Palace at 11:30pm, outside Diamond Palace and at Hapur Chungi at 12:20/12:30 522 midnight in the company of the deceased.
xii) The witnesses DW4 Pawan Kumar Diwan and DW14 Manuj Diwan are also linked with the plea of alibi taken by the accused persons. The accused Vikas Yadav in his statement U/s313 Cr.PC has claimed '' that on 16/2/02 they had gone to attend the ring ceremony of the son of DW1 Ashok Gandhi and thereafter accused Vikas Yadav left for Karnal since the next day in the morning there was a havan and in the afternoon there was a ring ceremony at Karnal.
He stated that after he left for Karnal, Vishal left for his house''. In his statement U/s 313 Cr.PC he did not disclose as to whose function he was to attend at Karnal but he only claimed that he had to attend a havan and a ring ceremony at Karnal which means till that time he was not sure what defence he was to take and at whose place he 523 had gone to attend the hawan and ring ceremony. Till DW4 Pawan Kumar Diwan appeared in the witness box the accused had not disclosed the name of the person or the relative or friend whose place he was to visit in Karnal for attending the above referred functions. DW4 testified that on the intervening night of 16 17/2/02 there was a function at his residence at Karnal. On 16/2/02 there was a Paryojan function at his residence relating to the marriage of his son Manuj Diwan and in the morning there was a Shagun ceremony which was to take place at 10am followed by ring ceremony. He stated that shagun and ring ceremony took place at Highway Green in Karnal on Chandigarh road. He stated that he had business as well as family relations with the family of Mr. DP Yadav and they were invited in the aforesaid functions. He stated that 524 Vikas Yadav had attended the functions who reached his house at 3am on the intervening night of 1617/2/02. On that night there were several guests at his house, so he offered him to stay with him in his room at his residence or in the alternative since the rooms were already booked at Karna lake who could also go there. He stated that the distance between the Karna lake and Highway green was 500 yards as they were situated on the same road and were adjoining each other. He further stated that the marriage function was photographed and videographed. Videographs and CD's were prepared. The photographs Mark DW4/A & B were produced by the witness. He also produced a CD containing the view of the ring ceremony of his son Manuj Diwan dtd 17/2/02 which was shown in the picture . After the ring ceremony 525 was performed, the accused Vikas Yadav was seen in the CD Ex.DW4/1 sitting by the side of Manuj. Regarding the function dtd 16/2/02 the witness stated that it was over by 2:30 midnight before accused Vikas reached. The witness told him as to why he was late, Vikas told him that he was to attend some other function. The witness then told him that if he was already late he should have come on 17/2/02 to attend the function of that day but Vikas told him that he thought he would get up late in the morning so it is better he reached there at night. He stated that Vikas Yadav left around 2 /2:30pm after taking lunch on 17/2/02, though the witness was not very sure of the time. He stated that he had reached Karnal in a black colour or dark blue colour big car.
xiii) During cross examination, the witness could not produce the negatives of the 526 photographs Mark DW4/A & B and he admitted that from the photographs the time and date when these photographs were clicked cannot be made out. This witness also did not prodcue any record of booking of rooms at Karna Lake . He also admitted that no invitation cards were got printed for the function which took place on 17/2/02. He could not tell the date of marriage of his son whether it was 26th or 28th of April 2002. He claimed that the marriage was attended by Mr.DP Yadav but he did not produce the marriage card or any photograph that Sh. DP Yadav attended the marriage.
xiv) He admitted that after 67 days of 17/2/02 he came to know about the arrest of the accused but he did not go to meet Mr. DP Yadav or his family at Ghaziabad. This witness failed to give any reason as to why he did not 527 meet Mr. DP Yadav or his family members after he came to know that accused Vikas and Vishal were involved and arrested in a murder case.
xv) The testimony of this witness does not inspire any credence as he has claimed in his cross examination that the police of Ghaziabad had visited his house after 1520 days of the arrest of the accused persons while he was in Alwar , he was informed on telephone from his residence at Karnal that some officers from Ghaziabad had visited his residence and they were shown the photographs of the function. He further stated that by that time the album was not received from the photographer and his children had brought the photographs from the photographer and shown to the police. The witness was then shown the photograph Mark DW4/B and he stated that the circle around the 528 face of accused Vikas in the photograph as disclosed by his children was marked by the police. It is important to note that no suggestion was given to any of the police officials of Ghaziabad who appeared as prosecution witnesses that they had visited the house of this witness DW4 and collected the photographs to the effect that accused Vikas Yadav was in Karnal attending the function of ring ceremony of his son. This fact has been brought to the notice of the court for the first time during the examination of this witness. It is further strange that though this witness claims that he had business as well as family relations with Mr. DP Yadav but after he came to know that accused Vikas Yadav was arrested in the present case, he did not go to Mr. DP Yadav to help him in this regard. It is important to notice that he claimed during his 529 cross examination that Mr. DP Yadav had attended the marriage of his son in April 2002 but still no talks took place between them in this regard. There is no explanation as to why this witness kept quiet for more than a period of 5 years and did not try to bring the truth to the knowledge of the police authorities or to the court.
xvi) Besides, the arrival of Vikas at Karnal at 3am is not supported by any documentary evidence. No evidence with regard to the stay of accused at Karna Lake has been produced nor even that any rooms were booked there by DW4 Pawan Kumar Diwan. The accused in his statement U/s 313 Cr.PC is silent about the time he reached Karnal whereas this witness has stated that he reached Karnal around 3am. The explanation given by the witness that the accused 530 reached there at late hours since he thought he would get up late in the morning is again not substantiated by the accused in his statement U/s. 313 Cr. PC. As such there is no reasonable explanation as to why the accused would reach there at 3 am instead of next morning particularly when the CD Ex.DW4/1 shows his presence after the ring ceremony is performed. This witness did not speak of any havan ceremony to have taken place at his residence on 17/2/02 which the accused has claimed in this statement U/s. 313 CrPC, was to be attended by him. As such if he was to attend only the ring ceremony he could have conveniently reached Karnal on 17/2/02 itself. Besides, there is no documentary evidence produced on record about any function which took place at the house of this witness on 16/2/02 for which the accused 531 had left Diamond Palace in hurry.
xvii) Lateron the defence produced DW14 Manuj Diwan s/o DW4 Pawan Diwan to corroborate the statement of his father and to cover certain lacunas which were left unfilled by his father ie regarding the time when the ring ceremony started and till what time the accused remained present there.
xviii) He stated that ring ceremony started around 9:30 / 10 am and it lasted till about 4pm. Regarding accused Vikas Yadav he stated that he had reached the venue before they reached there for attending the function and he remained there till around 3pm. But CD Ex.DW4/1 does not show his presence in the function before or at the time of ring ceremony. It is pertinent to notice that this witness did not depose that accused Vikas Yadav had reached Karnal at 3am 532 on the morning of 17/2/02 as deposed by his father DW4 Pawan Diwan nor about his stay at Karna Lake.
xix) No doubt this witness too has deposed that in his presence Ghaziabad Police (UP) had visited his residence and recorded his statement though the copy of statement was not given to him. He stated that photographs Ex.DW14/A is the only photograph of accused Vikas in the album of his ring ceremony. He was shown the photograph Mark DW4/B. On seeing this photograph he admitted that in this photograph also accused Vikas Yadav is appearing and it relates to the function. It was observed by the court both the photographs Mark DW4/B and Ex.DW14/A are the same photographs . He was shown another photograph Mark DW4/A in which accused Vikas Yadav is appearing and he 533 admitted that this photograph is not part of the album produced by him in the court and the negatives Ex.DW14/B also do not contain the negative of this photograph. He testified that the photograph Ex.DW14/A was clicked by some photographer booked from the side of his wife and the album which he had produced contains the photograph which were clicked by the photographer engaged by the family of his wife. There is no reason given as to why he had produced the album prepared from the side of his wife. He did not produce any album prepared from his side to show that photographs Marked DW4/A & B lateron exhibited Ex.PW14/C & D were clicked by the photographer from their side. He also did not produce the negatives of these two photographs. He stated that these photographs Ex.DW14/A and Mark DW4/B are not 534 similar but there was a difference of face expressions of the persons appearing in the photographs and their movements were also different. He neither produced the negatives of these photographs nor the bills raised by the photographer nor the bill pertaining to the album Ex.DW14/E. xx) This witness has claimed that Ghaziabad police had visited his residence at Karnal in his presence. The photographs Ex.DW14/C & D were shown to the police and their copies were also taken by them. He stated the album was available with him at that time and the photographs were taken out of it and handed over to the police. Whereas DW4 during his cross examination made contradictory statement that at that relevant time he was in Alwar when the police reached his residence and 535 they were shown the photographs of the function, he stated that by that time the album was not received from the photograph and his children had brought the photographs from the photographer and shown to the police.
xxi) DW 4 also claimed that the negatives were misplaced by the photographer since he had shifted his shop and assured that in case he locates the negatives he would deliver the same to them. To the contrary DW14 during cross examination stated that the photographs Ex.DW14/C & D were got prepared by him from the negatives. He clarified that till that time photographer had not handed over the negatives to them so he asked him to prepare these photographs to complete their album.
xxii) DW14 was also shown the photograph of accused Vikas Yadav Ex.DW14/C 536 wherein the face of accused Vikas Yadav was encircled and he stated that he was not aware of as to by whom and on which occasion the face of accused was encircled. To the contrary DW4 stated that his children told him that this photograph was encircled by the police. This shows that both the witnesses made contradictory statement to each other with regard to handing over the photographs of the function showing presence of accused Vikas Yadav to the police. Besides, as referred above no such suggestion was given to any official of UP Police in this regard. Even assuming that the accused Vikas Yadav attended the function on 17/2/02 at Karnal it does not lead to any inference that on the night of 16/2/02 between 11:30 to 12:30 he was not present at Ghaziabad at Diamond Palace, at outside Diamond Palace and at Hapur Chungi. 537 None of the defence witnesses produced by the defence inspire any credence due to their own conduct who remained silent for a period of about 5 years and opened their mouth for the first time during their statement before the court. xxiii) It is held by the Hon'ble Apex Court in the authority reported in 2003 (3) JCC 1952 that :
''th e defence witnesses' account was rightly discarded by the trial court and the High Court. First of all, it must be noted that these witnesses never came forward to give their version before the police. There is no explanation as to why they should as law abiding citizens withhold the important information. Hence the defence evidence was held to be not trustworthy.'' xxiv) The aforesaid authority is fully 538 applicable to the defence witnesses examined by both the accused persons with regard to the presence of the accused persons at the house of DW 1 Ashok Gandhi at about 11.30 pm on 16.2.02 and thereafter DW4 and DW5 regarding the presence of accused Vikas Yadav at their house at Karnal at 3 am on 17.2.02.
xxv) In view of the aforesaid authority no reliance can be placed on the testimony of these witnesses particularly DW 1 who himself is a lawyer by profession and is a law abiding citizen but withheld the important information for more than five years.
xxvi) As per Sec.106 Indian Evidence Act, when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. To attract the provisions of Sec. 106 Indian Evidence Act the prosecution must 539 discharge the initial burden of establishing prima facie the guilt of the accused beyond all reasonable doubt and it is only thereafter if any specific fact is pleaded by the accused which is only in his knowledge, the burden of proving the same is upon him. The accused persons have taken plea of ''alibi'' to the effect that at the relevant time they were at the house of DW1 Ashok Gandhi and as such they could not have abducted the deceased Nitish from diamond Palace and could not be spotted by two Constables at T point near Diamond Palace or could not have been seen at Hapur Chungi by PW33 Ajay Katara in Tata Safari No PB 07H 0085 alongwith the deceased and coaccused Sukhdev.
xxvii) The plea of alibi is admissible U/s.
11 of Indian Evidence Act.
540
It is held in the authority reported in 1997 CrLJ 2853 Delhi High Court that ''burde n of proof for such plea lies on the person who raises it.'' It is further held in the authority reported in 2006 I AD (Cr.)SC 661 that '' the onus to prove the alibi rests heavily on the accused'' xxviii) In view of the authorities referred above the burden lies on the accused to prove the plea of alibi to the hilt. xxix) In the present case, the plea of alibi raised by both the accused persons does not inspire any credibility. The schedule of accused Vikas Yadav that from Diamond Palace he had gone to the house of DW1 Ashok Gandhi to attend the ring ceremony of his son Amit Gandhi 541 at 11:30 pm on 16.2.02 and thereafter he went to Karnal to attend the ring ceremony of DW14 Manuj Diwan on 17/2/02 and thereafter in the evening of 17/2/02 he visited his factory Oswal Sugar Mill at Mukeria and from there he left for his constituency Bisoli and then to Allahabad, was not put to any of the witnesses examined by the prosecution particularly PW34 SI JK Gangwar, PW35 SI Anil Somania, IO of the case and PW 33 Ajay Katara. Thus, the defence taken by the accused is an after thought. Moreover the witnesses examined by the defence to this effect ie DW1 Ashok Gandhi, DW4 Pawan Kumar Diwan and DW14 Manuj Diwan kept quiet for 5 long years and did not give any information to the police or even to the Court that at the relevant time accused Vikas Yadav was in their company and therefore he could not have been present 542 at Hapur Chungi on the intervening night of 16 17/2/02 at 12:20 / 12:30am. In view of the authority referred above ie 2003(3) JCC 1952 no reliance can be placed on the testimony of these defence witnesses. Thus, in the present case both the accused persons have failed to discharge the onus placed on them through cogent and reliable evidence as such their plea of ''alibi'' is rejected. The prosecution has proved on record beyond reasonable doubt that the deceased was abducted by the accused persons from Diamond Palace and he was last seen alive in their company at Hapur Chungi in Tata Safari No. PB07H 0085 at 12:15 / 12:30 am on 16 17/2/02.
xxx) It is held in the authority reported in 2001 Crl. LJ 1734 by the Hon'ble Apex Court that the presumption U/s 106 of the Evidence Act can only be drawn against the 543 accused persons after the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. It is further held that when more persons than one have abducted the victim, who was later murdered it is within the legal province of the Court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder and Section 34 IPC could be invoked for the aid to that end, unless any particular abductor satisfies the Court with his explanation as to what else he did with the victim subsequently, ie whether he left his associates enroute or whether he 544 dissuaded others from doing the extreme act etc. The abductors alone could tell the Court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the Court there is every justification for drawing the inference, in the light of all preceding and succeeding circumstances that the abductors are murderers of the deceased. xxxi) The cummulative effect of the above discussion is that the prosecution has proved by over whelming evidence beyond reasonable doubt that accused Vishal Yadav had deceitfully taken away Nitish Katara the deceased outside the Diamond Palace and from there in the company of accused Vikas Yadav and one another person were seen alongwith the deceased by Ct. Inderjeet and Ct. Satender at T point Diamond Palace and thereafter at Hapur 545 Chungi by PW33 Ajay Katara between 12:20 / 12:30 midnight and thereafter the dead body of the deceased was recovered from Shikarpur road within the jurisdiction of PS Khurja Nagar spotted by PW23 Virender Singh at 9am which was lateron identified to be of deceased Nitish Katara. In these circumstances, the accused persons if had not murdered the deceased they ought have offered an explanation as to how and when the deceased parted company from them. Since it was within their special knowledge as to what happened to Nitish Katara after he was seen in their company by PW 33 Ajay Katara , they have failed to discharge the burden cast upon them by Sec. 106 of the Indian Evidence Act and this circumstance also provides an additional link in the chain of circumstances proved by the prosecution against them.
546xxxii) The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
xxxiii) In the present case the deceased was seen last in the company of accused persons at 12:20/12:30 am on the intervening night of 16/170202 at Hapur Chungi by PW 33 and the entire testimony of PW 33 shows that no suggestion was given to this witness that he had not seen the accused persons in the company of deceased at that time and place. I find that on the other hand irrelevant suggestions were given to the witness that he was not present at Hapur Chungi on 16.2.02 as stated 547 by him, which leads to the inference that though they are denying the presence of witness at Hapur Chungi but they passed through that route. Similarly the other suggestion to the witness that there was enough space by the side of scooter, which had broken down, for vehicles to pass again leads to the similar inference. It is pertinent to mention that the deadbody of the deceased was spotted thereafter at 9 am on 17/2/02 by PW 23 at Shikarpur Road in District Khurja in burnt condition. The time gap between the point of time when the deceased was last seen in the company of the accused persons and recovery of deadbody was so small, moreover it was dead of the night when he was spotted in their company of the accused persons after they all had attended the marriage at Diamond Palace, so it was only for the accused persons to have 548 explained as to where they had parted with the the deceased in the dead of the night so as to rule out any possibility of the accused persons bring the murderers.
xxxiv) The testimony of PW 33 who last saw the deceased in the company of the accused persons has remained unshaken in cross examination. And his testimony is convincing. Besides, the defence has failed to bring any material on record that this witness had any motive to wrongly frame the accused persons.
➔ ADMISSION / CONFESSION: i) The prosecution has relied upon the
interview given by accused Vikas Yadav to the media at Ghaziabad on 25/2/02 that he admitted his presence outside Diamond Palace alongwith Nitish Katara. To that effect the prosecution has 549 examined PW36 Revati Lau NDTV reporter who testified that on 25/2/02 she had gone to Ghaziabad court to cover this case. There were several press reporters and one of them asked questions which was recorded in her camera which is contained in tape Ex.PW36/1. She stated that the question was put by male voice to the accused which is reproduced as follows:
Ques. It is told that you have admitted to the police and confessed before the police that you had a quarrel with them (unse)?
The answer given by accused Vikas Yadav is as follows:
Ans. I had a slight quarrel but I was not knowing who he is. I never knew who he is and what was his name. My quarrel had taken place outside the gate and thereafter I had no talk with him. He had not accompanied me or 550 sat in my car nor any such thing happened. No such thing had happened and I do not know from where such things are being invented. I learnt it later that there was a boy of such name with whom I had an altercation (TU TU MEIN MEIN) and there is nothing beyond it.
ii) In the statement U/s 313 Cr.PC accused Vikas Yadav has admitted to have given such interview though he claimed he was tortured badly over there before he was interviewed by stubbing cigarette buds by Inspector in the lockup. Similarly, accused Vishal Yadav who was also appearing in the cassette Ex.PW36/1 admitted about this interview by accused Vikas Yadav to the media.
iii) The prosecution has claimed that the interview to the media amounts to the admission of the fact that he was present 551 outside Diamond Palace alongwith Nitish Katara the deceased on the night of 16/2/02.
iv) On the other hand the counsel for the accused persons have argued that the aforesaid statement of the accused to the media neither amounts to confession nor is an admission. It is submitted that since the accused Vikas Yadav was in police custody, thus, in view of the provisions of Sec. 26 of the Indian Evidence Act, the said statement is inadmissible in evidence. In support of its claim the counsel for accused has relied upon an authority NCT of Delhi Vs Navjot Sandhu AIR 2005 SC 3820.
The relevant para 176 relied upon by the defence counsel is reproduced herein below for ready perusal:
'' We may also refer to the contention advanced by Sh. Ram 552 Jethmalani , learned Senior Counsel appearing for S.A.R. Gilani with reference to the confession of Afzal. Sh. Jethmalani contended that Afzal in the course of his interview with the TV and other media representatives, a day prior to the recording of a confession before the DCP, while confessing to the crime, absolved Gilani of his complicity in the conspiracy. A cassette (Ex.DW4/A) was produced as the evidence of his talk. DW4, a reporter of Aaj Tak TV channel was examined. It shows that Afzal was pressurrised to implicate Gilani in the confessional statement, according to the learned counsel. It is further contended by Sh.Jethmalani that the statement of Afzal in the course of media interview is relevant and admissible under Section 11 of the Evidence Act . Learned Counsel for 553 Afzal, Sh. Sushil Kumar did not sail with Sh. Jethmalani on this point, realising the implications of admission of the statements of Afzal before the TV and press on his culpability. However, at one stage he did argue that the implication of Gilani in the confessional statement conflicts with the statement made by him to the media and therefore the confession is not true. We are of the view that the talk which Afzal had with the TV and press reporters admittedly in the immediate presence of the police and while he was in police custody, should not be relied upon irrespective of the fact whether the statement was made to a police officer within the meaning of Sec. 162 Cr.PC or not. We are not prepared to attach any weight or credibility to the statements made in the course of such 554 interview prearranged by the police. The police officials in their over zealousness arranged for a media interview which has evoked serious comments from the counsel about the manner in which publicity was sought to be given thereby.
Incidentally, we may mentioned that PW60 the DCP, who was supervising the investigation, surprisingly expressed his ignorance about the media interview. We think that the wrong step taken by the police should not ensure to the benefit or detriment of either the prosecution or the accused.''
v) On the other hand the prosecution has relied upon the judgment of the Hon'ble High Court of Gujarat, Sajidbeg Asifbeg Mirza Vs State of Gujarat dtd 17/11/06 in CRLR No. 694/2006, which was confirmed by the Hon'ble 555 Supreme Court vide judgment dtd 22/1/07 in Crl. No. 130/2007, where the accused had made statement to the media while he was in police custody and was admitted in the hospital. In the said authority the judgment of Navjot Sandhu's case has also been referred and discussed. However, it was held in this case :
'' the accused who was technically in police custody, while in hospital he made himself available to local news channel for interview. It was held that in the light of these facts, it could not even remotely be said that whatever was stated in the said interview was a statement before the police and was hit by Sec. 162 Cr.PC . It is not the case of the petitioner that the interview was prearranged by the police, besides it is also not the case of the petitioner that the 556 police personnel were present at the time of interview and they forced the petitioner accused to make narration of the events in a particular manner. In light of that, the contents of that interview must come on record. The Ld. Sessions Judge has not committed any error in allowing application Ex.86.''
vi) I have gone through both the authorities cited on behalf of the prosecution as well as the defence counsel and I fully agree with both these authorities. However, they are not applicable to the facts and circumstances of the present case since the interview given by accused Vikas Yadav in no manner can be termed as a ''confession'' made by him to the media while in custody of the police as he did not confess his guilt and made no reference with regard to the offence of abduction and 557 murder of the deceased.
vii) The confession made by any person while he is in police custody cannot be proved against such person in view of Sec 26 of the Evidence Act except in the circumstances as detailed in Sec. 27 of the Evidence Act, thereto only that part of information received from the accused may be proved by the prosecution whereby any fact is discovered in consequence of the information received from the accused persons. In the present case, the statement made by the accused to the media is not a confession as such the provisions of Sec. 26 Indian Evidence Act are not applicable in the present case.
viii) Now it is to be seen whether the statement of accused amounts to any ''admission'' before the media with regard to 558 any relevant fact.
ix) ''Admission'' is a statement or a declaration of an independent fact from which guilt may be inferred but is not confession. It is an admission of a particular fact pertinent to issue and evidence of that fact.
x) As referred above, the statement made by accused Vikas Yadav to the media is not confession since there is no admission of guilt, however it is a relevant fact U/s 3 of the Evidence Act, to the fact in issue that deceased Nitish Katara was abducted from Diamond Palace. The statement of the accused to the media amounts to an admission regarding presence of Nitish Katara outside Diamond Palace alongwith the accused persons.
xi) The argument of the defence counsel that prosecution has examined PW Jai Prakash 559 and Umesh who in their statements U/s161 Cr.PC have claimed that they had seen a boy in red colour kurta, pajama, white shawl alongwith three persons who shook hands with persons standing outside and thereafter they left in a car and that the statements of PW Jai Prakash and Umesh are in conflict with the statement of PW36 Revati Lau who produced the tape Ex.PW36/1 in the court whereby the prosecution has tried to prove that some verbal altercation has taken place between accused Vikas Yadav and Nitish Katara. I do not agree with the aforesaid contention of the defence counsel as it is not the prosecution case that PW19 Jai Prakash and PW31 Umesh Sharma had seen Nitish Katara shaking hands and exchanging pleasantries with the accused persons, to the contrary their statement U/s 161 Cr.PC finds 560 mention that after shaking hands with the boys standing outside Diamond Palace, he sat alongwith 3 boys in a Tata Safari and went away. So in my opinion there is no conflicting evidence on record of the prosecution in this regard.
xii) I fully agree with the contention of the defence counsel that any confession made by accused while in police custody is inadmissible U/s 26 of the Evidence Act subject to exception U/s27 Evidence Act but in the present case the statement of accused while in police custody cannot be termed as a confession rather it amounts to an admission of a relevant fact in issue.
xiii) As per Sec. 3 of the Evidence Act all facts are relevant which are capable of affording any reasonable presumption as to the 561 facts in issue. One fact becomes relevant to another if they are connected with each other in any manner described in Sec. 5 to Sec. 55 of the Indian Evidence Act. Generally speaking facts relevant to an issue are those facts which are necessary for proof or disproof of a fact in issue. Such facts may be given in evidence directly or inferentially. Statement of witnesses what they heard from other person at the scene immediately after the occurrence that the accused fired gun is admissible as a relevant fact. Similarly, in the present case, the evidence of two Constables PW28 Ct. Inderjeet and PW32 Ct. Satender Pal Singh and even to some extent the statement of Jai Prakash and Umesh , discloses a fact relevant to fact in issue ie the presence of accused persons and Nitish Katara outside Diamond Palace and thereafter 562 at T Point near Diamond Palace. The facts in issue are whether the deceased Nitish Katara was abducted from Diamond Palace. Thus his presence inside the Diamond Palace and outside the Diamond Palace in the company of the accused for any reason whatsoever is important and relevant to the fact in issue. As such, the admission of the accused of his presence outside the Diamond Palace and of any altercation with the deceased proves their presence together outside the Diamond Palace and is relevant to the fact in issue. It is important to note that the accused persons have claimed otherwise that they did not know Nitish Katara. Hence, the interview to the media by accused Vikas Yadav though cannot be termed as a confession made by him while in police custody but it does amount to a relevant 563 admission which is admissible in evidence and is not barred by Sec. 26 Evidence Act.
xiv) No material has been brought on record that accused Vikas was forced to make any admission before media or the media interview was prearranged. Nor there is any evidence that the accused was badly tortured by police prior to his interview. The MLCs of the accused on record does not support his version U/s 313 Cr.PC that he was tortured with cigarette buds as no such injuries were found on his person.
In a letter written by Jail Supdt to the DGP that the custody of both the accused persons were handed over to SI Anil Somania PW35 on 24/2/02 from Dabra Jail and they were in sound state of health at that time. This itself shows that the theory of stubbing of cigarette buds for the first time in his statement U/s 313 564 Cr.PC does not inspire credance. If there was any such torture, atleast the IO PW35 SI Anil Somania, PW34 SI JK Gangwar and PW36A Inspt Ashok Bhadoria ought have been suggested to this effect but no suggestion was given. Besides, accused Vishal Yadav did not allege any such torture of Vikas Yadav by police, in his statement U/s 313 Cr.PC. The admission is thus voluntarily made by him about his presence with deceased outside Diamond Palace and is admissible in evidence against him. Moreover the interviews which are given to the reporter by the accused persons without any coercion or pressure in natural flow are helpful to the court in coming to rightful conclusion in any case. So far the present case is concerned accused Vikas Yadav has admitted in his statement U/s 313 Cr.PC 565 that he made such interview to the media and there is no evidence on record that he made this interview under pressure. The statement of the accused U/s 313 Cr.PC cannot be ignored even though it is not an incriminating circumstance appearing in evidence against him, as held by the Hon'ble Supreme Court in the authority reported in 1998 CrLJ 1411.
xv) It is an additional link to the chain of circumstances relied upon by the prosecution.
➔ DELAY IN RECORDING THE
STATEMENT OF THE PROSECUTION
WITNESSES.
i) The counsel for both the accused
have raised strong objection to the admissibility of the evidence of the prosecution witnesses, particularly PW 33 that his statement was recorded with delay on 18.03.02 whereas he had 566 seen the deceased in the company of the accused persons in the intervening night of 16/17.02.02. It is submitted that the statement of PW Ct. Inderjeet Singh and Ct. Satender Singh were recorded on 4/3/02, Gaurav Gupta on 26.03.02 and Sultan Singh on 19.03.02 and there is no explanation for delay in recording the statement of the witnesses. It is submitted that these witnesses were subsequently planted by the prosecution and their testimony is liable to be thrown outrightly as they were not witness to the relevant facts but were introduced by the prosecution. In support of his claim, he has cited authorities reported in 1989 Supreme Court Cases (Cri) 649 Surinder Singh Vs State of Punjab whereby it is held that:
'' the conduct of PW2 after the 567 occurrence had taken place has certainly to be viewed with suspicion. If he had been a witness to the murderous attack on Manjit Singh, it would be natural to expect him to go and inform the parents and relations of Manjit Singh of the occurrence and also the police authorities. On the other hand what PW2 had done was to go to his house and sleep for sometime and then go and inform the matter to PW3 and some others. The story of PW2 that because of the threats of the appellant he did not go and inform anyone forthwith cannot be readily accepted. If he was so frightened at that time to go and tell others about the occurrence , it is not known how he was able to get over his fears a few hours later and go and inform PW3 and others about what had happened."568
ii) This authority is not applicable to the facts and circumstances of the present case as none of the witnesses were eye witnesses to the crime but lateron they came to know that the deceased who was seen in the company of the accused persons was actually abducted and murdered. It is also on record that till the finger prints of the unidentified dead body matched with the finger print of deceased Nitish Katara from the record of his driving license on 25.2.02 there was no evidence collected by the investigation agency that Nitish Katara was murdered. It is only in this context to be seen when the statement of the prosecution witnesses were recorded.
iii) In the same context he has cited another authority reported in 1975 CAR 306 of (SC) Chuhar Singh Vs State of Haryana wherein 569 the statement of eye witness was recorded after three weeks. It was held that:
'' it is surprising that the statement of so important a witness should not have been recorded for over three weeks. Darbara Singh says that his statement was recorded by a police officer 2030 days after the incident. ASI Raj Singh contradicted him and deposed that he recorded Darbara Singh's statement on the very night of the 3rd but considering the serious allegations which have been made against Raj Sigh, it is impossible to accept his claim. Besides, the subsequent course of events, renders it more probable that Darbara Singh's statement was not recorded except at a later stage of the investigation. Krishna Chandra Katyalm the Dy. Supdt of 570 Police went to Danauli on 5th August for verifying the statement recorded by ASI Raj Singh and ASI Rameshwar Dayal. He verified the statements of various witnesses soon after his arrival in Danauli but he contacted Darbara Singh nearly a month later on 4th September. That shows that Darbara Singh's statement was not recorded by the investigating officer before the arrival of the Dy. Supdt of Police ; or else, he could not have failed to question as important witnesses like Darbara Singh. A large number of witnesses who claimed to have seen the incident resiled from their statements and it would appear that Darbara Singh came forward a month after the incident to support a dying cause. ''
iv) He has also cited authority 571 reported in 1997 II AD (Cr.) Bombay 291 State of Maharashtra Vs Wafati Babu Qureshi whereby it was held that:
'' there is a common infirmity in the statements of all the three eyewitnesses which renders it unsafe for us to accept them. That is, that although the incident took place on 16/1/1982, all the three eye witnesses were interrogated belatedly U/s 161 of the Cr. PC; Nayeshabi and Saberabi on 22/1/82 and MA Gani on 1 / 2/82. The Apex Court in a large number of decisions, out of which reference need only be made to one viz, GB Patil Vs State of Maharashtra (AIR 1979 SC 135 paras 15 and 18), has deprecated the practice of recording statements U/s 161 Cr. PC after an inordinate delay. In the said decision, it has laid down that such delay may give rise to the inference that 572 the witnesses had not seen the incident and the investigation was buying out time to give shape to the prosecution case . In our view, in the absence of any explanation forthcoming from the side of the prosecution this inordinate delay in recording of the statements of these witnesses, U/s 161 CrPC is alone sufficient to reject their testimony'' .
v) The authority cited by defence counsel is reported in 1981 CCC Page 19 Delhi State Vs Smt Chameli Devi and Ors wherein the only independent witness disclosed to the police about the murder of the deceased after 9 days of his knowledge of murder. In this case, the murder had taken place near the shop of the witness and he did not care to go and to see the deceased and his behaviour was found abnormal and strange besides, his evidence was 573 also found full of infirmities and not trustworthy.
vi) The said authority is also not applicable to the facts and circumstances of the present case where no incident had taken place in the presence of any of the witnesses except that they could corelate the fact of their having seen the deceased in the company of the accused persons on the night of 16th and 17/2/02 to the present case when lateron they came to know of the abduction and murder of Nitish. The deceased was not known to them earlier and they could never comprehend that any crime was likely to take place. Besides, the deadbody of unidentified person was recovered, so till the identify of the deceased was established it was not expected of any person to approach the police to say that they had 574 seen the deceased in the company of the accused persons.
vii) The defence counsels have further relied upon the authority reported in 2007(4) JCC 2980 High Court of Delhi whereby it was held that:
'' PW2 the eye witness who had seen the accused fleeing from the place of incident armed with knife but he did not report the matter to the police for 4 days as to what he had seen. It was further held, '' it is difficult to believe that in a jhuggi cluster locality where the murder had taken place, an eye witness would be oblivious of the investigations being conducted by the police. The witness was held to be not trustworthy.''
ix) In this case also there was an eye 575 witness who did not report the matter to the police for 4 days and is thus not applicable to the facts of the present case which is based on circumstantial evidence.
x) On the other hand the prosecution has relied upon an authority reported in 2003 (1) JCC 97 Kiledar Singh & Ors Vs State of MP where in a case U/s302/307/201 r/w Sec.149 IPC the statement of PW3 an injured witness was recorded after 77 days of the incident.
It was held that :
''there was no reason to disbelieve his explanation that he had gone out so his statement was recorded with delay. It was held to be not fatal for the prosecution. ''
xi) The other authority cited by the prosecution is reported in 2006 IV AD (Cri) (DHC) 576 257 State (through CBI) Vs Santosh Kumar Singh.
In this case the statement of PW2 the neighbourer of the deceased who had noticed the accused standing near the door of the flat of the deceased towards the staircase with helmet fitted visor in his hand . The statement was recorded on 4/2/96 whereas the incident had taken place on 23/1/96.
It was held that:
''it was for the investigating officer to collect the evidence and conduct the investigation and it was for him to see what was more important and how to go about the investigation. It is further held that statement of PW2 cannot be brushed aside nor challenged on the ground of being recorded late. It was held that PW2 was a reliable witness who had seen the accused around 4:50pm outside the flat of the deceased.'' 577
xii) The other authority important in this context is reported in State of UP Vs Satish 2003 II AD (SC) 675 where it was held that :
'' a witness cannot be faulted for not being examined earlier and the explanation if at all can be got only from the investigating officer.''
xiii) Relying upon these authorities I am of the opinion that so far the present case is concerned, particularly the statement of PW33 has already been discussed above and he is found to be reliable witness who had neither any interest in favour of the complainant nor was enmical to the accused persons to depose against them and since it was not known to the IO that he had last seen the deceased in the company of the accused persons as such the explanation of the witness itself in my opinion 578 is found reasonable and credible as though he was resident of Delhi at that time, despite that when he was sure of the fact that accused persons were involved and identity of the deceased was established to him on 1/3/02, he immediately on the next day went to the PS but incidentally could not meet IO so he again went on 12/3/02 and again on 18/3/02 when finally IO met him and he gave statement to him in this regard. The argument of the defence counsel that during this period he did not inform the landlord about the incident or to Neelam Katara the complainant , this by itself can be no ground to reject his testimony which is otherwise found reliable, particularly, when the complainant was not known to him.
Moreover it depends from person to person how he reacts in a particular situation. If in the 579 present case, the witness decided to confide only in the IO, in my opinion that was a wisor decision, particularly for the reason it was considered to be a high profile case since accused Vikas Yadav is the son of Sh. DP Yadav the then MP who was considered to be a politically and financially influential person.
xiv) So far PW33 Ajay Katara is concerned he himself has explained the delay that he was waiting to be sure of the involvement of the accused persons and the identity of the deceased. He has also explained that he had gone to the PS on 2/3/02 , then on 12/3/02 but he could not meet the IO and again he went on 18/3/02 when he succeeded in meeting the IO and his statement was recorded.
xv) So far the statement of Gaurav 580 Gupta is concerned the IO has explained the delay that since he was busy in other work of investigation, as such he could not record the statement immediately after 17/2/02 as Gaurav Guipta was working in Faizabad. Thus he had sent SI JK Gangwar on 16/3/02 for recording his statement.
xvi) The delay in recording the statement of Sultan Singh has also been explained by the IO as after recovery of Tata Safari from AB Cotex at Karnal on 11.3.02, the PC remand was to expire at 2 pm and accused were to be produced before CJM Ghaziabad hence they were left with no time to record his statement on the same day.
xvii) So far PW32 Ct. Satender is concerned, he himself has explained the delay that till 4/3/02 he was not aware of any 581 incident.
xviii) So far PW 28Ct. Inderjeet is concerned who has not supported the prosecution case, claimed that he had come to know about the incident after 23 days and he has not given any explanation why he did not approach the IO and informed him. The reason appears to be obvious and it must be the same for which he became hostile ie either under pressure from the accused persons or some extraneous considerations.
xix) Hence in view of the authorities referred above cited on the point by the prosecution, I am of the opinion that the delay of recording the statement of the prosecution witnesses in the present case is not fatal to the prosecution.
xx) In view of the above discussions, the 582 prosecution has proved on record beyond any reasonable doubt that the accused persons abducted the deceased from Diamond Palace by deceitful means on the night of 16/2/02 and thereafter he was last seen alive in their company at Hapur Chungi at 12:20/12:30 am on the intervening night of 16/17.02.02 by PW 33. The dead body of the deceased was found at Shikarpur Road in burnt condition by PW23 at 9am on 17/2/02, as such circumstances also prove that the accused were the murderers. In the circumstances of the present case in my opinion no other view is possible.
➔ HOSTILE WITNESSES i) The defence counsel has also
argued that the statement of the hostile witnesses cannot be taken into consideration. It is settled law of the land that the evidence of prosecution 583 witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined. This fact cannot be lost sight of that the witnesses may on account of pressure exerted upon them try to support the accused persons. In the present case, particularly Bharti, Bhawna, Shivani, Bharat appeared to be under the influence of the accused persons / their family members since Bharti Yadav and Bhawna Yadav are the real sisters of accused Vikas Yadav and Shivani and Bharat Diwakar were the friends of Bharti Yadav. PW 11 Shivani was also close to the family of the deceased.
➔ ABSCOND i) The other circumstance on which the prosecution has laid great emphasis is that
both the accused Vikas Yadav and Vishal Yadav subsequent to the incident had absconded as they 584 were neither available at their residence nor at any other places where they could be expected to be available. The prosecution has claimed that since both the accused persons had absconded after the incident and got themselves arrested in PS Dabra (MP) under a minor offence U/s 25 Arms Act, adverse inference is liable to be drawn against them and this is another link in the chain of circumstances which point out conclusively the guilt of the accused persons. The prosecution has relied upon the following authorities:
1. 2006 (IV) AD (Cri.) (DHC) 135 (Delhi High Court) In the aforesaid case the appellant was accused of killing his wife and after the incident he was found missing from his jhuggi or at least his whereabouts were not known throughout the day ie 585 6.2.l996 and he was arrested only 7.2.l996. The Hon' ble High Court of Delhi keeping in view of his aforesaid conduct and the other circumstances proved by the prosecution upheld the judgment of the trial court convicting the appellant U/ 302 IPC.
2. 2006 (III) AD (Cri.) ( SC) 217 where again the appellant was accused of the murder of his wife and had absconded after the incident on 25.6.l996 and was apprehended on 3.7.l996. This circumstance was considered against the accused and it was held that the prosecution had proved the guilt of accused beyond doubt by chain of circumstantial evidence.
3. 1997 (8) Supreme 201 Supreme Court of India ''State of Karnataka Vs. Bhoja Poojari & Anr.'' It was held by the Hon'ble High Court as follows :586
the last circumstance which was '' pressed into service by the prosecution is the absconding of A1 & A2. To prove this circumstance, prosecution relied upon the evidence of PW9, the school secretary, who had stated that both the accused had left the watchman shed few months prior to 14/7/1979 without informing anybody. The evidence of PW27 the IO also confirms the fact that both the accused despite their best efforts could not be traced at their known places. This circumstance, in our opinion, is again very important link to show their guilty mind.''
ii) Whereas on the other hand in the defence it has been denied by both the accused persons that they had absconded. It is claimed by the defence that the prosecution has not 587 established the theory of absconding which is evident from the cross examination of the concerned investigating officer. It is further submitted that in any event the law is settled that absconding by itself is no offence and that in the present case there has been no absconding whatsoever. Defence has relied upon the authority reported in 1985(1) Crimes (Orissa) 1063 wherein the judgment of the Hon'ble Apex Court in Shankar Lal Gyarasilal Dixit Vs State of Maharashtra reported in AIR 1981 SC 765 was relied upon wherein the Supreme Court observed as follows: Our judgment will raise a legitimate query: If the appellant will not present in his house at the material time, why then did so many people conspire to involve him falsely? The 588 answer to such question is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions."
"T he evidence of a witness to the occurrence in a criminal case is not to be accepted merely because the defence has not been able to say as to why the accused has been involved or as to why a witness has come forward to depose against him or because the witness is a disinterested person. Disinterested evidence is not necessarily true and interested evidence is not necessarily false. In a criminal trial, a person accused of commission of 589 an offence is not to answer the question:
If not he, who?"
iii) As per Section 8 of the Indian Evidence Act : ''Any fact is relevant which shows or constitutes a motive or preparation for any act in issue or relevant fact."
" The conduct of any person an offence against whom is the subject of any proceedings, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto. '' Illustration I to Section 8 of the Indian Evidence Act is relevant in the context of the present case and is reproduced as follows: " The facts that, after the commission of the 590 alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime or attempted to conceal things which were or might have been used in committing it are relevant."
Illustration C to Section 9 of the Indian Evidence Act 1872 deals with the situation where a person accused of an crime absconds from his house soon after the commission of offence. The illustration is reproduced as follows: " A is a accused of crime.
The fact that, soon after the commission of crime, A absconded from his house is relevant under Sec. 8 as conduct subsequent to and affected by facts in issue."
The fact that, at the time when he left home, 591 he had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.''
iv) The relevant witnesses examined by the prosecution to prove the fact that the accused persons had absconded from their respective house after the incident are PW 34 SI JK Gangwar and PW 35 SI Anil Somania, IO of the case.
v) PW 35 SI Anil Somania testified that on 17.2.02 he received the investigation of the present case at 2 pm. He recorded the statement of HC Nempal Singh, complaint Mrs Neelam Katara, Bharat Diwakar and 592 thereafter went to Diamond Palace alongwith Bharat Diwakar and recorded the statement of Sandeep Goel, owner of the Diamond Palace and the security guard Jai Prakash Pandey. Thereafter he contacted the photographer engaged for taking photographs in the marriage and collected enlarged print of photograph of Nitish Katara, issued notice Ex. PW1/DA to the general public informing missing of Nitish Katara. Then he searched for accused Vikas Yadav and Vishal Yadav at their houses at Ghaziabad but none of them were found at their houses. He could not trace them at their houses in Ghaziabad Sec. 4 & 5 respectively. He further testified that on 18.2.02 he again went to the house of accused persons and searched the houses, but he could not trace either of the accused persons at their houses 593 nor Nitish Katara was found there. The witness proved these search memos as Ex PW 35/2 and Ex.PW 35/3 respectively. He further stated that thereafter he came to Delhi at Kothi No 15 Balwant Rai Lane, a house allotted to Sh DP Yadav (MP), father of accused Vikas Yadav but even there he could not trace the accused persons. He further stated that again on 19.2.02 he again searched for the accused at their houses and could not find them there. He further testified that he had also gone to Gurgaon Udyog Vihar in search of both the accused as he learnt that they had office there but he could not find accused persons there despite search. He learnt that there was a sugar mill pertaining to accused persons in Mukeria, Hoshiarpur Punjab and farm house at Anari District Badauin UP 594 and since these two places required to be searched by him, he sent SI AP Bharatwaz to Dhaneri Farm House in search of the accused persons. Again on 20.2.02 he visited the house of both the accused persons and found them locked.
vi) It is only then he moved an application Ex.PW 35/8 to the Court of CJM Ghaziabad for issuance of proceeding U/s 82/83 Cr PC against the accused persons. He obtained the warrants against the accused persons from the Court. Thereafter he tried to execute the same but could not arrest them. He further testified that he pasted notice U/s 82 CrPC at the house of accused persons .
vii) The witness was cross examined at length but his testimony could not be rebutted in any manner to the effect that he did not 595 conduct any search for the accused persons and they were not available at their house or other places where there was possibility of their being present. During cross examination the witness stated that the accused persons were residents of Ghaziabad at a distance of 3km from PS Kavi Nagar. During cross examination the witness was suggested that he had raided the house of the accused persons on 17.2.02 which he admitted to be correct. He also admitted that when the raid was conducted the mothers of both the accused persons respectively were present at their house and there was no male member. He stated that at that time WSI Anju Badhuria was with him though she was not made a witness in the present case. He further testified that he did not interrogate the mothers of the accused 596 persons nor did he record their statement He categorically stated that the copies of house search were furnished to them. The memo was signed by them, though it was not specifically mentioned therein that the copy of the search warrant was given to them.
viii) Perusal of house search memos Ex PW 35/2 shows that it is bearing the signature of Smt. Umlesh, mother of accused Vikas Yadav, whereas the search memo Ex PW 35/3 shows that it is bearing the signature of Smt Satyawati, mother of accused Vishal Yadav and this fact has not been challenged during cross examination of the witness nor these ladies have been produced in the witness box in defence to deny the signatures on these memos or to deny the fact that their house was not searched either on 18 or 19/02/02. So far 597 search of their houses on 17/2/02 is concerned, it is the defence who gave suggestions to the witnesses that it was searched on 17/2/02, hence house search on 17/2/02 in admitted.
ix) The argument of the defence counsel that these memos Ex. PW 35/2 & 3 are not bearing the signatures of WSI Anju Badhuria nor she has been cited as a prosecution witness ,this lead to the inference that she did not accompany the IO to the house of the accused persons. It is submitted that in the absence of male members in the house IO could not have searched the same in the presence of only female. However to this effect IO has not been suggested even once that WSI Anju Badhuria was not present alongwith him at the time of house search. Nor any female of the house has been 598 produced in defence to say so. Though the witness was suggested for house search at night permission of SSP or SP was required which was denied by SI Anil Somania, at the same time no such provision of law has been shown to the Court by the defence counsel that any such permission was required by the IO before conducting the house search at night. From the testimony of IO Anil Somania it is proved on record that the search for the accused persons at Diamond Palace, at their residence, in the markets and their possible hideouts at Rajnagar, Kavi Nagar and Shastri Nagar was made nor any such evidence in defence has been produced that they were at Ghaziabad.
x) Perusal of the report Ex. PW 35/8 shows that this was an application moved by SI Anil Somania to the CJM Ghaziabad seeking 599 issuance of process U/s 82/83 Cr PC against the accused persons on the ground that they were searched at their residence and other possible hideouts but they were absconding from their residence since after the incident and on this application Ld. CJM Ghaziabad issued NBW and process U/s 82 Cr.PC against accused persons on 20/2/02.
xi) Though PW 34 SI JK Gangwar has also claimed to have accompanied SI Anil Somania on 19.2.02 to Gurgaon Haryana in search of the accused persons and Nitish Katara. At Udyog Vihar in Gurgaon they learnt that there was an office of liquor business of the accused family but they could not find accused persons and came back. He further stated on 20.2.02 they had obtained process U/s 82 Cr PC and NBW from the Court of CJM against the 600 accused persons and went to Rajnagar Ghaziabad for execution of the warrants and the process but warrants could not be executed since accused persons were not at their house. The witness during cross examination admitted that he had not mentioned this fact in his statement U/s 161 CrPC that he had accompanied the IO on 20.2.02 to the house of the accused persons or about his visit to Udyog Vihar in Gurgaon in search of the accused persons. However, he stated that a search memo was prepared at Udyog Vihar Gurgaon.
xii) The perusal of the entire testimony of PW34 & PW35 shows that no suggestion was given to the witnesses on behalf of the accused Vikas Yadav that at the alleged time when he was last seen in the company of deceased, he was present at the house of DW1 Ashok Gandhi 601 attending the ring ceremony of his son Amit Gandhi and from there accused Vikas Yadav went to Karnal on the same night and on 17.2.02 after attending ring ceremony of DW 14 Manuj Diwan he left for Mukeria and after finishing his work in his factory he left for Bisoli on 18.2.02 in the evening and reached there on 19.2.02 and that from there he left for Allahabad and reached there on 20.2.02.
xiii) Similarly, no suggestion was given to the IO on behalf of accused Vishal Yadav that he remained at Ghaziabad till 19.2.02 and when he came to know he was being framed in this case he left for Allahabad on 20.2.02. It is pertinent to mention that both the accused did not disclose as to by which mode of travel they had reached Allahabad, no railway ticket or no air ticket has been produced on record in 602 defence.
xiv) The prosecution has drawn my attention towards the testimony of DW6 Sh. Neeraj Gautam, DW9 Sh. Bhairav Prasad Maurya, DW12 Sh Arvind Mishra, DW17 Sh. Sandeep Mishra, DW19 Sh Jai Singh, advocate and has claimed that the entire defence of the accused persons is false and fabricated and the witnesses are cooked . It is submitted that DW6 Sh. Neeraj Gautam was the counsel for both the accused in the initial stages of the present case and he alongwith Shailesh Sharma had moved an application Ex DW 6/1 at the instance of Rajender Yadav, the cousin brother of accused Vikas Yadav wherein he prayed that the police of Kavi Nagar was harassing both the accused persons, though they were not involved in any crime as per 603 their knowledge but still they requested that report be called from PS Kavi Nagar if any case was registered against them.
xv) The argument of Spl. PP for State on this application is that the contents of the application shows that both the accused were in Ghaziabad but they were avoiding their arrest. It is important to note at this stage that this application was moved on 21.2.02 when process U/s 82 Cr PC had already been issued against both of them by the Court vide order dtd.20/2/02. It is important to notice from the testimony of this witness that he did not move this application after being personally informed by accused Vikas Yadav and Vishal Yadav but at the instance of Rajender Yadav, the cousin brother of accused Vikas Yadav. The testimony of this witness to this effect that on 21.2.02 604 at about 10am in the Ghaizabad court premises accused Vikas and Vishal had called Rajender Yadav most probably from Allahabad on his cell phone in his presence does not inspire credence, as since DW6 Neeraj Gautam was their counsel they could straight away speak to their counsel or could ask Sh. Rajender Yadav to make them to speak to their counsel. It appears that this application was motivated to show that they were not absconding but were harassed by the police. It is further pertinent to mention that no application on behalf of the accused persons was ever moved for cancellation of the proceedings U/s 82 Cr PC . This witness categorically admitted that he never had any talk with the accused persons on 17.2.02 or before 24.2.02 nor he met them. He took somersault during the cross 605 examination with regard to his statement in chief examination that Rajender Yadav had a talk with both the accused in his chamber when he stated in answer to the court question as follows: " I do not know if any of the accused persons had called Rajender Yadav at that time as I have no personal knowledge about the same and Rajender Yadav did not tell me who had called him at that time , though he spoke to the person who called him for 5 /7 minutes." xvi) The prosecution has further drawn my attention towards the application Ex.PW6/7 dtd. 22.2.02 moved by advocate Shailesh Sharma on behalf of the accused persons before the CJM Ghaziabad that on account of illness they were unable to appear before the court and sought 3 days time for their appearance. 606 The Spl. PP for State has submitted that to the contrary the accused persons made statement U/s 313 Cr.PC that on 22/2/02 they were at Allahabad and if their statement U/s 313 Cr.PC is believed to be correct their application Ex.DW6/7 dtd 22/2/02 was only to mislead the court to show that they were in Ghaziabad. xvii) The accused persons have also produced in defence DW4 Pawan Kumar Diwan and DW14 Manuj Diwan. The evidence of these witnesses have already been discussed in the circumstance 'Alibi' and is therefore not repeated for the sake of brevity. The accused Vikas Yadav has claimed that he had not absconded but from Diamond Palace he had gone to the house of DW1 Ashok Gandhi to attend the ring ceremony of his son Amit and thereafter he went to Karnal to attend the 607 havan and ring ceremony. It is pertinent to mention that he did not give the name of DW4 Pawan Kumar Diwan and DW14 Manuj Diwan in his statement U/s 313 Cr.PC that he was to attend the ring ceremony of DW14 Manuj Diwan at their house at Karnal. Besides, to none of the prosecution witnesses particularly PW34 SI JK Gangwar and PW35 SI Anil Somania it was suggested by the counsel for accused Vikas Yadav that accused Vikas Yadav had not absconded and had a scheduled program till 19/2/02 ie to attend the function at Karnal on 17/2/02, his visit to Mukeria in the evening of 17/2/02 and his visit to his constituency Bisoli on 1819/2/02. As such the evidence of DW4 & DW14 to this effect does not inspire credence, particularly, when they kept quiet for 5 long years and did not inform any police authority 608 or any court that the accused persons had not absconded but were present at their house on 17/2/02.
xviii) The other witness examined in defence is DW11 Ombir Director Administration with New India Sucrose Ltd who appeared in defence of accused Vikas Yadav. He produced the register purportedly containing entries of the visit of senior officers in the company Oswal Sugar Ltd Mukeria. The register produced by him contained entries of senior officers wef 22/1/01 to 2/ 4/02. He testified that in the register at S.No. 11 dtd 17/2/02 at 19:10 hrs there is an entry to the effect that accused Vikas Yadav had visited factory Oswal Sugar Ltd Mukeria.
xix) In ans to the court question the witness stated that the signatures of the visitors were 609 never obtained in the register Ex.PW11/D and the entries were filled in by the gate clerk or shift incharge. During cross examination this witness admitted that after this entry at S.No.11 no other person entered the factory on that day and this was the last entry. This witness could not tell who was the gate clerk on that day. He admitted that the register Ex.PW11/D was not bearing the stamp of the company or signatures of any officers of the company. He also admitted that though accused Vikas Yadav was the Managing Director of Oswal Sugar Ltd there was no entry in the register Ex.PW11/D regarding visit of accused Vikas Yadav to the factory prior to 17/2/02. He further stated that accused Vikas Yadav did not sign any document on 17/2/02 when he visited the factory. He stated that Vikas Yadav left the factory at 610 7:40pm as per the register.
xx) The testimony of this witness does not inspire any credance for the reason that prior to the relevant entry on 17/2/02 in the register there is no other entry of visit of Vikas Yadav in the factory prior to 17/2/02 so the possibility of manipulating the aforesaid entry in the register Ex.PW11/D of his arrival at 7:10pm cannot be ruled out. Besides, the person concerned who made the relevant entry in the register has not been produced in the witness box to say that the relevant entry was in his hand and he had seen Vikas Yadav arriving in the factory on that day. The register produced does not bear any authenticity as it does not bear the signatures of any senior officers of the company. Besides, DW11 testified during cross examination that he had met Vikas Yadav in 611 the factory on 17/2/02 at 7:30pm, whereas, as per entry No. 6 in the register Ex.PW11/D he had left the factory at 4:45pm and his arrival in the factory again is recorded at 9:20pm. So he could not be present at the factory at 7:30pm to say he met Vikas Yadav at that time. His explanation that from the factory itself he entered the yard at 4:45pm is of no consequence when he has admitted in answer to the court question that the arrival and departure entry is made only at one gate. His explanation that when he entered the yard from the factory somebody must have informed the guard that he had left the factory and had entered the yard and thus his departure entry must have been made by the guard, is again to mislead the court. It is further pertinent to note that neither PW34 SI JK Gangwar nor 612 PW35 SI Anil Somania were suggested during their cross examination that accused Vikas Yadav on the evening of 17/2/02 was at Mukeria in his factory Oswal Sugar Ltd. xxi) The other witnesses examined by the accused persons ie DW 9 Sh Bhairav Prasad Maurya deposed about the presence of accused Vikas Yadav in the Bisoli Constituency in the SDM Office complex on 19.2.02 where all the candidates who had contested election from Bisoli Constituency were invited to furnish the list of their respective agents to be present at the time of counting. This witness testified that he alongwith his associate had visited the aforesaid complex since his relative Gainda Lal Maurya was one of the candidates and he had supported him on behalf of his Samaj community. He stated that accused Vikas Yadav 613 was also present there alongwith others. He also deposed that Arvind, dummy candidate of accused Vikas Yadav was also present there to give the names of his agents. The witness stated that he had requested the SDM not to provide any agent to Arvind since he had contested election independently and had withdrawn in support of accused Vikas Yadav. He further deposed that an altercation took place between supporters of Vikas Yadav and Gainda Lal Maurya and the dispute resolved around 2 pm. It is pertinent to mention that this witness has failed to produce any documentary evidence on record that Sh Gainda Lal Maurya was one of the contests and he was his relative or that Arvind was dummy candidate of accused Vikas Yadav and had contested elections independently and lateron 614 had withdrawn in support of the accused. There is also no document on record that on 19/2/02 SDM had called any meeting of the candidates to furnish the names of the counting agents to substantiate the claim of this witness. No such evidence from the office of concerned SDM has been produced. Besides, no such suggestion was given to PW34 SI JK Gangwar and PW35 SI Anil Somania that Vikas Yadav was in his constituency on 19/2/02. Nor his family members informed the police about his schedule. As such the defence through the testimony of this witness has failed to prove the presence of accused Vikas Yadav in Bisoli on 19.2.02. It is also important to note that accused Vikas Yadav in his statement U/s 313 Cr.PC stated that he reached Mukeria on 17/2/02 and left for Bisoli on 18/2/02 but he 615 did not explain as to where he spent the night of 1718/2/02.
xxii) The other witness examined by the defence to prove the presence of accused Vikas Yadav in the constituency Bisoli Badauin on 19.02.02 is DW 17 Sh Sandeep Mishra who testified that accused Vikas Yadav had met him on 19/2/02 at about 9 am in the election office at Bisoli as counting agents were to be appointed and the meeting was to take place in the office of SDM for the said purpose. He testified that when Vikas Yadav had gone to his constituency he had lost his bag which contained the photographs of the agents to be nominated and other documents relating to the election Vikas Yadav informed him about the lost of bag and he advised him to inform the concerned police station. He further stated that 616 accused Vikas Yadav had given a complaint in the PS Faiz Ganj Behata where he accompanied him and he gave a written complaint in the PS in his presence and obtained the receipt which he handed over to him to collect the bag, if recovered, against the receipt. He stated that the complaint is bearing the signature of accused Vikas Yadav and it was reduced into writing by someone else but he could not tell the name of such person. He stated that two complaint were prepared and both were handed over to the constable in the PS. One copy was received in the PS and on the other receipt was issued which is Ex.DW 17/A bearing his signature at point A. He further testified that the meeting held in the office of SDM on 19.2.02. xxiii) The aforesaid testimony of the witness 617 does not find corroboration from the statement of the accused U/s 313 Cr. PC to the effect that on that day he had lost his bag and in the company of DW 17 Sh Sandeep Mishra he had lodged the complaint with PS . Besides , the aforesaid complaint does not inspire any credence as there is no diary No. on the said complaint against which it was received in the PS. Besides, there is over writing in the date 19/2/02 on the top of the application as well as in the body of the application and with naked eye it can be seen that the date 10 was converted into 19, as such the evidence of this witness is no help to the accused Vikas Yadav that on 19.2.02 he was in his constituency and had not absconded. To the contrary in my opinion accused has led false evidence which amounts to be an additional 618 link in the chain of circumstance against the accused. It is important to note that DW 17 Sh Sandeep Mishra admitted that he did not produce the aforesaid letter Ex DW 17/A since 19.2.02 till he was examined in this court , before any authority or before any court and he answered bluntly that there was no such necessity. It is strange to note that this witness kept quiet for more than 5 years and suddenly he appeared before the Court alongwith the document to claim that Vikas Yadav was present in his constituency on 19.2.02. The defence did not even care to summon any police official to prove the receipt of the complaint Ex DW 17/A in the PS which as per DW17 was submitted personally by accused Vikas Yadav. Another important aspect in this regard is noted from the 619 document Ex. DW 17/A that it is not even bearing the address of the accused Vikas Yadav where he could be intimated by the police if the lost bag was recovered lateron. It is also seen from the complaint that there is no date affixed under the signature of accused Vikas Yadav. As such the possibility of manipulation of the aforesaid document cannot be ruled out. Accused Vikas Yadav in his statement U/s 313 Cr.PC stated that he left for Bisoli for attending ring ceremony at Karnal . He left for Bisoli on 18/2/02 evening and reached there in the morning of 19/2/02. There he came to know that he was being framed in some false case. (It is for this reason he concocted the application to the PS about loss of his bag). After that he left for Allahabad and reached there on 20/2/02 morning. He claims to 620 have informed his advocate Rajender Chaudhary at Ghaziabad about their will to surrender but his said claim does not find corroboration from the testimony of DW3 Adv. Rajender Chaudhary who did not utter a single word in this regard. xxiv) The accused Vikas Yadav in view of the discussion referred above has failed to create any doubt about the claim of the prosecution that he had not absconded since after the incident. Here the testimony of PW 38 Bharti Yadav during cross examination by Spl PP for State recorded on 30.11.06 is relevant. She categorically testified that on 17.2.02 she never met Vishal and Vikas at her residence. She further categorically stated that after Vikas and Vishal left Diamond Palace to his knowledge they did not return back on 16.2.02. She was put a specific question by Spl 621 PP for State during her cross examination , the question is reproduced as follows: ''Ques.: I put it to you that from the intervening night of 16/17.2.02 your brothers Vikas, Vishal remained absconding till 23.2.02 from home and did not visit the same, What have you to say? Ans: It is correct that I did not meet them during this period but I cannot say that they never visited the house during the same. '' xxv) The witness has given a very dicey answer and on one hand she admits that she did not meet them during the period from the intervening night of 16/17.2.02 till 23.2.02 and in the same breath she stated that she cannot say that they never visited the house during this period. It is pertinent to note that she did not say positively that accused persons were there in the house during this period. She being the 622 real sister of accused Vikas Yadav, it is not possible that she did not meet him for one week despite living in the same house and particularly in the circumstances of the case when a case had been registered against him for allegedly abducting Nitish Katara with whom she was planning to marry and it is obvious she must have made queries about him when she did not find him there.
xxvi) So far accused Vishal Yadav is concerned he has claimed in his statement U/s 313 Cr PC Question 92 which is as follows: Ques 92: It is further in evidence against you that on 19.2.02 you alongwith your co accused were searched by the IO in Udyog Vihar Gurgaon Mukeria Hoshiyarpur Punjab and Dhaneri Farm House District Bedkui (UP) but you were not found available at the aforesaid addresses. What have you to say? 623 Ans : I do not know if police had gone in search of me on the addresses referred above on 19.2.02. On that day I was present at my house at Ghaziabad.'' xxvii) However, he has also failed to lead any evidence on record to this effect. The house search memos Ex PW 35/2 & 3 are bearing the signatures of the mothers of both the accused and in these memos it is specifically mentioned that both the accused were not available at their residence. Neither the mother of accused Vikas Yadav nor of accused Vishal Yadav have appeared in the witness box to deny these memos and to claim that the accused persons were very much present in their house.
xxviii) The other witnesses examined in 624 defence are DW12 Arvind Mishra and PW19 Jai Singh, both practising advocates at High Court of Allahabad who deposed about the presence of both the accused persons in Allahabad on 20.2.02 and 21.2.02 where they had sought advise from them as well as Sr counsel Sh AD Giri about the present case and they were advised to surrender before the concerned court. Spl. PP for State has drawn my attention to the application moved in the Court of CJM Ghaziabad both the accused seeking exemption from appearance on 22.2.02 that they were indisposed and were unable to appear before the Court. As argued by Spl. for State both the accused persons cannot be present at two places at the same time ie 22.2.02 at Ghaziabad where the application for their personal exemption was moved and then at 625 Allahabad where they were present to seek legal advice. It is not the case of the accused persons that on 22.2.02 they had come back to Ghaziabad . The record speaks itself that on 23.2.02 in the earlier hours the accused persons were apprehended at the Dabra PS and were booked under Arms Act which arrest has been termed by the prosecution as stage managed. In these circumstances the testimony of both these DW 12 Arvind Mishra and DW 19 Jai Singh does not inspire credence. Particularly, when this defence was not put to prosecution witnesses nor accused produced any documentary evidence of their visit to Allahabad such like Railway ticket, Air ticket, etc. xxix) In view of the above discussion I am of the opinion that the prosecution has 626 proved on record beyond reasonable doubt that both the accused had absconded after the incident and were not available at their house nor at any other place where they were expected to be present from 17/2/02 till their arrest on 23/2/02 by Dabra Police and lateron they were arrested within the jurisdiction of PS Dabra MP. (The evidence relating to their arrest shall be discussed in the later part of the judgment). The fact of absconding of the accused persons is a strong circumstance against them and lends support to the other evidence produced by the prosecution. It provides an additional link in the chain of circumstances relied upon by the prosecution.
C. RECOVERY OF DEADBODY /
INQUEST PROCEEDINGS /
POSTMORTEM:
627
i) The relevant witnesses to the recovery of
the deadbody of an unidentified person on
17.02.02 are PW 23 Virender Singh, PW 4 Inspt Chanderpal Singh and PW 5 Ct Mudasar Khan.
ii) PW 23 Virender Singh testified that on 17.2.02 he was going to Khurja from his village. At about 9/ 9.15 am in the morning he was 1 km before Khurja when he saw one naked deadbody lying on the right side of the road in burnt condition. He stopped his jeep since there was a small crowd. He got down from the jeep and saw dead body lying near the road. Since he was possessing mobile phone, he made a call to Kotwali City and gave the information regarding the deadbody lying there. He further testified that after giving information he went to Khurja and returned 628 after one hour and saw that police was already there at the spot where the deadbody was lying.
iii) On the information of Virender Singh PW 23 regarding the deadbody lying near the road GD NO 12 Ex. PW 4/A was registered in the PS Khurja.
iv) PW 4 Inspt Chanderpal Singh testified that he was the incharge of the PS Khurja during Feb 2002 . On 17.2.02 at about 9 am an information was received on telephone at PS from one Virender Singh i e PW 23 that one deadbody was lying on Shikarpur Road. The information was registered vide GD No. 12 Ex. PW 4/A. After recording his departure in the same GD, he reached the spot alongwith his staff where the deadbody was stated to be lying. On reaching the spot he found that the 629 male deadbody was lying there in a pit which was adjoining the kacha portion of the road. He called the people from adjoining villages for identification of the deadbody but did not succeed. He testified that he got the deadbody photographed. He proved the photographs of deadbody as ExPW4/2 and 4/3 respectively. Under his instruction SI Chattarpal prepared panchnama of the deadbody Ex. PW 3/2A. The witness after going through the panchnama testified that as per the same the right hand of the deadbody was burnt with other parts but left hand was not burnt. He further stated that left hand fingers were not burnt. He further testified that the witnesses to the panchnama were Surender Singh, Jamil, Zarif, Devi and Mukesh, all public persons. He stated that deadbody after preparing inquest report was 630 sealed in a cloth and was sent for postmortem to mortuary HQ in sealed condition He further testified that he prepared the siteplan of the place of recovery of deadbody Ex. PW 4/4. He also explained over writings on the inquest report Ex PW 3/2A relating to time.
v) PW 5 Ct Mudasar Khan of PS Khurja City deposed on the lines of PW 4 Inspt Chanderpal Singh about recovery of deadbody from the spot on 17.2.02. He admitted his signatures at point B on panchnama Ex PW 3/2. He testified that he had received the sealed deadbody alongwith the documents and took the same to mortuary Bulandshahar alongwith Ct Mahender.
vi) Recovery of deadbody of an unidentified person on 17.2.02 from Shikarpur Road as such is not disputed by the accused 631 persons. From the testimony of PW 23 Virender Singh who spotted the deadbody in burnt condition and informed the police from his mobile phone which information was reduced into writing vide GD NO 12 Ex. PW 4/A and the testimony of PW 4 Inspt Chanderpal Singh and PW 5 Ct Mudasar Khan the recovery of unidentified deadbody on 17.02.02 from the spot stands proved as the testimony of all these witnesses in this regard was not subjected to cross examination by the counsel for accused persons.
➔ POSTMORTEM
i) The postmortem on the
unidentified deadbody of the deceased was
conducted by Dr Anil Singhal, CMO District Hospital Bulandshahar on 18.02.02. He was examined by the prosecution as PW 3. 632
ii) The deadbody was deposited in the mortuary Bulandshahar by PW 5 Ct Mudasar Khan alongwith Ct Mahender in a sealed cloth on 17.2.02. PW 5 Ct Mudasar Khan testified that on 17.2.02 the postmortem was not conducted and as such he alongwith Ct Mahender remained with the deadbody. He stated that on the next day 18.2.02 the doctor came to the mortuary for postmortem and he handed over the documents given to him by the seniors alongwith the deadbody to the doctor for postmortem. After the postmortem was conducted the deadbody, the inquest papers and postmortem report were handed over to him . He testified that the postmortem report Ex. PW 3/3 is bearing his signature at point A in token of his having received the documents and the body. He further stated that the 633 documents were handed over to Ct Pradeep Kumar who had come from the PS to the mortuary for giving them to the SHO. Further that he alongwith Ct. Mahender remained in the mortuary upto 21.2.02 till the Ghaziabad police reached the mortuary and took the deadbody from them.
iii) The witness denied during cross examination that he had not accompanied the deadbody or had made a false statement to this effect.
iv) PW3 Dr Anil Singhal who conducted the postmortem, during his testimony gave the details of his qualification. He stated that he was MS Orthopedic and did MBBS from KGMC Lucknow. He did MS from King George Medical College and joined services in Oct 1991. He was working in District Hospital 634 Bulandshahar since August 1997 and during his tenure had conducted various postmortems and submitted reports regarding the postmortems conducted by him and has also appeared as a witness in various courts.
v) Regarding the postmortem conducted on the unidentified deadbody he testified that he had received request for conducting postmortem vide request letter Ex.PW 3/1, alongwith 8 more documents which he signed on each page at point A and which are collectively Ex. PW 3/2 inclusive of the inquest report.
vi) He further testified that the deadbody was brought by Ct Mudasar Khan and Ct Mahender PS Kotwali Khurja Nagar. The deadbody was of unknown male person. He received the deadbody on 18.2.02 at about 3 pm 635 in sealed condition and seal was found intact. He started postmortem on the deadbody at 3 pm. He testified that on examination the length of the deadbody ( height) was found to be 5.9 inches, sole 9 inches, hair on the skull inches long charred.
a) External examination of the deadbody:
Muscular built, stout, burns all over the body except hand and feet, chest, abdomen and anterior wall lost, organs exposed and burnt, hair charred, small 1 /2 inches. Tongue protruded, face, neck and body black, no vesicles. Intestines congested, left elbow joint opened, no clothes on body, Pennis entirely charred and black.
b) Antemortem Injuries:
one lacerated wound 3 cms x 2 cms left side of head cavity deep, 7 cms above 636 left eye brow.
c) Internal Examination of the deadbody:
Skull fracture left frontal bone commuted, sutures at other places intact.
d) Membranes Congested e) Brain congested and lacerated correspond left side lacerated wound. Soft and pulpi. f) Base NAD g) Vertebrae Not open h) Spinal Cord Not expound i) Neck Haemotoma of about ½ ltr. present from skull cavity. j) Examination of thorex chest walls, ribs,
cartilages, plural, as noted burnt, right and left lung burnt blackist, on cutting inside yellowish, heart empty, abdomen wall burnt, cavity intestines alloys exposed, teeth 16x16, tongue 637 protruded, stomach empty, gall bladder full, urinary bladder empty, postmortem injuries: deep burns all over body, more on neck, chest, abdomen, abdomen peritoneum and thigh, lungs exposed, burnt black intestine, intestines alloys black, pennis half burn, thigh muscle exposed, no line or redness and vassicals and no sign of recurative process.
k) Death due to comma as a result of antemortem head injury & postmortem burn.
He testified that in his opinion death was due to coma as a result of antemortem head injury and burns were postmortem. Duration of death was about 2 days before the postmortem.
vii) He was put a specific question by the Spl PP for State which is reproduced as follows:
Q Was death possible in the night of 16/17.2.02 after 638 mid night?
The witness gave the following answers:
A: Yes. Death could be on the night of 16/17.2.02.
viii) The doctor proved the postmortem report as Ex.PW 3/3 .
ix) During the examination in chief of the doctor he was shown hammer EX P l to give his opinion. He testified that in his opinion there was less possibility of the injury on the deceased being caused by this hammer as the dimension of the hammer does not tally with the dimension of lacerated wound, the nature of fracture on the skull was comminuted fracture while the hammer would produce depression type of fracture. With the permission of the Court Ld Spl. for State was allowed to put 639 following questions to the doctor if there is an injury with hard object on the skull, it is not necessary that the wound should correspond with the dimension of hard object.
The doctor gave the answer.
A: It is true but it is written in the medical jurisprudence book that hammer would produce depression type of fracture.
The witness was again put another question which is reproduced.
Ques. Is it correct that commuted and depression fracture are both caused by hard object, the nature of the fracture depends upon the force used? A: It is partially correct. The nature of fracture i e depression fracture and comminuted fracture both are caused by blunt force. However the comminuted fracture is caused by blunt force applied with high 640 force with large surface area of the object and depression fracture is caused by hard object applied with high force surface area of the object to be small and with possibility of bone piece being separated and going to the skull.
x) He admitted it to be correct that as per postmortem conducted by him there was no bone piece in the cavity. He also admitted that he had not written the depth of skull cavity. It is stated that haemotoma was present in the cavity. The Spl PP for State had put very important following questions to the doctor:
Q: Can the possibility of injury being caused by Ex P l be ruled out?
A: It cannot be ruled out.
Q: Was the injury on the skull sufficient to cause 641 death in the ordinary course of nature ? A: Yes.
During cross examination by the counsel for the accused persons doctor testified that the postmortem was conducted in the mortuary in open and there was no arrangement in the mortuary like deep freezer. He further testified regarding the security of the dead bodies, that these are secured by the Constables who bring the dead bodies. The defence questioned him as to whether on that day more than one postmortem were conducted when the postmortem on the unidentified dead body was conducted . To this he answered that he may have performed one or two postmortem on that day but could not tell exactly. The question was also put to the witness regarding age of the 642 deceased and he stated that he could be 30 as well as 40 years and he further stated that his determination shows that it was not of a child or of an old person. He admitted that he did not perform a scientific test to determine the duration of death at the time of postmortem but since putrification had not started completely so he could assess the duration of death. He further stated that the brain was soft so he wrote approx 2 days and voluntarily stated that maximum period of death prior to postmortem could be 3 days. Regarding burns on the dead body to be postmortem in nature he stated that he observed so on the basis of clinical observation as no line of redness and vassicle was found which is normally present in case of antemortem burns. He further stated that he had checked the stomach and found it empty and that it was possible that 643 the body on which he had conducted postmortem had not taken food for 24 hours or more but this also he could not say with certainity. He further stated in cross examination that he had mentioned the dimension of the injury but not is shape and chances are that the wound of this nature can be caused when a person falls or hits a hard substance / stone.
A specific question was put to the witness which is reproduced as follows:
Q. In this case there is a cavity on the head at the place of injury and it is a depression wound, did you find any piece of bone in the skull? Ans. I did not find any piece.
The witness was suggested that such type of wound could be caused by a fire shot or by a projectile coming out of a fire arm which takes away the bone from the skull. To this the 644 witness stated that there is remote possibility of this kind of injury as the kind of injury produced by such weapon is gutter fracture. Regarding the use of weapon of offence hammer Ex.P1 he stated that there is less chance of injury being caused by hammer Ex.P1.
xi) The defence counsel has argued that PW3 Dr. Anil Singhal has categorically stated that there is less possibility of the use of the hammer Ex.P1 and there is greater possibility that hammer Ex.P1 could not have been used as weapon of offence in the present case. It is submitted that he has clarified that the fracture caused by the hammer is called signature depression fracture in which a depression is caused on the scalp wherein the bone falls in the cavity which is not so in the present case and that the fracture found on the 645 skull of the deceased in the present case is called comminuted fracture. He stated that the doctor made the statement on the basis of medical jurisprudence. No question was asked to the doctor through medical literature or otherwise to contradict his assertions. That the weapon of offence was shown to the doctor for the first time in the court. Further that no serological test was conducted or sought for to establish the blood group of the blood on the hammer which were mandatory to establish that the injury was caused by the said hammer.
The defence counsel have further argued that the time of death given by doctor was 2 days prior to the postmortem and therefore the death could not have been caused during the period from 12:30am on 1617/2/02 till 9am on 17/2/02 when the dead body was spotted. 646
xii) On the other hand the Spl. PP for State has argued that the experts evidence is always an opinion evidence and is not conclusive as per the provisions of Sec. 45 of the Evidence Act. It is submitted that the doctor has opined that the possibility of the injury to the deceased being caused by the hammer is less as the dimension of the hammer does not tally with the dimension of the wound. It is further submit that the doctor while giving such an opinion did not keep in mind the seat of the injury which is a very important factor as if the surface is flat and any hammer is used the dimension of the injury would be as per the dimension of the object hit with the hammer but in case where the surface is not flat but elliptical or curved, the size of injury would not be as per the hitting object but it would be as 647 per the area of the object coming in contact with the hammer. It is further submitted that the injury is on the left side of the head which is a curved surface and the doctor did not take this fact into consideration while giving such an opinion. It is further argued by the Ld. Spl.PP for State that hammer can be used as a weapon in three ways. The object can be hit by the hammer from the broader part of the hammer or the small flat end or the small pointed end and that the prosecution does not know how this hammer was used by the accused persons. It is submitted that in these circumstances, the opinion of the doctor that dimension of the hammer does not tally with the dimension of the injury and that there is less possibility of the injury on the deceased being caused by this hammer is fallicious. 648
xiii) The Spl.PP for State has also drawn my attention towards the testimony of PW3 Dr. Anil Singhal where he admitted that both the fractures comminuted and depression are caused by hard object and the nature of fracture depends upon the force use. He has further drawn my attention towards the statement of the doctor where he opined that the possibility of the injury on the person of deceased with this hammer cannot be ruled out.
xiv) It is further submitted that the doctor has given two conflicting statement before the court as at one stage he stated '' It is correct that as per the postmortem report there was no bone piece in the cavity and during his cross examination by the counsel for accused Vikas Yadav he stated in answer to a question of the defence counsel that he did not 649 find any piece of bone in the cavity but again in the later part of his cross examination he stated that he had not counted the fracture pieces but there were multiple pieces. It is submitted that the evidence of the doctor is confusing and he has not made it clear whether it was depressed fracture or comminuted fracture and whether there was bone pieces or not. Further that under such circumstances the opinion of the doctor is not conclusive and the court has to form its own opinion on the basis of the available material and the authoritative books on medical jurisprudence. To that effect he has cited an authority reported in 1999(5) SCC 96 whereby it has been held by the Hon'ble Supreme Court that :
" the opinion given by a medical witness need not be the last word on the 650 subject. Such an opinion shall be tested by the court if the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation.''
xv)Regarding the time of death as given by the doctor to be two days before the postmortem it is submitted that the doctor has also admitted during chief examination that death was possible in the night of 1617/2/02 after midnight of 16th.
xvi) I have considered the submissions of both the parties and have also scrutinised the testimony of PW3 Dr. Anil Singhal carefully. xvii) Sec. 45 of the Evidence Act deals with the opinion of Experts. The plain meaning of Sec. 45 is that the court in order to form an 651 opinion upon a point of science, as to identity of handwriting or finger impressions, can treat the opinion on that point of a person specially skilled in such science or in questions as to identity of handwriting or finger impressions, as relevant facts.
xviii) The opinion of such experts is admissible in evidence as relevant fact by virtue of Sec. 45 of the Evidence Act.
xix) At the same time the opinion of the experts is not always binding upon the court.
Evidence of an expert like any other evidence has to be appreciated in accordance with law and accepted if trustworthy.
xx) So far the postmortem reports are concerned sufficient weightage is to be given to the doctor who conducted the postmortem but giving weightage does not ipso facto mean that 652 each and every statement made by a medical witness should be accepted on its face value even if it is self contradictory as held in AIR 1999 SC2416 .
xxi) The court does not become functus officio to draw the conclusions from the material on record even if the expert has given an opinion or the finding.
xxii) As per the Modi's Medical Jurisprudence and Toxicology '' depressed fractures are those in which portions of fractured bones are driven inwards into the skull cavity. A depressed fracture when caused by a heavy instrument with a small striking surface is often localised, the shape may give valuable information as to the weapon used in inflicting it.'' ''In Comminuted fracture the bone is broken into two or more pieces. In the case of 653 comminuted fractures the area of comminution is frequently oval or circular in shape, the included bone may be broken into several pieces and one or more of these fragments are depressed. These injuries are almost invariably caused by blows with heavy instruments'' xxiii) The type of skull fracture that may result from violence depends on the shape of the skull, mobility of the skull, presence of scalp hair, coverings on the head like a cap, hat, turban etc, weight and velocity of the weapon, the amount of force, the type of appliance used like a blunt or cutting weapon, a pointed or edged object, the area large or small to which the force is applied, the varying on which its strength depends, the elasticity of the adult skull bone is limited, the outer or inner table of the skull may suffer damage differently, the 654 shape of the striking object may be marked on the outer table and secondary fissures may be seen extending from this area while the inner table could show more extensive damage and splintering. Blunt objects may cause depressed fracture at the point of impact.
xxiv) In view of the above referred material, I am of the opinion that the type of skull fracture depends not only on the nature of the weapon used but also on many other factors such like :
1) the shape of the skull,
2) the mobility of the skull,
3) presence of scalp hair,
4) velocity of the weapon,
5) the amount of force and
6) the type of appliance used,
7) the area large or small to which the force is 655 applied and
8) the varying thickness of the bone. xxv) It is also explained that since the elasticity of the adult skull bone is limited the outer and inner table of the skull may suffer damage differently.
xxvi) PW3 during his cross examination has admitted that the comminuted and depressed fractures are both caused by hard object.
However, it is claimed by him that comminuted fracture is caused by blunt force applied with high force with large surface area of the object. xxvii) Regarding depressed fracture it is stated that it is also caused by hard object applied with high force , surface area of the object to be small with the possibility of bone being separated and going to the skull. From the testimony of the doctor it is clear that the 656 injury on the left frontal bone of the deceased was a comminuted fracture as it is he who examined the injury and could say with more precision whether it was depressed fracture with bone going deep in cavity or it was comminuted fracture with bone broken in two or more pieces. Now what is left to be seen is whether it is caused by hammer Ex.P1. As argued by the defence counsel that the doctor stated that there is greater possibility that injury on the head of deceased could not have been caused by hammer Ex.P1, I find from the record that the doctor did not state so but to the contrary stated that there was less possibility of the injury being caused by the hammer Ex.P1 but at the same time in answer to the question of Ld. Spl. PP he testified that the possibility of injury being caused by Ex.P1 on the deceased 657 cannot be ruled out and he also admitted that the injury on the skull of the deceased was sufficient to cause death in the ordinary course of nature.
xxviii) As observed from the Modi's jurisprudence that the type of skull fracture depends on the shape of the skull and the amount of force and the type of appliance used like a blunt object, it is seen in the present case that the injury in question was on the left frontal bone 7cm above left eyebrow. The photograph Ex.PW11/5 of Nitish Katara shows that he had a broad forehead and as such it appears that the seat of injury was just near the end of the forehead and this seat of injury is curving towards the skull. So it is not possible that the entire base of the weapon would leave its marks in the form of shape of 658 the weapon at the said place. Besides, it is not necessary that injury would always correspond with the base of weapon. The dimension of the wound can be less or more than the base of the weapon used. So the opinion of PW3 that there was less possibility of the injury being caused by hammer Ex.P1 as the dimension of hammer does not tally with the dimension of the lacerated wound and the nature of fracture on the skull was comminuted fracture while the hammer would produce depression type of fracture, in my opinion is incorrect. In view of the Modi's Medical Jurisprudence and Toxicology, in my opinion both the comminuted and depressed fractures are caused by any blunt object. The hammer is a blunt object and it depends on the force used by the offender and the place of injury whether it comes out to be 659 comminuted fracture or depressed fracture. Therefore, in my opinion the testimony of PW3 that comminuted fracture cannot be caused by hammer Ex.P1 is of no consequence. It appears that PW3 either had no clear view of comminuted or depressed fracture as his testimony is quite confusing or he was under
any pressure and intentionally gave self conflicting statement. He has not denied that the injury on the person of deceased could not be caused in any circumstances by the hammer Ex.P1.He also could not deny that the comminuted fracture and depressed fractures are both caused by hard object and the nature of fracture depends upon the force used. I have not found in any medical jurisprudence that comminuted fracture cannot be caused by hammer. As per Modi's Medical Jurisprudence 660 both the fractures comminuted and depressed can be caused by blunt object and hammer is a blunt object. Besides, I have myself seen the hammer Ex.P1 again and compared the dimension of the injury with small flat surface of the hammer which are almost similar ie 3cm x 2cm, therefore it cannot be said that the injury on the left frontal bone of the deceased which was sufficient to cause his death, was not caused by hammer Ex.P1.
➔ Time of Death: i) In the present case the counsel for
accused has argued that as testified by PW3 Dr.Anil Singhal the death occurred two days prior to the date of postmortem which was conducted at 3pm on 18/2/02, as such the prosecution case that the deceased was last 661 seen in the company of the accused persons by PW33 Ajay Katara at 12:20/12:30pm is of no consequence.
ii) It is also submitted that the dead body on which the postmortem was conducted was not of Nitish Katara who was seen in the company of accused persons at 12:30 midnight as per the prosecution.
iii) In this regard I have gone through the testimony of the doctor again who has given a conflicting statement. In his chief examination he testified that duration of death was 2 days before postmortem. Thereafter in reply to a specific question of the Spl.PP as to whether the death was possible on the night of 1617/2/02 after midnight, the doctor stated ''yes, death could be on the night of 1617/2/02.'' The testimony of the doctor in this regard 662 during cross examination by the defence is also relevant to the effect where he stated that he had not mentioned in the report that anything was in the intestines upto rectum since he checked stomach and found it empty. He further stated it is possible that the body on which he conducted the postmortem might not have been taken food for 24 hours or more. He stated that he did not check intestines, so he could not say whether there was any acid formation or not. A specific question was put by the court to the witness, as to after how many hours of taking food stomach becomes empty.
The answer of the doctor is as follows :
'' In normal conditions stomach becomes empty within 6 hours of taking food. ''
iv) He admitted it to be correct that 663 when a person dies and his stomach is empty , it means that he had taken food beyond 6 hrs of his death. He further stated that his statement that deceased person might not have taken food within 24 hours or more, he meant to say that he might have had also taken food within 24 or 40 hours but he had not taken food within 6 hrs of his death. To this effect again the defence counsel has submitted that since as per the prosecution case deceased had taken meals at 11:30 / 11:45pm therefore if his intestines were found empty at the time of postmortem it means the death of the deceased took place after 6 hours of his taking the meals that was around 6am in the morning of 17/2/02.
v) It has been held by the Hon'ble Supreme Court in the authority reported in 664 2004(3)JCC1596 that the time of death can be ascertained to some extent from the contents of the stomach, bladder and the intestines and rate of emptying of stomach varies in healthy persons which is depended on the consistency of food, motality of the stomach, osmotic pressure of the stomach contents, quantity of the food in the duodenum, surroundings in which food is taken, emotional factors and residual variations and that time varies in a man from 2.5 to 6 hrs. In this authority reference has been made to Modi's Jurisprudence and Toxicology IInd Edition Pages 246 and 247 wherein it has been noted that the conditions producing changes vary so much in each individual case that only a very approximate time of death can be given. 665
vi) It is also held in the Apex Court in the authority reported in 2004(3) Supreme 547 that ''U/s 45 of Evidence Act, medical science is not yet so perfect to determine exact time of death nor can the same be determined in a computerised or mathematical pattern so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. ''
vii) As held in the Nihal Singh & Ors Vs State of Punjab AIR 1965 SC 26 , it was held by 666 the Hon'ble Apx Court that :
'' the time required for digestion may depend upon the nature of food, and the time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors.''
viii) In the present case, the doctor has opined that the stomach of the deceased was empty. As per the prosecution the deceased was last seen in the company of PW33 at 12:20 / 12:30 am on the night of 1617/2/02. As per PW25 Bharat Diwakar the deceased was taking meals with them at 11 /11:15pm when he was taken away by accused Vishal Yadav. There is 667 no evidence on record that the deceased had taken complete meals before he left Diamond Palace in the company of accused Vishal Yadav which could have taken atleast 6 hrs to digest before his death. Moreover, the present case is based on circumstantial evidence of his being seen lastly in the company of accused persons by PW33 Ajay Katara and it is only within the special knowledge of the accused persons at what time he was killed. The medical opinion as to the time of death on postmortem examination based on the degree of digestion of stomach contents is unreliable. It depends on many factors effecting one's digestion and also on the fact when the deceased took his last meals, what articles of food was taken, age of the person and his power of digestion. It is admitted case of the prosecution that deceased 668 was a young boy of aged 25 years and must be having a good power of digestion. Particularly, in the present case when there is no evidence that he had taken his complete meals before he went alongwith Vishal Yadav the accused, it can be safely presumed that whatever he ate must have been digested in less than 6 hrs as claimed by Dr. Anil Singhal. Therefore, no benefit of this opinion of the doctor can be given to the accused.
ix) I am conscious of the fact that before the court places any reliance on the opinion of the expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory. In my opinion the testimony of PW3 Dr. Anil Singhal who made self conflicting statements regarding the injury suffered by the 669 deceased causing his death and regarding the time of his death, I find his statement is not free from bias. However, as observed above it has been proved on record that the injury on the left frontal bone of the deceased which was sufficient to cause his death in the ordinary course of nature was result of hammer Ex.P1.
This fact also finds support from other circumstances proved by the prosecution ie recovery of the hammer Ex.P1 at the instance of accused Vikas Yadav in furtherance of his disclosure statement Ex.PW35/16 and the human blood found on the hammer Ex.P1 vide CFSL report Ex. PW35/57. Thus, these three circumstances have also been proved on record conclusively by the prosecution against the accused persons.
D. IDENTIFICATION OF DEADBODY 670
i) The prosecution in support of its claim that the unidentified deadbody recovered on 17.2.02 from Shikarpur Road was of deceased Nitish Katara has relied upon the testimony of PW 2Chet Ram Finger Prints Expert, Finger Print Bureau, Malviya Nagar, PW 8 Dr TD Dogra , PW 10 Dr. Sanjeev Lalwani, PW 17 SI RC Makholia, PW 30 Smt Neelam Katara, mother of Nitish Katara, PW34 SI JK Gangwar, PW35 SI Anil Somania and PW39 Nitin Katara, the brother of the deceased.
ii) Before the deadbody could be identified through the science of finger prints and DNA, PW 30 Mrs Neelam Katara had identified the unidentified deadbody to be of his son Nitish Katara on 21.2.02. She testified she went for identification of the deadbody on 21.2.02 and she was taken by the police of Kavi Nagar to 671 a place beyond Khurja which she was told to be a mortuary . She stated that she saw a deadbody of her son lying on the straw in burnt condition. She saw his intestines open since skin had got burnt. She further stated that when they opened the door of the cabin , the first thing she saw was foot and within second of seeing the foot she recognised that it was body of her son. She further stated that after recognising him from his foot, she saw his left arm which was not completely burnt and was having colour of the skin of her son . Her son was quite tall about 5.9 inches but despite his tallness he was having short hand and she used to tell him that though he is tall his hands were of the size of her hands and they used to put hand on each other. She stated that after seeing the left arm unburnt she put 672 her hand on his hand and found it to be of the same size which confirmed the identification of her son. She with great confidence testified that she could identify him as a mother can identify his child whose face is smeared in colours in Holi.
iii) During cross examination by the counsel for the accused persons she denied the suggestion given by Sh KN Balgopal, counsel for accused Vikas Yadav that the left hand fingers of the body which she had identified as of her son, were bent inside. She voluntarily stated that they were absolutely straight as she had put her palm over the palm of her son. She categorically stated that she told the IO that deadbody was of her son. The witness was put a specific question as follows:
Q: When you went to see the body for identification 673 was the body emitting smell and was decomposed? A: When I saw my son's body I had touched his body. I saw one foot. I wanted to see other foot but other foot was wrapped in some thing as it was completely burnt. I saw his face to identify him. His one hand was bent while other was straight. The body was definitely giving smell. Skin of the body was burnt. I do not know what stage of decomposition it might be. But it was identifiable.
iv)The defence counsel tried to assail the testimony of this witness on the ground that in her affidavit before the Hon'ble High Court in writ Petition No. 247/02 Under Article 226 of the Constitution of India she stated that she visited Khurja on 17.2.02 for identification of a human body alongwith the police of Ghaziabad, However, she denied. The copy of the Writ Petition, as referred above, was placed on record by the defence counsel. Perusal of the 674 same shows that it appears to be a typographical error regarding the date of her visit to Khurja as 17.2.02 as in the said affidavit even the date of the arrest of the accused persons is wrongly mentioned as 22.2.02 whereas the accused persons were arrested on 23.2.02 at Dabra, thus this discrepancy is of no consequence . Moreover, there was no reason for her to tell lie to this score.
v) Besides PW 39 Nitin, her son also corroborated her testimony to the effect that they had gone to Khurja for identification of the deadbody of the deceased on 21.2.02 and he was not cross examined by the counsel for both the accused to this effect nor any suggestion was given to him that they did not visit mortuary at Khurja on 21.2.02 or instead 675 they visited the place on 17.2.02. Besides, PW 34 SI JK Gangwar also corroborated the statement of PW 30 Mrs Neelam Katara to this effect. He testified that on 21.2.02 SO Anil Somania sent him to mortuary of Bulandshahar where the deadbody recovered from Khurja City had been kept. He was sent there for protection of the deadbody . While he was there protecting the deadbody, PW35 SO Anil Somania, PW 30 Neelam Katara and PW 39 Nitin Katara and one Ajay Prasad , relative of Neelam Katara reached mortuary at about 11am. PW 30 Neelam Katara and PW39 Nitin Katara saw the deadbody and identified it to be of Nitish Katara.
vi) The testimony of PW 34 SI JK Gangwar was not discredited during his cross examination as no suggestion was given to 676 him that either Neelam Katara and Nitin did not identify the deadbody or that they had gone to the mortuary on 17.2.02 and not on 21/2/02. To the contrary it is seen in the cross examination of the witness by Sh SK Sharma, counsel for accused Vishal Yadav, that he was suggested that before he reached the mortuary in Bulandshahar the deadbody had not been identified. As per the testimony of this witness he had gone to the mortuary for the protection of the deadbody only 21.2.02, as such through this cross examination it is deemed to be admitted by the defence that the deadbody was not identified before 21.2.02.
vii) PW 35 SI Anil Somania is the IO of the present case. He too corroborated the statements of PW 30 Neelam Katara , PW 37 Nitin Katara and PW 34 SI JK Gangwar with 677 regard to the identification of the deadbody by PW 30 Neelam Katara and PW 37 Nitin Katara on 21/2/02. He testified that on 21.2.02 he alongwith Neelam Katara, Ajay Prasad and Nitin Katara went to the mortuary of Bulandshahar and reached there at 1l am SI JK Gangwar was already there with two constables. Neelam Katara and Nitin Katara identified the deadbody lying at the mortuary as that of Nitish Katara who was kidnapped on the night of 1617/2/02. The said testimony of the witness has not been disputed or rebutted in any manner by the defence as he was not subjected to cross examination in this regard. I have no hesitation to hold that in view of the unrebutted statement of Smt Neelam Katara it stands proved on record that the deadbody of unidentified person was of 678 Nitish Katara only which she identified on the basis of his foot and by putting her hand on the left hand of the deceased. No suggestion was given either to PW30 or PW39 that dead body was not of Nitish Katara. However, despite the fact she had identified the deadbody. She told the police to get the other test like DNA etc to be carried out so that her identification was not questioned, although she was 100% sure. She so stated in her cross examination by the defence counsel Sh. KN Balgopal on behalf of accused Vikas Yadav.
viii) As a consequence IO moved an application Ex PW 35/9 to the CJM
Bulandshahar for seizure of the deadbody for the purpose of DNA finger printing. Perusal of the application shows that it was moved with a prayer for transfer of the deadbody to AIIMS 679 New Delhi for preservation for DNA finger print examination. PW 35 SI Anil Somania testified that he received the deadbody from the Bulandshahar mortuary on 21.2.02 consequent to the order of CJM and brought the same to AIIMS hospital and deposited in freezer No. 8. The order of the CJM to this effect has been proved on record as Ex.PW 8/C. Both the defence counsel agitated a lot as to why the deadbody was sent to AIIMS for DNA finger printing as the incident had taken place in UP and as such these tests ought have been conducted in UP only. It is alleged that it was due to the pressure from the complainant party the deadbody was sent here to Delhi to influence the investigation. However, I find no force in the argument as order Ex. PW 8/C of the CJM Bulandshahar UP is absolutely clear 680 wherein it is observed that there was no facility available in District Bulandshahar to preserve the deadbody for DNA examination. Considering that the deadbody was yet to be identified as such it was handed over to IO of the present case to deposit it with AIIMS New Delhi for DNA finger printing and IO was further directed that if the deadbody was not found to be of Nitish Katara it should be returned to PS Khurja District Bulandshahar. As such, I find that there was no such influence from the complainant side upon the police in getting the deadbody transferred from District Bulandshahar to AIIMS at Delhi but it was the requirement of the hour since there was no facility available in the District to preserve the deadbody for conducting DNA finger printing. In the present case the IO was 681 cross examined by the defence counsel Sh KN Balgopal to the effect that there is no facility of preserving the dead body for a longer time in Bulandshahar , however, this question was not put to the doctor who could have answered the same with more precision firstly for the reason he is a doctor and secondly he was conducting postmortem at Bulandshahar mortuary and was more aware of the conditions of the mortuary. Nodoubt, the deadbody was already identified by Neelam Katara, the mother of the deceased but to be sure scientifically also the deadbody was required to undergo DNA test. Besides, during investigation IO also obtained the finger prints from the unidentified deadbody for comparison with the finger prints of Niish Katara from the record his driving licence maintained in the office of licencing authority 682 RTO Sarai Kale Khan.
➔ FINGER PRINTS i) Hereafter I shall discuss the evidence
led by the prosecution with regard to the finger prints of the deceased.
ii) The relevant witnesses with regard to the finger prints of the deceased are PW 2 Chet Ram, Finger prints Expert and PW 35 SI Anil Somania , IO of the case.
iii) Advocate Sh. KN Balgopal, counsel for accused Vikas Yadav has submitted that PW 2 Chet Ram as per the testimony of SI Anil Somania was called to take the finger prints of the unidentified deadbody lying at AIIMS for comparison with the admitted finger prints of Nitish Katara collected from the record of his driving licence from RTO Sarai Kale Khan. It 683 is submitted that as per the Apex Court the comparison of finger prints is a perfect science. However, it is submitted that to prove it is a perfect sign then one must follow the scientific procedure fairly and not fraudulently. It is submitted that in the present case the prosecution has failed to prove on record from the report of finger prints expert Ex PW 2/6 that the unidentified deadbody was of Nitish Katara . It is submitted that as per the testimony of PW 2 Chet Ram he had taken the finger prints of all the five fingers of left hand from the deadbody in AIIMS which are Ex. PW 2/1. He has further claimed to have collected the finger pints of Niish Katara from the RTO Sarai Kale Khan from the record of his driving licence which are Ex. PW 2/2 and Ex.PW 2/4 is the enlarged copy of the left index finger of 684 Nitish Katara collected from RTO Office. It is submitted that during the course of his examination in chief on his request he was directed to produce the enlarged print of the finger prints obtained from the deadbody i e Ex PW 2/1. He produced the enlarged print before the Court as Ex. PW 2/3 but he stated that this print he had prepared not from the set of finger prints Ex PW 2/1 but from the another set of finger prints which was available in his file. The defence counsel has argued that the prosecution has failed to prove on record that the set of finger prints EX PW 2/C1 which was in the file of PW 2 Chet Ram were taken from the unidentified deadbody and that the finger prints Ex PW 2/1 and Ex. PW 2/C 1 were the same. It is further submitted that the prosecution has also not 685 produced any evidence on record that PW 2 Chet Ram had infact collected the finger prints of deceased Nitish Katara from the office of RTO with which the finger prints obtained from the deadbody were compared. Moreover, the witness submitted a bald report Ex, PW 2/6 without giving any reason of his arriving at the conclusion that as to how the finger prints obtained from the RTO matched with the finger prints of the deadbody . It is further submitted that Ex PW 2/2 the finger prints which the prosecution claims to have been collected from the RTO clearly shows that another finger prints impression in the background which means that this finger print was taken on some other finger print impression. He has further assailed the testimony of PW 2 Chet Ram on the ground 686 that he has only shown the similarities in the two sets of fingers and not the dissimilarities. Further the enlarged prints produced by the witness in the Court were incomplete. The comparison report Ex PW 2/5 filed by the witness in the Court as per the directions does not inspire any credence as per the defence counsel as it was not based on the comparison of the finger prints Ex.PW 2/1 collected from the deadbody of the deceased and the admitted finger prints of Nitish Katara. It is further submitted that it has come on record that even the finger prints taken from the file of the witness was not enlarged entirely but only a portion of it was enlarged and in such a event it is not possible to point out the fundamental differences. It is further submitted that an attempt was made by the defence 687 during the cross examination to compare the finger prints taken from the mortuary with the finger prints maintained by the IO in the main file but the defence was not permitted to compare the same. It is submitted that though finger prints science is a perfect science but if unscientific and fraudulent methods are resorted to carve out a fabricated report then definitely there is nothing scientific in it.
iv) Advocate Sh SK Sharma counsel for accused Vishal Yadav vehemently argued that whenever a deadbody unclaimed and unidentified is recovered the incharge of the PS shall first of all make all the efforts to take finger prints of the body to compare with the finger prints of the deadbody for the identification and all efforts shall be made to find out the person who could help in 688 identification of the deaddody. Thereafter the deadbody should be sent for postmortem and then disposed off. He has drawn my attention to Rule 135 Chapter XII under the heading Inquest Proceedings & Treatment of wound: The finger prints of corpse should be taken. Ordinarily there is no much difficulty in taking the finger prints of the corpse but sometimes the fingers are wrinkled etc in that case skin should be removed from the fingers and place each in a different envelope and then sent to the finger print expert for opinion.
v) Rules 135A : When a corpse recovered by the police is unclaimed, the police official should try to find out the faith to which the deceased belongs to dispose off the same as per the faith and religion of the corpse. If the 689 body is unclaimed then the State Officer Supdt may hand it over to the Supdt. Medical College for autopsy.
vi) It is further submitted that this witness during cross examination by Sh KN Balgopal stated that he saw left hand of the body of the deceased safe. He did not pay attention to the palm. He further stated that he could not remember if the fingers of the deceased were in bent condition. It is argued that then it was duty of the IO to request the MO to examine the corpse and to take out the skin from the fingers and keep it in different envelopes and then sent the same for finger prints expert opinion. He has further argued that there is no explanation as to why after the postmortem was conducted on 18.2.02 the deadbody was not disposed off and why it was 690 kept in the mortuary till 21.2.02 on which date it was handed over to SI Anil Somania with the order of CJM Bulandshahar to deposit the same with AIIMS hospital at Delhi. It is argued by the defence counsel that whether the deadbody belonged to Nitish Katara or not was not weighing in the mind of police but what weighed in their mind was that they had come to know about recovery of dead body and they were trying to delay the matter so as to make a case against the accused persons.
vii) On the other hand Spl PP for State has argued that PW 2 Chet Ram, the finger prints expert deposed that he collected the finger prints of the deadbody as per the procedure and compared with the finger prints record Licencing authority RTO and came to the conclusion that the finger prints of the 691 deadbody were identical to the finger prints recorded at the licencing authority RTO. Further that PW 2 Chet Ram has categorically stated as follows:
" I found that the number of ridges in both the finger prints of deadbody and prints of licencing authority were same. The ridge characteristics found by me in two finger prints were identical in relative position. I considered these characteristics sufficient to arrive at conclusion that two finger prints were identical."
viii) It is submitted that this witness was thoroughly cross examined by the defence but nothing material came out to discredit the testimony of this witness. It is further submitted that nothing was brought by the defence to suggest that he was under the influence of either 692 IO or the complainant. The prosecution has relied upon authorities reported in: AIR 1978 SC page 1183, AIR 1979 SC page 1708
ix) In the light of the arguments of the defence and the prosecution the testimony of both the witnesses PW 2 Chet Ram an PW 35 SI Anil Somania is to be appreciated.
x) PW 35 SI Anil Somania testified that on 22.2.02 he had called Chet Ram, Finger Print Expert from Delhi Police to the hospital to take the finger prints of the deadbody brought by him to AIIMS hospital. He testified that he took the fingers prints and the one set of finger print if ExPW2/1 which bears the signature of the witness at point D. He further testified that standard finger prints of Nitish Katara was obtained from RTO office Sarai Kale 693 Khan by Chet Ram since mother of the deceased had informed that the driving licence of Nitish Katara was made at Sarai Kale Khan, Transport Registration Office.
xi) PW 2 Chet Ram, the finger prints expert testified that he was working as finger prints expert with finger print Bureau Delhi since Jan 1991. He had taken 3 years training in finger prints comparison in the Bureau itself. He claimed to have examined more than 500 cases during his tenure of comparison of finger prints and to have appeared as a witness in more than 100 cases in Court.
xii) He further stated that on 22.2.02 he was directed by Director, Finger Prints Bureau that deadbody was lying in AIIMS mortuary and he should obtain the finger prints. On receiving these directions, he went to AIIMS 694 hospital where SI Anil Somania of PS Kavi Nagar Ghaziabad and SP City, Sh.AK Raghav met him. They identified the deadbody. He alongwith the police officials went to the doctor Incharge mortuary AIIMS. The deadbody was taken out of freezer No. 8 by the sweepers of the mortuary . Thereafter he took finger prints of all five fingers of the left hand of the deceased. He proved these finger prints as Ex. PW 2/1 bearing his signature at A and of Anil Somania at point B and one another witness at point C.
xiii) He further testified that on same day they went to Sarai Kale Khan Transport Authority and requested the authority staff to take out the record of driving licence of Niish Katara son of Nishit Katara, R/o 7 Chemsford Road, New Delhi. Record was taken out on 695 their request and enlarge print out of the left hand and right hand index finger was given to them . The print out of left index finger taken from the record of the transport authority is Ex.PW 2/2. It is stated that it was taken in his presence and was bearing his signatures and endorsement at point A to A. He further testified that after receiving the enlarged print out he compared the left index finger from the enlarge print out with the left index finger of the deadbody and within 10 minutes he told that left index finger of the deadbody tallied with the finger print on the licence of Nitish Katara. He stated that he could compare the finger prints taken by him of the deadbody with the finger print taken from licencing authority without enlargement. He described the similarity on the basis of which he came 696 to the conclusion that the said two finger prints tallied with each other. He stated that first of all he compared pattern of the two finger prints and found it to be the same and next thing to be looked was number of ridges and whether the number were equal or not He testified that number of ridges in both the finger prints of the deadbody and prints of licencing authority were same. Further that the ridge characteristics found by him in two finger prints were identical in relative position and he considered these characteristics sufficient to arrive at conclusion that two finger prints were identical.
xiv) He further stated that he could mark the identical points for the purpose of showing to the Court. The witness was thus directed to prepare the enlarged print of the 697 finger prints of the deadbody and to mark the identical points so that the comparison was more visible even to the Court with the finger prints taken from the authority. He was directed to produce three copies of the enlarged print. The witness was given two days time for the said purpose. The witness thereafter produced the large photograph alongwith the comparative chart and his detailed report of the comparison of two finger prints , one of the deadbody and other from the transport authority, of Nitish Katara. He proved the enlarged computer print of the index finger of the deadbody as Ex.PW 2/3. The enlarged computer print of the printed thumb impression of Nitish Katara from the driving licence record as Ex PW 2/4 and the original was already on record as Ex. PW 2/2. He stated 698 that for saying that the two finger prints are of the same person, there should be minimum 8 similarities which could be pointed out from the finger prints . He marked 8 similarities in the two finger prints by red ink marking them as serial NO 1 to 8. He stated there may be more similarities by which he meant ridge characteristics. The chart of comparison of the ridge characteristics prepared by him under the directions of the Court is Ex. PW 2/5. He gave the illustration about the number of ridge counting between any two points marked by him by describing there were 5 ridges between point NO 7 and 8 marked by him in both the Ex.PW 2/3 and 2/4 respectively. Between point No. 5 and 7 there is one ridge in both the exhibits. It is stated that the finger print which was enlarged by him is Mark as point X 699 on Ex.PW 2/1. He voluntarily stated that he had prepared two sets of finger prints from the deadbody, one of which was available with the court record and the other was in his file. He stated that he got the enlarged finger print of the said from his file . He further stated that in his opinion the finger impression of any two persons in the world cannot be similar and each person has unique finger print. He proved his report Ex. PW 2/6 counter signed by his officiating director Sh. Rajesh Rohilla at point B and the same was forwarded to the SP Ghaziabad vide letter Ex. PW 2/7.
xv) The defence counsel has submitted that the postmortem on dead body was conducted on 18/2/02 but there is no explanation as to why it was not disposed off as the identity of the same had not been 700 established and as per Rule 135A of UP Police Rules after the postmortem the dead body has to be disposed off. It is submitted that in the present case the dead body was not disposed off to falsely implicate the accused persons . However in my opinion this argument has no force as PW30 Mrs. Neelam Katara or the police officials had no enmity with the accused persons to falsely implicate them, instead of searching for the dead body of Nitish Katara and the real culprits. The arguments of the defence counsel that the fingerprints were not obtained in terms of Sec. 135 Chapter XII under the headings ''Inquest proceedings and treatment of wounds'', may be this was a lapse on the part of the investigating officer of the case registered U/s 302 IPC with PS Kavi Nagar but for this no benefit can be given to the 701 accused persons as it is settled law that faulty investigation does not give any benefit to the accused persons. However, so far the other argument of the defence with regard to the admissibility of the evidence of the finger prints in the present case is concerned, I fully agree to the fact that in the present case no evidence has been produced by the prosecution that deceased was possessing any driving license. No evidence has been produced from the licensing authority Sarai Kale Khan to this effect, particularly, when PW 2 Chetram had collected the finger prints record from the aforesaid office. Besides, this witness has admitted in his cross examination that he did not move any application in the licensing authority to obtain the record of finger prints of deceased Nitish Katara. In these circumstances, it was all the 702 more necessary for the prosecution to have summoned the relevant witness from the authority to prove that the finger prints from the record of driving licence of Nitish Katra was collected by PW2 Chetram. The other anomaly in the testimony of this witness was found that when he was directed by the Court to produce the comparison chart and he produced the comparison chart Ex.PW2/5 and explained to the court that this chart he had prepared not from the finger prints Ex.PW2/1 collected from the dead body of unidentified person in AIIMS which was placed on record by him but from another set of finger prints which was lying on his own file. No doubt during the cross examination of this witness , with the orders of the court he placed on record the said set of finger prints from the dead body on the court 703 record which is Ex.PW2/C1. However, the prosecution has no where proved on record that the finger prints obtained from the dead body which are on record as Ex.PW2/1 and were originally relied upon by the prosecution and the set of finger prints Ex.PW2/C1 produced by the witness from his own record were same and that PW2 Chetram had infact obtained the aforesaid other set of finger prints Ex.PW2/C1 from the deadbody. It is important to note that PW35 SI Anil Somania who was present at the time when the fingerprints were taken by PW Chetram from the dead body of deceased testified during cross examination that he had taken only one set of finger prints from the dead body which are Ex.PW2/1. It is further important to note that originally PW Chetram did not file on record the comparison chart and 704 simply gave his report Ex.PW2/6 to the effect that as a result of comparison of the left index finger impressions of the unidentified dead body were compared with the specimen left index finger impression of Nitish Katara available with the Deptt of Transport, Govt of NCT, Delhi and were found to be identical. He did not furnish the comparison chart alongwith the report. The comparison chart Ex.PW2/6 which he furnished in the court was prepared by him subsequently under the directions of the court, as such, it clearly shows that he did not prepare any comparison chart of Ex.PW2/1 the finger prints obtained from the dead body of the deceased and specimen left index fingerprint of Nitish Katara obtained from the licencing authority.
In these circumstances even if as per the 705 comparison chart Ex.PW2/5 there are about 8 similarities in the finger print impressions Ex.PW2/C1 and the finger print impression Ex.PW2/2, no reliance can be placed thereon for the reason the prosecution has neither proved on record that the finger prints Ex.PW2/C1 were also taken by Chetram from the deadbody of the deceased, nor it is proved on record that the finger print impression was obtained by him from the record of driving license of deceased Nitish Katara. In these circumstances, I am not inclined to rely upon the report Ex.PW2/6 of the finger print expert in this regard.
➔ DNA i) The forensic use of DNA started
with the work of Alec Jeffrey, a genticist at the University of Leicester in Britain's Midland in 1984, Jaffrey invented the techniques that took 706 human identification from the laboratory to the court room. With his coworkers, he demonstrated that forensic samples, dried stains several years old, contained sufficient DNA to yield conclusive results. Jaffrey proved that even small fragments of DNA molecules were virtually unique to individuals. He called the process he invented ''DNA Finger Printing''. The finger prints ''produced by the tests bears a superficial resemblance to a super market bar code. With the difference between individuals revealed by the spacing between the 15 or 20 lines called band. Such differences between specimens are measured by a process called Restriction fragment length Polymorphism (RFLP) Analysis.
ii) Jaffrey applied it to an immigration case. A boy from Ghana sought to immigrate to 707 Britain claiming that his mother was already a resident. Conventional blood tests were not conclusive beyond confirming that the two could be related. DNA analysis put beyond reasonable doubt that relationship was as claimed and the Home Office put stamp of its approval on the new technology. The technology was, thus extended to from site of crime to court of law.
iii) The application of the technology is new to India. In the matter of introduction of new scientific evidence the basic principle is that one who seeks to introduce such scientific evidence at the judicial trial must establish a proper foundation. The failure to lay it properly may affect the weight of evidence or may go to the very issue of its admissibility . Therefore, the State in the matter of DNA identification 708 evidence, must satisfy that the physical evidence upon which test was conducted has been obtained in accordance with law and reached laboratory. Due procedure / protocol was applied & that accused got due opportunity of fairness hearing in the matter of analysis and during trial.
WHAT IS DNA TECHNOLOGY:
i) Deoxyribonucleic Acid (DNA)is a complex molecule contained in each nucleated cell of an organism and in the cytoplasm of organisms such as bacteria without nuclei.
There are two types of cells :Prokaryotic and Eukaryotic. Prokaryotic cells are surrounded by single membrane and there is no nucleus in them. The genetic material is surrounded by the same single cell wall. An Eukaryotic cell is essentially a double membrane system. Primary 709 membrane surrounds the cell and is generally called as cellular wall. Secondary membrane surrounds the nucleus and is generally called as nuclear wall. In between the two lies cytoplasm which consists of a semifluid, jelly like, homogenous, translucent ground substance called cytoplasmic matrix. In the nucleus also there is semifluid, homogenous, translucent ground substance which is known as nucleoplasm. In the nucleus is located the cellular DNA in the form of coiled rods known as chromosomes. There are 23 pairs of these chromosomes in every cell. Out of these 23 pairs 22 pairs are called autosomes and 23rd pair is called sex chromosome. The chromosome is a single double stranded DNA molecule with protein coating. A metaphase chromosome consists of two identical filaments known as 710 chromatids formed earlier during interphase (nondivision stage) by replication of a single filament. The two chromatids lie side by side along their length and are joined together at one point, which point is known as centromere. The region which contains centromere is narrow. The centromere appears as a constriction in the chromosome and this is known as primary constriction. Chromosomes may have additional constrictions. These are called secondary constrictions. Part of chromosome separated by secondary constriction is known as satellite. A chromosome with a satellite is known as satchromosome. The ends of the chromosomes are called telomeres. The parts of the chromatids on both sides of the centromere are known as arms. The arms may be equal or unequal depending upon the 711 position of the cetromere. A chromatid is composed of a very fine filament, the chromonema. The very fine filament is a single double stranded DNA molecule with protein coat. It is very long and greatly coiled in 3 orders. The coiling is highly specific so that a particular segment of the chromonema always occupies the same position within the chromatid. The eukaryotic chromosomes are composed of DNA, proteins, RNA, metal ions and enzymes. There is a single double stranded DNA molecule in a chromosome. The DNA contains the biological and genetic information. Its amount in all somatic cells of an organism is the same, the gametes have half of this amount. The chromosomal proteins have nothing to do with the genetic potency of the chromosomes. They may be replaced with other 712 proteins without in any manner altering the functions of the gene. The chromosomal proteins regulate gene action. They are of two types: Simple basic histones and acid or neutral nonhistones. The histone proteins are low molecular weight proteins rich in the basic amino acids lysine and arginine. The DNA and histones are loosely bound together in 1:1 ratio to form deoxyribonucleoproteins (DNP). This linkage maintains the helical form of the DNA molecule without disturbing its structure. The histones prevent RNA transcription. The non histone proteins are high molecular weight proteins having amino acids tyrosine and trytophan. They are believed to activate the genes to start RNA transcription. The RNA is transcribed by DNA where a strand of DNA serves as a template for RNA. Most of it passes 713 into the cytoplasm and some remains associated with molecules made up of four different monomeric units called nucleotides. DNA molecule is a double chain of deoxyribonucleotide units. Each nucleotide consists of three distinct parts : (1) a pantose (5 carbon) Sugar, (2) Nitrogenous base and (3) a phosphate group. The nitrogenous bases fall into two classes, the purines and pyrimidines. In DNA the purines are Adenine (A), Guanine (G) and the pyrimidines are Thymine (T) and Cytosine (C ). The RNA molecule also contains Adenine, Guanine and Cytosine, but Thymine is replaced by Uracil (U).Adenine(A) will always pair with Thymine (T) with double Hydrogen Bond and Guanine will always pair with Cytocine ( C) with triple Hydrogen bonds. In each chain the phosphate component carried by 714 the Carbon atoms at position 5 of one nucleotide unit is joined by phosphodiester bond to the hydroxyl component of the Carbon atom at position 3 of the sugar in the next nucleotide unit. These 3'', 5'' phosphodiester bonds provide a considerable stiffness to the polynucleotide. These bonds form a long molecular thread of alternating sugar and phosphate components on the outside of the DNA helix. The fundamental unit of DNA thus consists of two intertwined polynucleotide chains and resembles as twisted ladder referred to as, double helix.
ii) One of the functions of DNA is the transmission of heritable traits from parents of offspring. On a macro level long strands of DNA are organised into bodies called chromosomes, of which human beings have 715 twenty three pairs. One half of each pair in an individual is donated by one's father and the other by the mother. Thus, each individual has a duplicate copy of genes.
iii) A gene is a functional length of unit of DNA that is responsible for the production of a particular trait. It is genes that define an individual is biologically distinct from each other, but sharing many other common traits that define all as human beings. A common example is an eye colour. All human beings possess the genetic informtaion that, when encoded and translated, led to development of the eyes as organs. However, each individual's eyes are different. For example, eye colour commonly varies among individuals. Variations in eye colour, when taken along with numerous other traits define our differences and 716 distinguish us as individuals.
iv) It is in the micro level that the structure of DNA manifests its individualized specificity. It is the variation in the ordered structure of the bases alongwith strand that determines what gene is encoded and what from the that gene is encoded. These sequences are the codes for the proteins which comprise the human body.
v) Most of the DNA sequences among individuals are very similar. Infact 99 to 99.9% of DNA is identical from one person to the next. The human body is practically defined by each individual having two arms, two legs, two eyes and other common characteristics. It is the polymorphic nature of certain genes that distinguish. These polymorphisms are different versions of genes called alleles. 717 THE TECHNOLOGY USED FOR DNA TESTING
i) There are two tests used in DNA profiling. They are commonly referred to as ''FLP'' and PCR based tests''.
(a) RFLP analysis (DNA Profiling): The most widely used method at present is called DNA fingerprinting or DNA profiling. It employs a technique known as Restriction Fragment Length Polymorphism (RFLP), also known as conventional VNTR.
ai) Restriction Fragment Length Polymorphism (RFLP) compares the sizes (Total fragment length) of a polymorphism that part of the DNA molecule, which is suggested to differ from person to person.
aii) In RFLP analysis, RF stands for Restriction Fragments. Those are the fragments of DNA that are cut by restriction enzymes. L stands 718 for Length, and refers to the length of the Restriction Fragments. P stands for the Polymorphism, a Greek term that literally means ''Many shapes''. the length of some of the restriction fragments differ greatly between individuals, thus there are many shapes, or lengths, of DNA possible.
aiii) Molecular biologists have identified regions of the human genome where restriction fragment lengths are highly variable between individuals. These regions are called RFLP markers.
aiv) The steps in RFLP analysis alongwith a brief explanation of each step are shown below.
STEPS IN RFLP ANALYSIS.
1. DNA EXTRACTION: DNA can be extracted from almost any 719 human tissue, such as blood, semen, skin, saliva, urine etc. The DNA thus extracted from evidence sample is compared with DNA extracted from individuals in question.
2. DIGESTION OF DNA The extracted DNA is treated with restriction enzymes that cut the DNA at the specific sequence, resulting in many smaller DNA fragments.
3. GEL ELECTROPHORESIS: The electrophoresis gel separates the fragments by size. The larger piece of DNA will move toward the bottom of the gel much more slower than the smaller pieces, forming a banding pattern in the gel. The molecular weight marker / allelic control besides other controls like positive control, negative control and victim control are necessary to be run in the gel alongwith the 720 evidence samples.
4. THE ''SOUTHERN BLOT'' After electrophoresis, the single strands of DNA are transferred to the surface of a nylon membrane by blotting, just as the blotting of wet ink on a dry paper transfers a replica of the image to the paper, the blotting of DNA fragments that existed after electrophoresis.
5. MULTILOCUS PROBES/SINGLE LOCUS PROBE: A radioactively labeled probes / probe or piece of DNA with a complementary sequence issued on the Southern Blot DNA. The probe will find that sequence in the DNA and bind to it.
6. AUTORADIOGRAPHY: The nylon membrane is placed next to a sheet of xray film in a light tight container. The xray film records the locations of radioactive 721 probes. The developed xray film is termed ''Autoradiographs'' and also called as ''autorads''. VNTR VARIABLE NUMBER TANDEM REPEAT The locus on a given chromosome where any particular gene occurs is called its locus. The different forms taken by a gene is called allele. The locus may be a gene, a particular sequence of bases that is decoded into an observable trait in which case different alleles may give rise to variants of that trait. Some of loci, which exhibit a special class of RFLP, a class with extremely high level allelic variation are called hypervariable. Hypervariable loci contain VNTRs. RFLP is also known as VNTR, which arises from variations in the number of tandemly repeated DNA sequences present between two restriction enzyme sites. These sequences are between two 722 restriction enzyme sites. These sequences are derived from minisatelites, which are clusters of sequences from 2 to 100 nucleotides in length. For example, the base sequence GGAAGGGAAGGGAAGGGAAG Consists of four tandem repeats of the 5 nucleotide sequence GGAAG. This sequence consisting of 5 NUCLEOTIDES is called CORE SEQUENCE. Clusters of such sequences are widely dispersed in the human genome. Typically, each repeat contains a number of nucleotides and number of repeats at each locus is variable. These loci are known as variable number tandem repeats regions. VNTR regions usually range from 500 to 10,000 nucleotide pairs. A core sequence of 1535 base pairs is repeated many times consecutively along the chromosome. The number of repeats at a given locus is variable and each 723 variation is a VNTR allele. Many loci have dozens of alleles each, as a result hetrozygosity is common. If the same allele is present in both chromosomes of a pair the person is homozygous. If two alleles are different the person is hetrozygous. Different alleles consist of different number of repeats, VNTR alleles are known by the number of repeats at a given locus in a relevant population. If DNA fragments of different lengths are placed on a semisolid medium (gel) in an electric field (Gel electrophoresis) they migrate at different rates. Different sized fragments can therefore be identified by the distance they travel between electrodes in such a gel.
(b) PCR THE POLYMERASE CHAIN REACTION. bi) A second method for DNA testing
less widely used than DNA profiling employs a 724 technique known as Polymerase Chain Reaction (PCR).
bii) The polymerase chain reaction (PCR) allows specific, multimillionfold replication (or 'amplification') of virtually any small segment of DNA. For amplifying any specific locus, specific primer is used. For amplifying different loci different primers are used which have been internationally approved by the scientific community.
biiii) PCR involves the multiple repetition of three basic steps viz. denaturation, annealing and synthesis called one cycle, two of which can be combined and all of which consist simply of placing a reaction mixture containing the DNA to be amplified at different, defined temperatures. The entire procedure usually takes between one and four hours depending upon the 725 number of cycles used for amplification and can be fully automated. In addition to the sample DNA, the reaction mixture contains short segments of DNA, usually about 20 bases long, called 'oligonucleotides'. This is the primer which is specific to amplify a particular locus called the target locus, which is intended to be amplified. The base sequences of these are such that they complement sequences on either strand of the double helix that flank the DNA region to be amplified, also included in the reaction mixture are free nucleotides comprising of monophosphates of the nitrogen bases viz Adenine (A), Thymine(T), Guanine (G) and Cytosine that are used to build new DNA sequences and an enzyme, DNA polymerase that acts as catalyst and drives the reaction. biv) The first step in the reaction 726 involves heating the DNA, usually to 94o C , to cause the two strands of the DNA double helix (like twisted ladder) to separate. This process is known as denaturation. Following this denaturation step, the reaction mixture is cooled to a temperature usually between about 55o C and 72o C. In this, the second step, the oligonucleotides hybridize ie bind to the sequences they complement. This process is known as annealing. Once they have annealed, they act as primers for the synthesis of new DNA strands. Since the oligonucleotide primers have been chosen to flank a specific target sequence, the target sequence itself is copied as the new strands are formed across the region being amplified. This third, extension step usually is carried out at 72o C. This process is known as synthesis whereby the new complementary strand is formed. All these three 727 steps taken together constitute the process known as AMPLIFICATION OF DNA.
bv) Thus, during a single round of PCR cycle new DNA strands are formed in the target region with the previously existing strands acting as templates. The result is two double stranded copies of the target region will be made for every copy that existed at the start of the reaction. bvi) The threestep process is repeated multiple times, with a doubling of the number of copies of the target DNA segment at each repetition. The result is an exponential increase in copy number of the target. The reaction is usually continued for approximately 30 cycles after which there is a multi millionfold increase n the number of copies of the target DNA sequence. This amplified DNA is PCR product. The PCR process is limited to the amplification of a small 728 DNA region. This region is usually not more than 1000 nucleotides in length, so PCR methods cannot, atleast at present, be used for large DNA regions such as most VNTRs.
bvii) Once PCR has been used to generate a large number of copies of DNA segment of interest, a number of approaches may be taken to detect genetic variation within the segment. In general, the approaches fall into two categories, those directed at detecting sequence variation and those directed at detecting variation.
bviii) PCR based systems for the detection of genetic variation: a. Sequence based detection systems: (1)Sequence specific probes HLA DQ Alpha. (2)Allele specific amplification. (3) Oligonucleotide ligation assay. (4) Restriction site specific cleavage. 729 (5) Denaturing gradient electrophoresis. (6) Sequence analysis.
b. Length variation.
1) Simple insertions /deletions
2) VNTR polymorphism also called AMPFLP.
(c) HLA DQALPHA TYPING :
ci) HLA gene has three classes / regions, located on chromosome 6. HLA Class I, HLA ClassII and ClassIII. In this case HLADQ Alpha has been used.
cii) HLADQ Alpha belongs to HLA ClassII. HLA Class II has three genes HLADR, HLADQ Alpha and HLADP located as different loci (sites) on chromosome 6.
ciii) HLADQ Alpha has 16 alleles. HLADQ Alpha is a single locus. Out of 16 alleles 730 of HLADQ Alpha only (6) six common alleles (DQ Alpha alleles 1.1, 1.2,1.3, 2, 3 & 4) are till date type able and used for forensic purposes. As a matter of fact there are four major types of DQ Alpha alleles viz 1, 2, 3 and 4. Allele No.1 has three sub types viz 1.1,1.2 and 1.3. In HLA DQ Alpha typing, allele No. 1 as 1 is not included / mentioned in genotype and in its place either of its three sub types is included / mentioned in the genotype. civ) As per Mendalian Segregation Law / Genetic principle there cannot be more than two alleles at one locus, in an individual one derived from father and other from mother because each person has two versions of the gene. cv) A GENOTYPE is a combination of two alleles at one locus, may be with the subtypes of allele. For DQ Alpha there are (21) possible genotypes namely:
731
1.1 1.1 1.2 1.3 2 2 33 44 1.2 1.3 1.1 1.2 2 3 3 4 1.2 1.3 1.1 2 4 1.3 1.1 2 1.2 2 1.3 2 1.1 3 1.2 3 1.3 3 1.1 4 1.2 4 1.3 4 cvi) Those who have two copies of same alleles are called Homozygotes / Homologous at the DQ Alpha locus and people with two different alleles are known as Heterozygotes / Heterologous. Thus there are (6) six homozygotes viz. 1.11.1, 1.21.2, 1.31.3, 22, 33 and 44 and the rest (15) fifteen are heterozygotes.
cvii) The technique developed for typing amplified DNA,most commonly used in forensic 732 science, examines the HLADQ Alpha gene through Reverse Dot Blot Method also known as Reverse Dot Hybridization Method. The amplified DNA is incubated with typing strips containing immobilized DNA probes specific to different DQ Alpha alleles.
cviii) Following hybridization, a colour development procedure is used to detect the presence of DQ Alpha alleles in the sample. The DQ Alpha type of a sample is determined by reading the pattern of blue dots. AMP FLP (loosely called PCRVNTR).
cix) Once the amount of DNA is amplified by the PCR method the analysis proceeds in essentially the same way as with VNTRs (RFLPTyping) for the identification of fragments of different size by their migration in an electric field.
733cx) It will be relevant to detail the procedure as noted in Encyclopedia of Molecular Biology and Molecular Medicine edited by Robert A Meylrs Vol.II in a diagram from Differential Extractions as in tis case from vaginal swab/smear.
cxi) Having noted the principles which are required to be furnished / established in the DNA evidence and also what is DNA and the technology thereof, it is to be considered is DNA or evidence adduced in the case relevant and admissible.
i) The relevant witnesses examined by the prosecution with regard to the DNA test are PW 8 Dr TD Dogra, PW 10 Dr. Sanjeev Lalwani, PW 17 SI RC Makholia, PW 30 Mrs. Neelam Katara, PW 35 SI Anil Somania and 734 PW 37 Dr.AK Sharma.
ii) The defence counsel has submitted that the prosecution has produced Dr AK Sharma PW 37 as a DNA Specialist who gave his report Ex.C1 to establish that the samples sent to him purportedly from the deadbody with the blood samples of the complainant Mrs. Neelam Katara and her husband as far as their DNA profile is concerned. It is submitted that a direction was passed by Hon'ble High Court of Delhi in Criminal Revision No. 352/2003 copy of which has already been placed on record. As per the said direction the accused has to be given the genotype gel which is the original raw data from which the expert submits the genotype printout. Despite the said direction the DNA expert did not produce the same in the Court. 735 During the cross examination the order passed by the Hon'ble High Court on 4th Dec. 2003 was produced before the Court and the Hon'ble Court further directed the witness to produce the genotype printout, CD of the geno and genotype software. The witness submitted that he has only the genotype print out and not the CD of the geno nor the genotype software. The report submitted by the witness without producing the raw data as directed by the Hon'ble High Court and reiterated by this Hon'ble Court by its order dated 18.05.2004 was not complied with therefore the defence did not have the opportunity to check the authenticity of the genotype printout and therefore the said report is not admissible in evidence. That even the perusal of the said report most specifically the diagrams pertaining 736 to the peaks which show the allele numbers most specifically with reference to marker No. TH01 to entires have been made with hand namely entry No 8 and 9.3 and also the entry at serial No. 3 of page 5 where after the print l another addition has been made as l in the hand. Both these interpolation have been conceded to by the witness. Even suggestions were made to the said witnesses that he had not produced the raw date so as to prepare a fabricated report. The prosecution has not assailed these points.
iii) The defence counsel has further argued that initially Dr AK Sharma avoided coming to the Court for deposition ands sent communication to the Court since he is an expert witness his report is admissible U/s 293 Cr PC, therefore his personal appearance be 737 dispensed with and his request was acceded to by the Court and report was exhibited as Ex. C1. But thereafter the witness was called by the Court on the request of the defence counsel since he was to be cross examined. I is submitted that even the attitude of the Court was not just towards the accused persons when they were directed to submit in writing the questions which they were to put to this witness before he was summoned and it is only when with the directions of the Hon'ble High Court of Delhi vide order dtd. 4th Dec 2003 the impugned order was set aside with directions to the trial court to give full opportunity to the defence to cross examine the witness without being insisted upon to submit in writing pointing out from the report as to on what point the cross examination was to 738 be done. The defence counsel has further submitted that in terms of the order of the Hon'ble High Court the accused persons were not supplied with the copy of genotype which ought have been filed by the witness alongwith its report. It is submitted that only genotype printout was filed on record but not the genotype gel from which the genotype print was prepared. It is further argued that the best sample i e the bone taken out from the deadbody of the deceased was not chosen by the witness to conduct DNA. The defence counsel has further argued that the deadbody was not kept/ preserved in hygenic condition, as such the degrading of the samples cannot be ruled out and the benefit of the same must be given to the accused persons.
iv) Advocate Sh SK Sharma. counsel for 739 accused Vishal Yadav is that there is no provision of law for transfer of the deadbody to Delhi for taking samples for DNA as the samples could be taken anywhere else in UP and after all the tests had been conducted if the deadbody was found to be of Nitish Katara, thereafter it should have been handed over to the police of PS Kavi Nagar. It is further submitted that even the inquest papers were not deposited with the AIIMS hospital alongwith the deadbody of the deceased. The defence counsel has further argued that the deadbody was transferred to Delhi due to the influence of the complainant over the investigation. However, in my opinion that these allegations are unfounded as it is only with the order of the CJM Ex PW 8/C the deadbody was transferred to Delhi and it is 740 presumed the CJM must have passed the order after satisfying himself that there was no provision to preserve the deadbody in Bulandshahar mortuary for DNA. At the same time it is important to note that SI Anil Somania was not suggested that he acted under the influence of complainant nor there was any suggestion to Dr TD Dogra and Dr Sanjeev Lalwani about any such pressure from the complainant. Even complainant Neelam Katara was not suggested so. It is observed in the order of CJM Bulandshahar Ex. PW 8/C that there is no provision of preservation of the deadbody in Bulandshahar mortuary for DNA printing and it was allowed to be send to AIIMS at Delhi. The defence counsel failed to produce any such evidence on record that there was any such provision available to preserve 741 the deadbody for DNA printing in UP nor it was suggested to any of the witnesses. DNA is nodoubt an important aspect of the investigation, particularly, when the deadbody recovered was unidentified. To find out whether the deadbody was of Nitish Katara it was necessary to conduct DNA finger printing on the deadbody and for want of provisions/ facilities for preserving the deadbody for DNA printing it was transferred to Delhi and in my opinion there was no malafide either of the investigating officer who sought the transfer of the deadbody to AIIMS at Delhi nor of the CJM concerned who allowed this application If here is no provision in the Cr PC as argued by the defence counsel that the investigation could be carried out outside the State where the alleged crime took place, similarly there is no 742 provision in the Cr. PC barring the investigation to be carried out outside the concerned State. If it is so then it can also be questioned as to why the samples were sent to CFSL Calcutta for DNA and not in the UP itself.
v) Regarding the argument of the defence counsel that SI Anil Somania admitted in his cross examination that the inquest papers were not submitted alongwith the deadbody to AIIMS hospital, an explanation had already been given by SI Anil Somania during his cross examination that Khurja police did not hand over the papers concerning this case to him. He got order from CJM Bulandshahar and got the deadbody transfer to mortuary AIIMS hospital till that time Khurja police did not give him the inquest papers. He further clarified that the MS AIIMS hospital did not 743 ask him to produce the inquest papers. He testified that the inquest papers were received by him through proper channel i e through DIG Meerut Range and he had received the same on 23.3.2002. The IO SI Anil Somania had adequately explained the reason as to why he did not submit the inquest papers alongwith the deadbody to AIIMS hospital. It is important to note that the deadbody was seized by Inspt CP Singh of PS Khurja Nagar and the inquest papers were also prepared by him and not by SI Anil Somania so as to say that these documents were available with him and he intentionally did not submit alongwith the deadbody. Moreover, if the inquest papers were required by the hospital authority for obtaining the samples for DNA from the deadbody the MS could have given the direction to the IO to 744 submit the same at the earliest as the samples from the deadbody were collected on 22.2.02 whereas the deadbody, as per the testimony of PW 35 SI Anil Somania, was deposited with AIIMS hospital on 21.2.02. Moreover, the deadbody was sent to AIIMS in compliance of the order of the CJM Bulandshahar Ex. PW 8/C for conducting DNA finger printing and for not conducting postmortem to find out the cause of death, for which the inquest papers were necessary to be submitted alongwith the deadbody. The postmortem had already been conducted on the deadbody at Bulandshahar mortuary on 18.2.02 and now only the identity of the deadbody was to be established vide DNA test.
vi) On the other hand the Spl PP for State has argued that for DNA test the samples 745 were taken by PW 8 Dr TD Gogra which were kept in separate bottles and labels. One of the samples ie entire femur, bone weighing approximately 900 gms wrapped in a polythene. All the tissues were kept in freezer for storage. The bone was kept in refrigerator. That all the material was sealed with the seal of department and sample seal was prepared separately. The blood samples of the complainant Mrs. Neelam Katara and her husband Sh. NM Katara observing the proper procedure. The entire procedure was carried out by Dr Sanjeev Lalwani, Sr Resident , Dr D.N. Bharadwaz and Dr. Abhijeet Rudhra under his supervision. It is stated that the samples collected from the deadbody and blood sample of Neelam Katara and Sh.NM Katara were handed over to SI RC Makholia on 25.2.02. and 746 on the same day the same were deposited in CFSL Calcutta which seals intact. It is further submitted that PW 37 Dr AK Sharma has given detailed statement about the different test conducted by him as per international standards and he found similarity in the samples from the deadbody and the blood samples of the parents of Nitish Katara and gave report to the effect that the tissue samples examined by him belonged to the biological son of Mrs Neelam Katara and Sh NM Katara. It is further submitted that though the defence has thoroughly cross examined the witness but nothing material could come out which could discredit the testimony of this witness.
vii) The relevant witnesses relating to DNA finger printing as referred above PW 30 747 Mrs Neelam Katara, PW 8 Dr. TD Dogra, AIIMS Hospital, New Delhi, PW10 Dr Sanjeev Lalwani, Sr. Resident AIIMS Hospital, New Delhi, PW 17 SI RC Makholia, PW 35 SI Anil Somania and PW 37 Dr AK Sharma.
viii) PW 35 SI Anil Somania testified that on 22.2.2002 he reached AIIMS hospital at 9:00 am. As per his directions Neelam Katara, Nitin Katara and Nishit Katara had also reached the hospital. Blood samples of Neelam Katara and Nishit Katara were taken in the hospital in his presence and he signed the blood sample card Ex. PW 10/1 of Neelam Katara at point B and blood sample card Ex PW 10/2 of Nishit Katara at point D. He further stated that samples of blood taken at AIIMS and were sealed in his presence.
ix) The aforesaid testimony of SI Anil 748 Somania has not been disputed or rebutted in any manner during the lengthy cross examination by the defence counsel.
x) PW 30 Mrs Neelam Katara also testified that on the lines of PW 35 SI Anil Somania that on 22.2.02 she and her husband went to AIIMS hospital for giving blood samples for DNA test. She proved her blood sample card Ex PW 10/1 bearing her photograph and her thumb impression and Ex. PW 10/2 the card of her husband bearing his photograph and his thumb impression She was not subjected to any cross examination in this regard. Hence, it is deemed to be admitted on the part of the defence that the blood samples of both Neelam Katara and her husband Nishit Katara were collected at AIIMS hospital for DNA test on the unidentified deadbody. 749
xi) The blood samples of both Smt Neelam Katara and Nishit Katara as well as the sample tissues from the unidentified deadbody were collected under the supervision of Dr TD Dogra PW 8. He testified that on 22.2.02 he was working in AIIMS hospital. On that day he received a letter dtd. 22.2.02 EX.PW 8/A from Sh AK Raghav SP City Ghaziabad addressed to Director, AIIMS. This letter was marked to HOD Forensic Medicines by the director vide endorsement EX PW 8/B .The letter was also accompanying the order of CJM Bulandshahar UP regarding DNA test. He further testified that in pursuance of this order the samples were collected for DNA test under his supervision since he was the HOD for Forensic Medicines. He testified that blood samples from Sh NM Katara was collected by PW 10 750 Dr. Sanjeev Lalwani vide file No. CL.FOR.MED.No. 12/2002. Blood sample was soaked on gauze piece kept on blotting paper and was dried under natural condition. The forms required for DNA test at CFSL Calcutta was duly filled. The samples were wrapped in blotting paper kept in air tight polythene bag. The polythene bag containing sample was kept in an envelope which was sealed with the seal of Deptt of Forensic Medicines and labelled as above. The blood sample from Smt Neelam Katara was collected by PW 10 Dr. Sanjeev Lalwani vide CL.FOR.MED.No. 13/2002. Blood sample was soaked in gauze piece kept on blotting paper and was dried under natural condition. The form filled up for DNA test of CFSL Calcutta the sample was wrapped in blotting paper kept in air tight polythene bag. 751
The polythene bag containing sample was kept in an envelope which was sealed with the seal of Deptt of Forensic Medicines and labelled with the number.
xii) He further testified that the unknown deadbody suspected of Nitish Katara son of Sh NM Katara was taken out of mortuary New Delhi AIIMS for collection for sample for DNA test vide CL.FOR.MED.No. 14/2002 following samples were collected from the deadbody.: a. Entire right femur bone ( Weight Aprox. 900 gms).
b. Piece of Right Calf muscle (Weight 80gms Approx.) c. Piece of Right Lung ( Weight 20gms Approx.) d. Pieces of kidney of both sides (Weight 15 752 gms each Approx.) e. Piece of Heart muscle (Weight 20gms Approx.) f. Piece of liver tissue (Weight 25gms Approx.) g. Pieces of spleen (Weight 25gms Approx.) and a blood sample of gauze piece from right side of the heart. He further explained how the sample tissues were preserved. He testified that all the tissues were kept in a separate bottles and were labelled. The bone was wrapped in polythene. All the tissues were kept in freezer for storage. The bone was kept in refrigerator. All the material was sealed with the seal of department. The sample of the seal was prepared separately.
xiii)He further testified that the entire procedure was carried by PW 10 Dr Sanjeev Lalwani , Sr Resident, DR D.N. Bharadwaz and Dr 753 Abhijeet Rudhra under his supervision. He proved the proceedings recorded at the time of taking samples as Ex. PW 8/F bearing the signature of PW 10 Dr Sanjeev Lalwani , Sr Resident, DR D.N. Bharadwaz and Dr Abhijeet Rudhra and his signatures at point A, B, C and D respectively. He identified the signatures of these three doctors while stating that he had seen them signing and writing since they had worked with him.
xiv) The witness further testified that the samples were handed over to PW 17 SI RC Makholia of PS Ghaziabad on 25.2.02 vide receipt Ex. PW 8/D. Thereafter he received receipt Ex. PW 8/E from the Director Forensic Science Lab. Calcutta regarding receiving the samples and the forwarding letter.
xv) During cross examination the 754 witness categorically stated that identity of Smt Neelam Katara and Sh NM Katara was established before him by SO Anil Somania of PS Kavi Nagar. No suggestion to the contrary was given to the witness that the blood samples collected for comparison with the samples from the deadbody were not from Sm Neelam Katara or Sh Nishit Katara or sample tissues were not collected from unidentified dead body recovered from Shikarpur Road.
xvi) The witness was put a specific question as follows:
Q: Does a contamination present in the mortuary have significant affect on DNA test? A: Normally there is no contamination in the mortuary and we avoid contamination. xvii)The witness further categorically testified that 755 if two deadbodies are lying in the cold room Genes cannot travel from one body to another, only germs may travel. Though, the witness admitted it to be correct that if the deadbody is transported from one place to another place there are chances of some sort of contamination, however, no suggestion was given to the witness that in the present case there was any sort of contamination due to transfer of deadbody from one place to another. xviii) The witness in answer to a court question admitted that even if a deadbody is lying jungle in open condition still DNA test can be conducted accurately in respect of the deadbody. The witness has even gone to the extent of admitting that even if the deadbody is lying in a drain the DNA test can be conducted if the tissues are available or from the bones. 756
He further admitted in answer to the court question that outside contamination does not effect the DNA test as long as DNA can be retrieved from tissues or bones.
xix) Perusal of the statement of this witness shows that no suggestion was given to the witness that proper procedure was not followed while taking the samples from the deadbody or the blood samples of Neelam Katara and NM Katara or they were not properly sealed or labelled or were not handed over to SI RC Makholia in sealed conditions for deposit with CFSL Calcutta.
xx) PW 10 Dr Sanjeev Lalwani had collected the blood samples of both Neelam Katara and Nishit Katara and DNA samples from the deadbody of an unknown person alongwith Dr DN Bharadwaz and Sh Abhijeet 757 Rudhra in the presence of PW 8 Dr TD Dogra. He deposed on the lines of PW 8 Dr TD Dogra. The witness was not cross examined on behalf of accused Vikas Yadav whereas no material question was put to the witness to discredit his testimony during the cross examination on behalf of accused Vishal Yadav. xxi) As per the prosecution PW 17 SI RC Makholia of UP police had collected the samples for DNA from AIIMS hospital and deposited the same with CFSL Calcutta. PW 17 SI RC Makholia deposed that on 23.2.02 he was given directions by SP city Ghaziabad to collect samples for DNA in respect of Case No. 192/02 of PS Kavi Nagar Ghaziabad from AIIMS hospital. He visited AIIMS hospital on that day and contacted forensic department but was not given the samples. He again 758 went there on 25.2.02 and on that day he collected the samples as detailed in Ex.PW 8/D ie the receipt which were to be taken by him to Calcutta.
xxii) He testified that in acknowledgment of his receiving the samples, he appended his signatures with endorsement at point A on Ex. PW 8/D . He further testified that all the packets received by him were duly sealed and seals were intact. Sample seal was also given to him. After taking the samples, on the same day he left for Calcutta by air and reached CFSL Calcutta on the same day and deposited the samples there. He stated that so long the sealed packets remained in his custody the seal remained intact and he deposited the samples with intact seal. xxiii) He further testified that he 759 again went to Calcutta on 6.3.02 to bring back the remnants of the samples after testing and the report. He reached Calcutta either on 8 or 9 March and from there brought back the remnants of the samples deposited with CFSL. During his examination one sealed packet with the seal of CFSL was opened, the container and its contents were collectively exhibited as Ex. P2. He further testified that he had also brought the report Ex.C 1 in sealed cover and produced before the CJM Bulandshahar alongwith forwarding letter Ex PW 17/1 which was endorsed by the CJM at point A. Thereafter the said letter was handed over to him and he gave the same to the IO. No fruitful examination of this witness was conducted. The testimony of this witness was not rebutted in any manner that either he did not collect the 760 samples in sealed condition or he did not deposit them in the CFSL Calcutta in the sealed condition.
xxiv) PW37 Dr AK Sharma, Asstt Director CFSL Calcutta had conducted DNA
test on the samples collected from the unidentified deadbody and Smt Neelam Katara and Nishit Katara.
xxv) PW37 testified that he is M.Sc and Ph.D in forensic science and joined CFSL Calcutta as Senior Scientific officer in l994. Further that he has been reporting DNA cases since Jan 2001 after extensive training in DNA profiling. He stated that presently he was working as Asstt. Director Incharge DNA unit, Biology division, CFSL Calcutta. His further testimony is reproduced as follows: " On 25.2.02 I received one sealed 761 thermocol box, three sealed paper packets and one sealed cloth packet in my office relating to this case. The description of exhibits is as detailed in my report Ex.C1 . I carried out the requisite tests and came to the conclusion that the body ( source of Ex.C: blood stained III, Ex. F: Tissue sample II and Ex. J:
Tissue sample VI forwarded vide CL.FOR. MED NO. 14/2002 ) belongs to Biological son of Mrs. Neelam Katara (Source of Ex. B, blood stained II) and Mr NM Katara ( source of Ex. A: blood stain I). The remnants of the exhibits were returned to the police. The mode of carrying out the tests and reasons for any such a conclusion are enumerated in my report Ex.C1. The report bears my signature at point A on it. '' 762 xxvi) During cross examination the witness explained that Genome means the whole DNA of the cell. Th following questions which were put to the witness during cross examination are reproduced: Ques: Whether it is correct that Genome denotes the entire DNA in an organism?
Ans: Organism is made of different cells. Usually the Genome is used for a cell of a DNA and therefore the answer to question is yes.
Ques: What is meant by Marker referred in your report?
Ans: Marker refers to DNA markers used for the identification purposes. It is correct to suggest that marker is a region of the DNA i e used for identification of the DNA.
Ques: What is the difference between a Marker and Loci?
Ans: Some of the Markers are identified at the position at which they are present and that position is called the Locus.
763
Ques: What is Allele? Ans: Different forms of a genetic marker are
called Alleles of that Marker. It is correct to suggest that the variants of a particular locus are called Allele.
Ques: What is polymorphism? Ans: The presence of different Alleles in a marker refers to the polymorphism meaning by the variety in that marker. Ques: Has restriction fragment length
polymorphism was done in this case. Ans: No Ques: How many base pairs are there in the human genome?
Ans: Around 3 billion.
Ques: Is it correct that 98% of genome in mice is
similar to human genome?
Ans: It is correct.
Ques; The closeness of the human genome and the
Chimpanjee is 99.4%?
Ans. Yes.
Ques: Among human beings what is the percentage
764
of similarity of the human genome? A: 0.1% Ques: What is meant by nucleo dides? Ans: Nucleo dides are 4 nitrogenous bases namely Adenine thymine, guanine and cytosine. Ques: Is it a myth that DNA report is infallible? Ans: A good DNA report using proper control and standards with the intentionally accepted technology should be infallible.
Ques; Can there be errors arising in the sample itself?
Ans: If the samples are improper, error may come. Ques: Is it correct that there cane be accidental error in samples?
Ans: If proper standard and control are not used error may occur.
xxvii)Perusal of all these questions put to the witness shows that basically these questions were put to the witness to gain knowledge as to what is DNA test. These questions in my opinion did not discredit his testimony in any 765 manner.
xxviii) The witness during cross examination categorically stated that he obtained the samples on 28.2.02 and completed the test on 06.03.02 and the cell was scanned with the laser. He produced genotype reports. The witness further testified in cross examination that serial No.l shows the Allele number of Sh N M Katara and serial No. 2 on the left side pertains to the Allele number of Smt Neelam Katara. Serial Nos. 3,4 & 5 on the left side pertains to the Allele number of the samples said to be of the deadbody. He explained that some serial numbers have been maintained for all the Makers. He admitted it to be correct that allele number on the right side in blocks is always on the ascending side. He admitted it to be correct that when two 766 alleles of one sample are compared with the alleles of two other related samples, the allele number of the first sample find mention in the other two related samples as every child gets 50% DNA from either of the parent, meaning thereby one allele comes from the mother and one from the father. Out of four alleles of the parents i e two alleles each, father gives one allele and mother gives one allele to the child.
xxix) The defence counsel had further put the following question to the witness which is reproduced alongwith its answer:
Ques: Does international standards permit you to interpolate any of the entries to the genoprint? Ans: When we get a genotype printout, it is the raw data which has to be interpreted by the expert. We compared the result with a standard ladder and raw data is edited by the expert and it is not the 767 interpolation. It is only the comparing with the reference ladder. We are entitled to edit the data but we are not supposed to interpolate. But I cannot say that this can happen in all the circumstances. xxx)After obtaining the answer to the above question the attention of the witness was drawn to serial No. A on page 1 of Ex. C1 pertaining to marker No. TH01 in which allele No 8 and allele No 9.3 were found written in hand and not in computer print.
The witness admitted it to be correct and clarified that since he had compared the peaks with the standard reference ladder and marked the written in hand the highest seized two peaks corresponding to the ladder, though he admitted that he had not initialled the same xxxi) Thereafter the witness explained various number/ ladder peaks on page number 768 2 after serial number 4 that these are the positions of the commonly found alleles in the reference ladder. He testified while comparing the samples, their peaks are compared with the peaks of the reference ladder for identification. He admitted it to be correct that on the basis of the standard reference ladder at the bottom on page 2 two alleles peaks/ numbers can be identified. xxxii) Regarding the question of the defence that on page 2 at serial No. 3,there is allele number of marker No. D3S 1358 pertaining to the alleles/peaks said to be from the body, the allele number shown as 16 is the tallest peak and on the right side of this peak there is a smaller peak. The witness admitted it to be correct and testified that he had not given the number of the peaks on the 769 right side since it was not a true allelic peak. He explained that there are some artifacts in the gel or in the PCR which lead to sometime spurious peaks which may be spikes, pullups stutter or even the dye blob. These peaks,spikes, pullups are commonly identified because of a sharp increase in the height instead of a true alletic peak which gradually increases in size and also decrease in size gradually. He further testified that if there are two peaks present at the marker, size of the higher peak cannot be lesser than the 67% i e 2/3rd of the lower sized peak. xxxiii) He denied in the cross examination that while taking the genotype prints the computer will not reflect the entries of all the peaks. He stated that computer provides raw data which is edited by the examiner 770 looking for the spikes, pullups, stutters and dye blob and then edit the data for the final print out.He admitted that only the number of peaks are edited at serial No.3 on page 2 of Ex. C2. He denied the suggestion categorically that at serial No 3 on page 2 pertaining to D3S 1358 he intentionally did not show the alleles numbers because the said allele number on the right side being in excess of 16 does not match with the allele at serial No. l or serial No. 2. He explained that it is not a true alletic peak. He testified that he had mentioned the true alletic peak only in his report and not the spurious peaks. The witness categorically denied that the large number of peaks depicts the contamination in the sample. To the contrary he stated that if there is contamination then the large 771 number of loci are expected. In answer to the defence counsel if there can be more than two peaks in a particular allele of a marker, he stated that more than two alleles may be present in a case of mixture and rare genetic anomaly like trisomy which he examined is a rare condition in which instead of two, three chromosomes are present.
xxxiv) The witness was put several general questions and one such question was is it correct, chances of degradation of biological material which remained unprotected in the environment, resulting in environmental insults, it breaks down. The witness answered in the affirmative that these samples got degraded in such circumstances and he admitted it to be correct that there are certain limits after which it is simply not 772 possible to produce the profile of DNA. xxxv) The witness admitted it to be correct that if proper precautions are not taken when more than one postmortem are conducted simultaneously by the same doctor, there is possibility of cross contamination of the blood samples. He also admitted it to be correct that dust, dirt, temperature, light, ultraviolet, rays, humidity, biological contamination etc may damage degrade or destroy the DNA as well as the blood samples.
xxxvi) The witness was further questioned that one of the important sources of DNA is drawn from bone or its marrow but the witness stated that it is only one of the sources and in answer to the other question of the defence counsel he stated that he did 773 not extract any DNA from a large piece of bone supplied to him as he selected the better sources for analysis.
xxxvii) The defence counsel further questioned him as to how he considered that bone is an inferior quality of DNA without conducting any test to this effect,the witness explained that the problems with a bone is that it requires more processing being a hard material then the easily digestible soft tissue materials with large blood supply ie large cellular material.
xxxviii) The witness further enumerated the basis carried out by him on being explained by the defence counsel. He stated that on 28.2.02 he opened the parcels and performed the tests for identification of blood, identification of bone and the 774 identification of the tissues. He started the DNA isolation on the exhibits on 28.02.02 and it was completed on 1.3.2002. After the DNA isolation, quality and quantity check, on 1.3.2002 he performed the Polymerase Chain Reaction for Power Plex 16. He carried no other test except those mentioned in the report.
xxxix) The witness was further questioned as to whether he took any steps to decontaminate the PCR machine to prevent carry over contamination. The witness again categorically replied that though he had not mentioned this fact in his report but it is a regular procedure for cleaning the equipments and auto cleaning the other consumables in the lab. The witness was further questioned as follows:
775
Q: Is it correct that DNA taken from blood samples of two real brothers which have similarities in their alletic configuration?
A: Yes. Brothers share more alleles than the unrelated individuals.
xl) The witness denied the suggestion that PCR techniques reduced the accuracy of DNA profiling sufficiently.
xli) He stated that PCR technology has number of advantages over the earlier conventional technologies and this is an international accepted technology.
xlii) He further denied the suggestion of the defence that DNA finger
printing is not fool proof and does not always provide conclusive evidence in criminal cases.
The relevant question in this regard is 776 reproduced alongwith its answers as follows: Q: Is it correct that DNA finger printing is not fool proof and does not always provide conclusive evidence in criminal cases. There are some technical and statistical tissues that affect the use of DNA evidence. Human error in handling tissue samples collected at a crime scene and during the laboratory work is always a possibility. Samples can accidentally be switched or mislabeled during DNA preparation or electrophoretic analysis. Also,the PVR reaction is highly prone to contamination. Remember that only a few molecules of extraneous DNA introduced into a sample are sufficient to produce a detectable PCR product. The most common source of DNA contamination is DNA from another sample or from the individuals collecting the samples or doing the lab. work.The usual result of contamination is the presence of DNA fragments that typically do not match any of the individuals involved in the crime.While thoughtful analysis of contaminated samples can often distinguish the presence of a suspects DNA pattern despite the presence of contaminating DNA attorneys tend to encourage 777 jurors to discount any evidence containing contaminated DNA ( as in the criminal trial of O J Simpson). Because only small segments of DNA are amplified the PCR test works with partially degraded DNA, however some DNA samples can be degraded to the point where PCR cannot amplify a fragment? A: I do not agree with the comment because the reliability of DNA test techniques was established in 1996 by the National Research Council II Report. xliii) He further denied the suggestion that artifacts, superious peaks, spike etc which are hardly visible has wrongly been shown and numbered as allelice peaks have not been numbered so as to pass it off as artifacts.
xliv) The defence counsel has claimed that the CD of genome scan and genotyper software from which PW37 had prepared the 778 genotype print out was not supplied and as such he could not effectively cross examine the witness nor could they obtain the opinion of another expert to verify that the report Ex.C1 was authenticated. He has made reference to the order of the Hon'ble High court dtd 4/12/03 whereby directions were issued to summon the expert witness alongwith the requisite record and the defence was allowed full opportunity to cross examine the witness. The perusal of the order of the Hon'ble High Court shows that there was no such direction to the witness to produce the CD of genome scan and genotyper software. The perusal of the testimony of PW37 dtd 18/5/04 shows that on that day he supplied the genotype print out to the defence counsel and at the instance of the defence counsel the witness was directed to supply the CD of 779 genome scan and genotyper software and his cross examination was deferred for next day ie 19/5/04. The perusal of record shows that on 19/5/04 the defence counsel cross examined the witness without raising any objection or bringing it to the knowledge of the court that the witness did not supply the relevant documents. If the documents were so important for the defence to cross examine the witness, it was the duty of the defence counsel to have insisted for adjournment of the case for want of documents as in my opinion the defence counsel was not an expert to cross examine the witness on the basis of these documents immediately on receipt of the same on 19/5/04 and would have required some time to go through the documents and to obtain experts opinion. However, no such plea was raised 780 before the court by the defence counsel and the cross examination of the witness was partly concluded on 19/5/04 and the remaining on 20/5/04. Even when the matter was adjourned for 20/5/04 he did not insist upon this document as it does not find mention either in the statement of the witness or in the ordersheet of the even date. The only suggestion I find on record to the testimony of this witness recorded on 19/5/04 is to the effect that he had intentionally not supplied the CD of genome scan and genotyper software to suppress the analysis of the DNA so as to prepare a fabricated report. Had the defence counsel insisted upon supply of these documents and had refused to cross examine the witness for want of these documents and if thereafter still the documents were not supplied 781 to him by the witness, the malafides could be attributed to him. If these documents were so important, I find no reason for the defence not to insist upon these documents when the witness again appeared for cross examination on 19/5/04. Besides, no expert witness has been examined in defence to the effect that in the absence of genome scan and genotyper software the analysis of the DNA conducted by PW37 could not be verified. The entire cross examination of this witness shows that he was cross examined on all the available data and material on record with expertise which he may have acquired himself or through an expert. He was cross examined at length on technical aspect of examination which the expert witness has answered satisfactorily and no suggestion to the contrary was made 782 to the witness. Despite lengthy cross examination the defence has failed to discredit his testimony. To my opinion the questions put to the witness during cross examination were more of general nature as to whether there can be degradation in the samples or contamination but the witness has nowhere been suggested that any such error has occurred in the sample of the present case. xlv) The purpose of examination of expert witness by the prosecution or by accused persons is only to bring truth on record and not to favour one or the other party. PW37 is an expert in the science of DNA profiling and has been reporting DNA cases since January 2001 after extensive training in DNA profiling. He is working as Assistant Director, Incharge DNA Unit, Biology Division, CFSL Calcutta and 783 this fact is not disputed by the accused persons. No suggestion was given to the witness, he was making a false statement or was under the influence of the complainant. Thus, merely for the reason that CD genome scan and genotype software were not supplied, the testimony of this witness cannot be thrown away if the same is otherwise trustworthy, reliable and helpful in the decision of the case.
xlvi) The perusal of the entire cross examination of the witness shows, he was nowhere suggested that in the present case there was contamination in DNA samples or samples were not found packed, labelled and sealed properly. It was also not suggested to him that the samples were degraded. xlvii) No doubt, this witness has admitted that there can be error in the sample 784 if the sampling is improper but to this effect PW8 Dr. TD Dogra and PW10 Dr. Sanjeev Lalwani who had collected the blood samples from the parents of the deceased and sample tissues from the unidentified dead body were not cross examined. No suggestion was given to these two witnesses during cross examination that the samples were not collected properly, were not packed properly or were not sealed properly. In the absence of such cross examination the presumption is that the testimony of PW7 and PW10 is correct and the samples were taken properly, hygenically observing all the precautions and were also packed and sealed properly.
xlviii) Similarly, though PW37 has admitted in cross examination that samples do get degraded if biological material remains 785 unprotected in the environment and that if more than one postmortem are conducted simultaneously by the same doctor, there is possibility of contamination. At the same time I find no question in this regard was put to PW3 Dr. Anil Singhal who conducted postmortem on the dead body. He was not suggested that the dead body was kept in unprotected environment. There is no evidence on record that simultaneously alongwith the dead body of unidentified person another postmortem was conducted by PW3 on 18/2/02 and even no such suggestion was advanced to the doctor PW3 who could have been the best witness to say that the dead body was kept in unhygenic condition which could damage, degrade or destroy the DNA as well as the blood samples. After PW3, the other best witnesses who could 786 throw some light on this aspect are PW8 and PW10 but they too were not subjected to cross examination to this effect. Hence, for all these apprehensions which cropped up in the mind of defence counsel, no evidence has been brought on record by the defence through cross examination of the relevant witnesses. Moreover PW8 has categorically stated in answer to court questions that DNA test can be conducted accurately in respect of dead body lying in open in a jungle or even in a drain if some sample can be taken from the body. He also categorically stated that outside contamination does not effect the DNA test so long as DNA can be retrieved from the tissues or bones. As such, in the present case it is presumed that sample were neither contaminated nor degraded.
787xlix) In view of the above discussion, I am of the opinion that the DNA report Ex.C1 prepared by PW37 is elaborate and is trustworthy.
l) It has already been proved on record through the testimony of PW8 Dr. TD Dogra and PW10 Dr. Sanjeev Lalwani that the blood sample from Sh. NM Katara were collected by Dr. Sanjeev Lalwani under the supervision of Dr. TD Dogra vide file No. CL.FOR.MED.No. 12/2002. Blood sample was soaked on gauze piece, kept on blotting paper and was dried under natural condition. The forms required for DNA test at CFSL Calcutta were duly filled. The samples were wrapped in blotting paper kept in airtight polythene bag. The polythene bag containing sample was kept in an envelope which was sealed with the seal of Deptt of 788 Forensic Medicine and labelled. In the similar manner, the blood sample of Smt. Neelam Katara was collected vide file No. CL.FOR.MED.No.13/2002.
li) The prosecution through the testimony of PW8 Dr. TD Dogra and PW10 Dr. Sanjeev Lalwani proved that unidentified dead body was pointed out by PW35 Anil Somania on 22/2/02 in the mortuary and thereafter the samples were taken from the body. This fact is not disputed by the defence in the cross examination.
lii) Similarly, vide the testimony of these two witnesses, it is proved on record that vide file No. CL.FOR.MED.No.14/2002 sample tissues were collected from the dead body of the unidentified person. All the tissues were kept in separate bottles and were labelled and 789 sealed with the seal of Department, sample seal was prepared separately. The bone was wrapped in a polythene. Thereafter all the tissues were kept in freezer for store and the bone was kept in refrigerator.
liii) It is also proved on record through the statement of both PW8 and PW10 that the samples were handed over to PW17 SI RC Makholia vide receipt Ex.PW8/D for carrying the same to CFSL Calcutta.
liv) Through the unrebutted statement of PW17 SI RC Makholia the prosecution has proved on record that when he received the sample packets alongwith the sample seal on 25/2/02, they were duly sealed and the seals were intact. It is also proved through his testimony that so long the samples remained in his possession the seal remained intact and he 790 deposited the samples with CFSL Calcutta with intact seal on the same day.
lv) The testimony of PW17 finds corroboration from the statement of PW37 whereby he testified that on 25/2/02 he received one sealed thermocol box, three sealed paper packets and one sealed cloth packet in his office relating to this case, the details of which are given in his report Ex.C1. The report Ex.C1 to this effect finds mention that the witness had received these samples in sealed condition alongwith corresponding seal impression forwarded to him. The report also speaks that the three sealed paper packets were marked A, B & C in the laboratory which contained Ex.A, B & C respectively and the sealed cloth packet was marked D in the laboratory which contained Ex.D. The sealed 791 thermocol box contained Ex.E, F, G, H, I & J. The details of the exhibits are already discussed in the facts of the case on page 25 and are not repeated here again.
lvi) From the report Ex.C1 it is proved on record that the exhibits A & B were the blood samples of the parents of deceased Nitish Katara whereas the exhibits C to J were the blood and tissue samples taken out from the unidentified dead body. As per the report it is proved on record that the small portions of Ex.A blood stained I, and Ex.B blood stained II, Ex.C blood stained III, Ex.F tissue sample II, Ex.J tissue sample VI were subjected to DNA isolation by organic extraction method. High molecular Weight DNA could be isolated from exhibits A, B & C while degraded DNA was recovered from Ex.F & J. From the report itself 792 it is clear that the degraded samples were not taken into consideration for conducting DNA which was the apprehension in the mind of the defence counsel. The report further proves that the DNA from the samples were subjected to multiplex PCR reaction for fifteen STR loci and amelogenin using commercially available Power Plexd 16 kit. Allelles of all loci in the Exhibits amplified successfully. The amplified products alongwith controls were run on Automated DNA Sequencer and analysis was carried out using GeneScan, Genotyper and Power Typer 16 Macro softwares with respect to standard ladder.
lvii) The report speaks that the body source of Ex.C Blood stained III, Ex.F tissue sample II and Ex.J tissue sample VI forwarded vide CL.FOR.MED.No. 14/2002 belongs to the 793 biological son of Mrs. Neelam Katara (source of Ex.D blood stained II) and Sh. NM Katara (source of Ex.A blood stained I). In view of the above discussion, in my opinion the prosecution has successfully proved through DNA test that the person whose unidentified dead body was recovered on 17/2/02 from Shikarpur Road was the biological son of Mr. NM Katara and Mrs. Neelam Katara. The prosecution has successfully proved the identity of the deceased as Nitish Katara. This circumstance proved by the prosecution is another link in the chain of circumstantial evidence.
E. ARREST, RECOVERY OF WEAPON
OF OFFENCE, WRIST WATCH,
TATA SAFARI.
➔ ARREST OF THE ACCUSED PERSONS:
i) In the present case the arrest of
794
accused persons took place in a very dramatic manner. Firstly they remained absconded from Ghaziabad after the incident as despite raids conducted at their respective houses and other places they were not traceable and as such court on the application Ex.PW35/8 of the IO issued process U/s 82 of Cr.PC on 20/2/02 . Secondly, on 21/2/02 an application Ex.DW6/1 was moved by DW6 Neeraj Gautam on behalf of accused persons in the court alleging harassment at the hands of the police and they sought information vide this application if they were wanted in any criminal case. The application was bearing the signatures of both the accused persons. Thirdly, on 22/2/02 another application Ex.DW6/7 is moved by the accused persons in the court on the ground of illness. This application is moved by Adv. Shailesh 795 Sharma and was bearing the signatures of both the accused persons showing their presence in Ghaziabad whereas as per the defence evidence produced vide testimony of DW12 Arvind Mishra and DW19 Jai Singh that they were in Allahabad on 2021/2/02 and in view if their statement U/s 313 Cr.PC the accused persons had left Allahabad for Delhi on 22/2/02. As such it is not possible for the accused persons to be present at two places at the same time ie at Ghaziabad when an application Ex.DW6/1 was moved before the court on 21/2/02 bearing their signatures and then again on 22/2/02 when another application Ex.DW6/8 was moved on their behalf seeking their personal exemption on medical grounds shows their presence at Ghaziabad.
ii) The prosecution has claimed that 796 the accused persons had managed their arrest at Dabra in a dramatic manner and has submitted that if the statement of accused Vikas u/s 313 Cr.PC is believed to be correct then he could not have been at Dabra at the time both the accused were allegedly arrested under Arms Act at Dabra. Spl.PP for State has drawn my attention towards the statement of accused Vikas Yadav U/s 313 Cr.PC dtd 15/5/07 which is reproduced as follows :
''From Allahabad we started we started for Delhi by changing trains ie Allahabad to Kanpur, Kanpur to Jhansi and Jhansi to Delhi. On the way we got down at Dabra Station for some refreshments but were apprehended and confronted unnecessarily by the Dabra police on being recognized, due to that our photographs were flashed everywhere ie print 797 media and electronic media.
Ques. When you left Allahabad?
Ans. We left Allahabad on 22/2/02 in the night for Kanpur.
Ques. What time you left for Jhansi from Kanpur?
Ans. In the 23/2/02 early hours we reached Kanpur and waited in the waiting room and same day we took train to Jhansi and from Jhansi we took a train to Delhi on 23/2/02 and we were to reach Delhi on 24/2/02''
iii) As per statement of accused Vikas Yadav U/s313 Cr.PC both the accused left Allahabad for Delhi by different trains ie Allahabad to Kanpur, Kanpur to Jhansi and then Jhansi to Delhi. On the way to Delhi they got down at Dabra station for refreshment. The accused categorically stated that they had left 798 Allahabad for Kanpur on the night of 22/2/02 and had reached there in the early hours of 23/3/03 and waited in the waiting room and thereafter they took a train for Jhansi and from Jhansi they took a train to Delhi on 23/2/02 for reaching Delhi on 24/2/02. The prosecution case is that the accused persons were apprehended at Dabra Railway Station around 4am and this fact stands proved by the testimony of PW 36 Inspt Ashok Bhadoria. There is no suggestion to the witness that the accused persons were not present at Dabra Railway Station in the early hours on 23/2/02. If the accused persons were present in the waiting room of the Railway Station at Kanpur in the early hours of 23/2/02, then they could not have been present at Dabra in the early hours since as per their own statement it was not possible as in the early hours they 799 waited in the waiting room at Kanpur and then on the same day they took a train from Kanpur to Jhansi and from there they changed the train for reaching Delhi on 24/2/02.Neither PW36 Inspt Ashok Bhadoria nor PW29 Ct. Brijmohan Mishra was given any suggestion that the accused persons were not apprehended on 23/2/02 in the early hours on 23/2/02. The other relevant question No. 109 U/s 313 Cr.PC put to accused Vikas Yadav is reproduced as follows :
''Ques 109 : It is further in evidence against you that you alongwith your coaccused Vishal Yadav were checked by Inspt Bhadoria SO, PS Dabra, Gwalior, MP at 4am on 23/2/02 when you and your coaccused came out of station alongwith other passengers who had alighted from train, what do you say?'' The accused answered as follows ; 800 '' We were not checked but straightaway apprehended after being identified and were falsely arrested''.
iv) The answer to this question clearly shows that accused Vikas has not denied their arrest at Dabra Railway Station at 4am which by no stretch of imagination could be possible if at the early hours they were present at Kanpur. I have taken judicial notice of the fact that the distance between Kanpur and Jhansi is 192kms and from Jhansi to Dabra the distance is 55kms due to which they could not have been present at Dabra Railway Station at 4am.
This proves fact that the arrest was stage managed by the accused persons.
v) So far the statement of accused Vishal Yadav U/s 313 Cr.PC is concerned, in answer to question No 95 regarding his arrest by the 801 police at PS Dabra on 23/2/02 he claimed that he alongwith his coaccused Vikas alighted from the train for some refreshment and some people perhaps from the police curtly questioned them in a misbehaving manner to which they objected and they were taken to the PS and were falsely arrested in the case. Whereas about the misbehaviour of the police officials at the railway station with the accused persons, no statement has been made by accused Vikas Yadav.
vi) In question No. 217 accused Vishal Yadav stated that they were adviced by their advocates to surrender before the local court in Ghaziabad so from Allahabad they took the next available train to Delhi to reach Ghaziabad and on the way alighted at Dabra for refreshments but were falsely implicated.
802
In answer to court question the accused Vishal Yadav stated as follows :
'' We were travelling in Gomti from Allahabad to Ghaziabad. Again said I do not remember''.
vii) It is strange to notice that both the accused when apprehended were together which shows that they were travelling together from wheresoever as it was only to their knowledge but there are material contradictions in their statement U/s 313 Cr.PC as accused Vikas Yadav stated that they left Allahabad for Delhi by different trains ie Allahabad to Kanpur, Kanpur to Jhansi and then Jhansi to Delhi whereas accused Vishal Yadav stated that they had travelled by Gomti from Allahabad to Ghaziabad. Though he tried to say it again that he did not remember which can only be 803 inferred that the did not remember the name of the train but it cannot be termed that he meant to say that they were coming to Delhi by different trains.
viii) The relevant witnesses to the arrest of accused persons at Dabra Railway Station are PW29Ct. Brij, PW36 Inspt Ashok Bhadoria and regarding their arrest in the present case are PW34 SI JK Gangwar and PW35 Inspt Anil Somania.
ix) PW36 Inspt Ashok Bhadoria deposed that on 23/2/02 at 12:45am he received an information from the informer that gang members of ''chaddi banyan gang'' were about to come from Jhansi to Dabra and there was possibility of a serious crime to be committed by them. He recorded this information from DD No. 1521 dtd 23/2/02. He formed a raiding party 804 alongwith SI Bhanwar Singh, HC Ashok Kushwaha, Ct. Ramvir, Ct. Gopal Singh, Ct.
Sukbir, Ct. Gajender, Ct. Kedar and recorded the departure entries at S No 1522. These entries are proved on record as Ex.PW36/1 and Ex.PW 36/2 respectively. On the way to the Railway Station PW29 Ct. Brij Mohan was also joined. Since it was time for the train to come, he alongwith Ct. Brij Mohan Mishra went to Maal Godown which had its gate towards sarafa bazaar. At 4am next train was to reach there. They started checking at 4am the passengers who were coming. He checked two persons namely Anil and Rakesh. Then two other persons who disclosed their names as Rajkumar and Sushil who are the accused present in court. He stated that he tried to search them but they tried to slip, then he caught hold of 805 them and interrogated them sternly and then they told their names as Vikas and Vishal. He deposed about recovery of cartridges from both the accused persons and their arrest under Arms Act. He further stated that in the disclosure statement made to him during interrogation both the accused told that they had kidnapped Nitish Katara from Kavi Nagar Ghaziabad. The witness testified that he alongwith the accused persons reached the PS at 6:30am, made arrival entry vide DD No. 1530 Ex.PW36/3 and registered FIR No. 99/02 against accused Vikas Yadav and FIR No. 100/02 against accused Vishal Yadav for recovery of cartridges which are Ex.PW36/4 & 5 respectively. He further testified that it was Eid Holiday on that day and concerned Magistrate had not come and he kept waiting for him. Thereafter he 806 produced the accused persons before Sh.Mukesh Dangi, the Duty Magistrate at about 11:45pm in the night of 23/2/02. He stated that UP police met him in the evening at PS at 5pm or 6pm. This witness was declared hostile by the prosecution and was cross examined on material particulars at length by the Spl. PP for State.
x) What is strange is that accused persons were arrested around 4am at Dabra PS but they were produced before the Duty Magistrate at 11:45pm which itself proves the influence of accused persons on the police. It appears that it was only with a view to avoid their judicial remand at Dabra and their being handed over to Ghaziabad police. This tactic was adopted to gain time and this doubt is cleared by PW36 Inspt Ashok Bhadoria himself 807 during the cross examination by the Spl.PP. He admitted it to be correct that on holiday also there is one Magistrate on duty throughout the day but still he failed to give any cogent reason as to why the accused persons were not produced before the Magistrate during day time and why they were produced at his residence at odd hours ie 11:45pm. The stage managed arrest is further proved from the admission of PW36 that he was knowing that accused Vikas was son of DP Yadav and his address was also on his record. He further admitted that accused Vishal was also known to him.
xi) It is strange that in his chief examination PW36 stated that both the accused had given their names as Rajkumar and Sushil and only after interrogating them sternly they disclosed their names as Vikas and Vishal. But if 808 he was already aware of their names and knew them then he had no reason to ask their names at the Railway Station. It is more strange to note that if the accused persons were known to him why he searched them and why he suspected them to be members of chaddi banyan gang as per the information. It is further strange that despite knowing the accused persons he did not inform DP Yadav but one Mr. Raghav and Avtar Singh as told to him by the accused persons. Besides, it is not digestible that the accused persons of such status would carry bullets with them.
xii) This witness has further stated that news about their arrest flashed in media / TV around 11am and he stated that he learnt from TV only that it was a high profile case. The question arises that how the matter went to 809 media and who informed them but his witness failed to give any answer.
xiii) Regarding the production of the accused persons before the Magistrate at 11:45pm, he stated that since he had 24 hours to produce the accused persons before the Magistrate so he did not produce them during day time but this explanation is not acceptable as there was no reason for him not to produce them before the Duty Magistrate during day time as they were simply arrested under Arms Act and were not required to be further interrogated after the recovery was effected from their possession.
xiv) The argument of the defence counsel that the arrest was not stage managed by them but by the prosecution and the accused persons were falsely implicated under Arms Act, in my opinion has no force , as if the 810 prosecution was behind all this there was no need to get these accused persons arrested under Arms Act falsely at PS Dabra as they could straight away be got arrested in the present case.
xv) Besides, it is admitted by the accused persons in their statement U/s 313Cr.PC that they were arrested at Dabra Railway Station though they claimed that it was their false arrest, however at the same time it has not been reasonably explained by the accused persons as to how they reached Dabra. They have also failed to produce any documentary evidence of their travel from Ghaziabad to Allahabad, the name of the train and what time they reached there and what time by which train they started either for Delhi or for Kanpur and then to Jhansi and thereafter to 811 Delhi. This fact could only be disclosed by the accused persons since it was only within their special knowledge.
xvi) The influence of the accused persons on the witness PW 36 Inspt Ashok Bhadoria is writ large as he did not support the prosecution case on material particulars, he did not produce the accused persons before the concerned Magistrate during day time, consequently the jail authorities refused to take their custody and accused persons succeeded in avoiding jail that night. It is unheard of that accused persons arrested under Arms Act at 4am were produced at the residence of the Magistrate at 11:45pm that too without any explanation.
xvii) This witness testified during cross examination by Spl. PP that after the accused 812 persons were ordered to be sent to the judicial custody on the night of 2324/2/02 he talked to the Jailor on telephone who told him that it was night time and he would no be in a position to take accused persons to jail and that he should bring them to jail in the morning therefore on that night he kept the accused persons in the lockup. He further admitted that he did not seek any permission from the Magistrate to keep the accused persons in the lockup after refusal by the jailor. It is the strange conduct of the witness that he without permission from the court detained the accused persons in the lockup which again fortifies my view that he was hand in gloves with the accused persons and intentionally produced the accused persons before the Duty Magistrate at 11:45pm the odd hours and thereafter kept them 813 in the lockup in the PS and made no effort to send them to the jail. Besides being police officer he was also the SO of PS Dabra and it is presumed that he was well aware of the laws, rules and regulations, particularly, that if the accused are produced at late hours at the residence of the duty magistrate he could have obtained the order simultaneously for directions to the Jail Supdt to receive the custody of the accused persons in jail but he did not make any such effort which shows that he had no sanctity for law.
xviii) It is further important to note that he was not the IO of the cases registered vide FIR No. 99/02 and 100/02 against the accused persons. He admitted that after he brought the accused persons to the PS at 6:30am he ceased to be the IO and thereafter the IO was SI 814 Bhanwar Singh and the witness admitted that after he had transferred the investigation of the case he had no role to play in the investigation of these two cases. Then why he was taking so much interest in the present case and influencing the investigation. His testimony to the effect that he had spoken to the jailor on telephone does not find mention in the GD. xix) The testimony of this witness that UP Police had reached at Dabra PS at 5 or 6pm also does not find support from any entry in the GD.
xx) During cross examination by Sh. SK Sharma, adv he testified that UP Police had made arrival and departure entries at PS Dabra at 13:20 hours on 24/2/02 ie after obtaining the custody of accused persons from Dabra Jail and the copy of the relevant entry is Ex.PW36/8. He 815 admitted that there is no entry in any record of PS about arrival of UP Police at Dabra either at 5pm, before or after 5pm on 23/2/02. During the cross examination of Sh. SK Sharma,adv he further stated that about 15 / 16 UP Police officials had come to PS Dabra and they said that they wanted to interrogate accused persons and he permitted them to do so. He admitted the suggestion of the defence counsel that accused persons were taken to a room and were interrogated by UP Police for 5 6 hours and Sh. Raghav SP UP Police was also in that room at that time when the accused persons were interrogated. However, the aforesaid testimony does not find corroboration from the statement of Anil Somaia or any other official record maintained at PS Dabra. This witness has been making statement at different stages 816 according to his convenience and particularly favourable to the accused persons but does not find corroboration from the record or from testimony of other witnesses. Particularly when he himself testified in answer to a court question that as per the General Diary brought by him the accused persons were sent in the lockup at about 6:30 /6:45am, thereafter they were given food at 9:45amand thereafter the accused persons were taken out for producing them before the Judicial Magistrate at about 11:30pm. The record thus speaks of the relevant fact that the accused persons remained in the lockup of the police station from 6:30amto 11:45pm. Therefore the testimony of this witness that the accused persons were interrogated for 45 hours in a room is a false statement. Moreover this witness himself admitted in 817 answer to court question that it is not in his discretion to handover any accused who is in his police custody in their lockup to any police official of other State. This itself shows that the accused persons were never handed over to the UP Police for interrogation as claimed by this witness during cross examination by Sh. SK Sharma the defence counsel. By making such statement it appears that he was tutored to make favourable statement during cross examination. Even both the accused in their statement U/s 313 Cr.PC have claimed that they were interrogated by Ghaziabad police at Dabra on 23/2/02. Regarding non making of the entries by the UP Police in the DD register on 23/2/02 at 5pm he stated that UP Police had told him that they would make their arrival and departure in the date of 24/2/02 at the 818 time when they would take the accused persons, however there seems to be no logic behind this as if they had reached PS Dabra on 23/2/02 there was no reason for them not to make any entry in the register as their presence was obviously to be recorded in the court proceedings at the time of judicial remand of the accused persons.
xxi) This witness has also made contradictory statement with regard to the recovery of railway tickets from the possession of accused persons. He testified that railway tickets were recovered from their possession in their search but he could not produce record of any such recovery. If railway ticket were recovered from them why he could not produce the same before the court. Neither Railway tickets nor any seizure memo to this effect was 819 produced in the Court. It shows that railway tickets were never recovered. Even PW29 Ct.Brijmohan whose evidence shall be discussed hereinafter, also admitted that in his presence no tickets were recovered from the possession of accused persons. This lends support to the fact that Inspt Ashok Bhadoria is a false witness.
xxii) PW36 Inspt Ashok Bhadoria had testified during cross examination by Spl.PP that he had himself informed Ghaziabad police through wireless as well as through telephone on No.01204711843 from his mobile No.9827214857 at 7/8 am. Though no documentary evidence to this effect has been produced on record.
xxiii) PW29 Ct. Brij Mohan Mishra was present alongwith Inspt Ashok bhadoria at 820 Railway Station Dabra for checking near Maal Godown. He testified that both the accused persons were arrested since they had run away from near Maal Godown and as such they were suspected and were apprehended. This witness during cross examination by Sh.SK Sharma, adv categorically stated that in his presence Inspt Ashok Bhadoria had not seized railway tickets from the accused persons. Regarding the presence of UP Police at PS Dabra this witness categorically stated in answer to the question of the defence that UP Police had reached there in the evening of 24/2/02 which shows that UP Police never visited PS Dabra on 23/2/02. xxiv) So far PW35 SI Anil Somania he categorically testified that on 23/2/02 he was present in PS Kavi Nagar when he learnt from TV News footage that Vikas and Vishal Yadav 821 had been arrested in Dabra, MP. He testified that after he came to know of the fact, he talked to his SSP and informed him about the news,then SSP made telephone call at Dabra to confirm the news whereby it was confirmed that both Vishal and Vikas Yadav had been arrested in Dabra MP. He testified that thereafter he was given direction to go to Dabra and after receiving directions he prepared the police party for going to Dabra and made DD entry No.20 in GD dtd 23/3/02 at 12:25 pm (afternoon) and that the police party included SI JK Gangwar and few constables. He proved the DD entry as Ex.PW35/10. He testified that he had reached PS Dabra at 11pm on 23/2/02 and first went to PS Dabra where he learnt that from there accused persons had been taken for production before the judicial magistrate at 822 his house in the night. He also learnt that the accused persons were arrested under Arms act with PS Dabra. UP Police went to the house of Judicial Magistrate where the accused persons were being produced and he moved an application Ex.PW35/11A (original taken out from the record of Dabra court and the carbon copy of the same is Ex.PW35/11) that accused persons should not be released on bail. He stated that on the intervening night of 23 24/2/02 they stayed in a small hotel at Dabra arranged by Inspt Ashok bhadoria. On 24/2/02 he recorded the statement of Inspt Ashok Bhadoria and PW29 Ct. Brij Mohan. He stated that he had correctly recorded the statement of Inspt Ashok Bhadoria Ex.PW35/12. He further testified that he applied for 2 days transit remand of the accused persons to the judicial 823 Magistrate around 12 noon vide application Ex.PW35/13. The transit remand for two days of the accused persons was accorded. The order of the concerned Judicial Magistrate is part of the Ex.CW2/1 which is the entire record pertaining to the proceedings pending against the accused persons at Dabra. He stated that he did not get an opportunity to interrogate the accused persons when they were in JC at Dabra or when they were in custody at Dabra. He stated that he took custody of the accused persons from Jail at Dabra and started from Dabra at 3:30pm on 24/2/02. He stated that they reached Ghaziabad on 25/2/02 at 5am and accused were produced in the court of CJM Ghaziabad at about 10am. During cross examination he testified that he did not receive any message from Dabra PS through telephone 824 or mobile that they had arrested the accused persons. No suggestion to the contrary was made to the witness by the defence counsel that he was informed by SI Ashok Bhadoria through wireless message and from his mobile number on 01204711843 that the accused persons were arrested at PS Dabra. Regarding the arrival of UP Police at Dabra, he again categorically stated that he had reached there at 11pm and entry was made at the PS. Again no suggestion to the contrary was given to the witness by the defence counsel. However, since the entry was made by him in the register, it was the duty of the police of Dabra to have produced that record before the court. xxv) The other witness examined to this effect is SI JK Gangwar PW34 who has deposed on the lines of Inspt Anil Somania. 825 During cross examination he too deposed that they had reached Dabra at 11pm and had taken custody of the accused persons from jail on 24/2/02.This witness has not been suggested by any of the defence counsel that UP Police had reached PS Dabra at 5pmand had interrogated both the accused persons in a room for 45 hours.
xxvi) In view of the above discussion, it is proved on record that accused persons in connivance with Dabra Police stage managed their arrest and thereafter were arrested by PW35 SI Anil Somania in the present case with order of Judicial Magistrate, Dabra on 24/2/02.
➔ DISCLOSURE STATEMENTS OF ACCUSED PERSONS/ RECOVERY OF HAMMER EX. P 826 1, WRIST WATCH EX. PW7/A2 AND TATA SAFARI EX.PW 33/Pl :
i) After the accused persons were arrested at railway station Dabra under Arms Act, on the application Ex.PW 35/13 of IO SI Anil Somania two days transit remand was granted and accused persons were brought to Ghaziabad on 25.2.02 and were produced before CJM Ghaziabad. To this effect PW 35 SI Anil Somania, IO of the case, testified that he applied for two days custody remand of accused persons vide application Ex.PW 35/13 around 12 noon on 24.2.02 and two days transit remand of accused persons was granted.
During transit remand, he stated, he had no talk with the accused persons and did not interrogate them as in UP no statement of accused can be recorded without the 827 permission of the Magistrate. He testified that he made an application Ex.PW 35/15 before the CJM Ghaziabad and vide order B to Bl on Ex.PW 35/15 permission was given by the CJM Ghaziabad for recording the statement of accused persons. So he went to jail and recorded the statement of accused persons in the case diary. He testified that accused Vikas Yadav made disclosure statement Ex.PW 35/16 where he disclosed and confessed about the kidnapping and murder of Nitish Katara alongwith other accused persons and that he could get recovered weapon of offence ie hammer. He further testified that disclosure statement Ex.PW35/17 of accused Vishal Yadav was recorded by him, whereby he had made disclosure that he could get recovered wrist watch of the deceased. He further testified the 828 disclosure statements of both the accused persons were recorded in jail under court order. He further stated that as per, practice in UP disclosure statement is recorded in the case diary and even statement of witnesses U/s. 161 Cr. PC are also recorded in the case diary. It is seen that the disclosure statements of both the accused are not bearing the signature of the accused persons. The defence counsel argued that these disclosure statements of both the accused persons are fabricated, firstly for the reason these are not bearing signatures of the accused persons and secondly there is no witness to these disclosure statements from jail or any independent witness.
ii) So far the signatures of the accused persons on their respective disclosure 829 statements are concerned, it is not a mandatory requirement as the veracity of disclosure statement is always tested by the discovery of relevant fact in pursuance of the same.
iii) The defence counsel for accused Vikas Yadav in his written submissions has made reference to the authority reported in 1998 CrLJ Page 2479 Karnataka High Court, FellixJoannas Vs State of Doddapete Police State, Shimoga and has claimed that in this authority it was held that:
'' In that view of the matter, we perused the voluntary statement of the accused. We found to the utter shock that the confession of the accused was not signed by the accused. We asked ourselves the question what reliance can 830 be placed on the confession of the accused which is not signed by the accused or which does not bear the thumb impression of the accused on that statement renders such statement unreliable. The Supreme Court in the case of Jackaran Singh Vs State of Punjab, at para 8 has held that the absence of the signature or thumb impression of the accused on the disclosure statement recorded under section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement.''
iv) To the contrary Ld prosecutor has submitted that there is no such requirement that the disclosure statements must be signed by the accused persons. To that effect, he has cited an 831 authority reported in 2 003 (9) SCC 277, wherein:
"n either the disclosure nor recovery memo was bearing signature of accused, however, it was further held that pursuant to disclosure statement recovery was effected from a well at the pointing out of the accused which in no manner leaves any doubt that the recovery was effected on the basis of voluntary disclosure statement."
v) In view of the above authority, in my opinion, it is not mandatory that the disclosure statement of the accused must bear his signature as the authenticity of the disclosure statement is to be tested from the discovery of a fact in furtherance of the same.
vi) So far the other contention of the defence counsel is concerned that disclosure 832 statements are not witnessed by Jail authorities or by independent witness, it is on record that these disclosure statements were recorded with the permission of the Court and these have to undergo the test of truthfulness which depends on whether the discovery of fact effected in pursuance of the same inspires any credence and is reliable and whether the relevant witnesses to recovery have withstood the test of cross examination. Since these disclosure statements were recorded in jail there could not have been any independent witness available in the jail. Merely, for the reason these were not witnessed by jail authorities, these cannot be ignored. The true test that these statements were made voluntarily is whether any fact was discovered as a consequence.
vii) The prosecution has claimed that 833 in furtherance of the disclosure statements of both the accused persons, recovery of hammer Ex.P 1 at the instance of accused Vikas Yadav and recovery of wrist watch Ex.PW 7/Article A2 was made at the instance of accused Vishal Yadav from Shikarpur Road from near the place where the deadbody was recovered. The relevant witnesses to recovery of hammer Ex.Pl and wrist watch Ex.PW 7/Article A2 are PW 34 SI JK Gangwar and PW 35 SI Anil Somania, IO of the case.
viii) PW 34 SI JK Gangwar had accompanied the IO SI Anil Somania and
participated in the investigation of the case on 28.2.2002 when as per the prosecution both the accused persons had led the police party to Khurja Road Bulandshahar near Alwar Railway Crossing where the deceased was 834 allegedly killed by the accused persons. PW 34 testified that the accused persons led the police party to Khurja Road Bulandshahar near Alwar Railway Crossing. Accused Vikas Yadav pointed out the place and told that Nitish Katara was killed at that place with the help of hammer by striking hammer on his head .
He stated that a siteplan of the said place was prepared by the SI Anil Somania. It is stated that they had reached there around 12 noon. From there accused persons led them to Khurja Shikarpur Road and pointed out the place where the deadbody of the accused was burnt. The siteplan of this place was also prepared by the IO. Thereafter accused Vikas Yadav got recovered the hammer which was used in the crime from the bushes which were about 7 steps away from the place pointed 835 out by him of burning the deadbody. It is stated that the accused himself had taken out the hammer from among the bushes by searching. He identified the hammer in the Court as Ex.Pl. The witness further testified that the bushes at the spot were the kind of grass which is called pattel in UP and it is used for making straw roofs i e the thatched roofs and he gave the height of the bushes around 2 / 3 ft at that time. He further categorically stated that the hammer which was recovered by the accused Vikas Yadav from among the pattel bushes was not visible from the road.
ix) Thereafter he testified that wrist watch Ex.PW 7/Article A2 was got recovered by accused Vishal Yadav from the bushes about 5 steps away from the place 836 where accused Vikas Yadav had searched and got recovered the hammer. It is stated that recovery memo of the hammer and wrist watch Ex.PW 34/1 was prepared by the IO. He further stated that apart from the police persons two public witnesses Aslam and Raghu were present there and recoveries were made in their presence.
x) PW 34 SI JK Gangwar further testified that one advocate Sh Satyapal Singh was also present when recoveries were effected at the instance of accused persons. He stated that Sh. Satyapal Singh was the advocate of the accused persons. He further stated that advocate Sh Satyapal Singh refused to sign the recovery memo stating that he was advocate of the accused persons and would not be able to defend the case on their behalf, 837 if he becomes a witness. Further advocate Sh. Satyapal Singh had taken the copy of recovery memo and he signed the original recovery memo by writing Ek Prati Prapt Ki that he had received the copy of the seizure memo. This witness proved the endorsement made by advocate Sh Satyapal Singh and his signature as Ex.PW 34/lA on the recovery memo EX PW 34/1.
xi) PW 35 SI Anil Somania corroborated the statement of PW 34 JK Gangwar on material particulars. He testified that he moved an application for police custody remand Ex PW 35/21 for police custody remand of both the accused persons. The accused persons were summoned by the Court for 27.2.02 and on the same day the Court granted police custody remand for 24 hours w.e.f 9 am on 838 28.2.02. He further testified that on 280202 he went to jail after making entires in the GD of the PS vide DD NO 11 Ex. PW 35/22. He took the custody of the accused persons from jail and left at 9.25 am. He was accompanied by SI JK Gangwar, SI Tej Ram and five constables. After the accused persons were taken in police custody they led the police party to Khurja Road 14 KM from Bulandshahar. They told them to stop the vehicle about 25 steps before Railway crossing of Aughwar Pur and pointed out the place where Nitish Katara was murdered. He prepared the sketch of the place Ex.PW 35/23. Thereafter the accused persons led the police party from Khurja to Shikarpur Road. The witness while giving the identification of the place stated that there was T point on that road where from one road 839 goes to Phasu and other goes to Shikarpur. The accused persons took them to Shikarpur Road and there the police party was stopped at the place near the field of Zahir Vakeel as told by the accused persons. He further stated that he joined Raghu and Aslam two public witnesses who were going to Khurja on the same road and were stopped and asked to join the investigation. He further stated that he and other police officers gave search to the witnesses and they also took the search of the witnesses to ensure there was no incriminating with them. Accused Vikas Yadav walked about 6 steps from the road towards bushes and from there he took out a hammer and handed over to him. It is further stated that he pointed out a blackish earthen spot on the ground that deceased was burnt there. A little 840 away from there accused Vishal Yadav went to the fields and brought a wrist watch and gave it to him.
xii) It is stated that under the directions of the Court one advocate Sh Satyapal Singh Yadav was accompanying them from Ghaziabad and was present at the time of recovery of hammer and wrist watch and pointing out of the spot of burning of deceased Nitish Katara.
xiii) The witness was shown the hammer in the Court and he identified the same as Ex.Pl as the same which was got recovered by the accused Vikas Yadav. He further stated that he had sealed the same at the spot with the seal bearing his initial. He identified the cloth in which it was sealed as Ex.PW 34/A2. This witness was then shown wrist watch Ex.PW 7/Article A2 which he 841 claimed was sealed in a cloth parcel at the spot. He identified the cloth Ex.PW 7/Al and wrist watch Ex.PW 7/Article A2. He proved the recovery memo of hammer and wrist watch as Ex.PW 34/1.
xiv) He further stated that the copy of recovery memo Ex.PW 34/1 was received by advocate Sh Satyapal Singh at the spot itself vide endorsement Ex.PW 34/1A on the recovery memo EX.PW 34/1. He testified that advocate Sh Satyapal Singh Yadav was practising advocate of Ghaziabad Courts and at that time was President of Bar Association.
xv) PW35 SI Anil Somania was subjected to lengthy and gruelling cross
examination by the counsel for accused person. xvi) The prosecution has claimed that at the time of recovery advocate Sh Satyapal 842 Singh was also accompanying the police party and accused persons in pursuance of the court order and he also signed the recovery memo Ex.PW34/1, whereas the accused persons examined DW 3 Sh Rajender Chaudhary to the effect that it is he who had accompanied them during police custody remand and no recovery was affected at the instance of the accused persons. xvii) Before I proceed to discuss as to whether the prosecution has succeeded in proving the recovery effected in furtherance of the disclosure statements of accused persons Ex. PW 35/16 and Ex. PW 35/17, it is to be seen which advocate accompanied them during their police custody remand whether it was advocate Sh Satyapal Singh Yadav or Sh Rajender Chaudhary.
843
xviii) Advocate Satyapal Singh Yadav
has been examined as DW 22 and Sh
Rajender Chaudhary as DW 3.
xix) Before I discuss the testimonies of
both these defence witnesses it is necessary to find what defence accused persons took in their statement U/s 313 Cr. PC.
xx) The relevant question to this effect are reproduced as follows :
''Q.130 It is further in evidence against you that on 28/2/02 in pursuance to your disclosure statement you alongwith your co accused in presence of advocate Mr. Satpal Yadav, who was present alongwith you in compliance of the court order, led the police party near railway crossing of Aughwarpur and pointed out the place where Nitish Katara was murdered, what do you say?844
Ans. It is incorrect. '' xxi) In answer to this question he did not
claim that it is advocate Rajender Chaudhary who had accompanied them in their police custody remand on 28.2.02.
''Ques. 142 : It is further in evidence against you that one advocate Sh. Satpal Singh Yadav had accompanied the police party and the accused persons from Ghaziabad for investigation and he was present at the spot when recovery of hammer Ex.P1, wrist watch Ex.PW7.Art. II and point out of black earth spot referred above were effected, What do you say?
Ans. It is all incorrect. Satpal Yadav was never my advocate and he never accompanied us. No recovery was effected ever and there was no pointing out by us.'' 845 Ques. 143. It is further in evidence against you that a copy of recovery memo was received by advocate Mr. Satpal Singh Yadav at the spot who made an endorsement Ex.PW34/1A regarding the receipt of the copy by putting his signature on Ex.PW34/1, what do you say?
Ans. It is incorrect. He was not present there.
Ques. 144 It is further in evidence against you that advocate Sh. Satpal Yadav refused to sign the recovery memo Ex.PW34/1 as a witness on the plea that he was an advocate of the accused persons and would not be able to defend the case on their behalf, if he becomes a witness, what have you to say? Ans. It is all incorrect. I have already stated that Satpal Singh Yadav was not my advocate 846 nor was he present.'' xxii) The perusal of the statement of accused Vikas Yadav U/s 313 Cr.PC shows that he did not state about the presence of advocate Rajender Chaudhary with them in their police custody remand. He claimed that at one go almost 20 blank sheets were got signed by the police from them under coercion and alleged recovery memos and disclosures have been fabricated on these sheets.
xxiii) Similarly accused Vishal Yadav though denied in his statement U/s 313 Cr PC that advocate Satpal Yadav was present alongwith them in police custody remand on 28.2.02. He too did not state that DW3 Rajender Chaudhary had accompanied them in police custody remand on 28/2/02.
xxiv) Court record speaks that PW 35 847 SI Anil Somania, IO of the case moved an application Ex.PW 35/21 on 26/2/02 for police custody remand of the accused persons which was forwarded by SP City Sh SP Raghav vide endorsement Ex. PW 35/21B . This application was allowed vide court order dtd. 27.02.02 Ex.PW 35/21A and police custody remand for 24 hours was granted wef 28.2.02 9 am. The court also directed IO to get the accused persons medically examined after taking their custody from jail and before handing over them back to jail.
xxv) The order of the CJM Ghaziabad dtd 27/2/02 on the application of the IO for PC remand of accused persons shows that it also allowed one lawyer of the accused persons to be present during police custody remand with direction not to interfere in the 848 proceedings. It is also on record that two separate applications were moved by the accused persons for permitting four lawyers of each accused to accompany them in PC remand, however these applications were not allowed in view of the earlier court order dtd 27/2/02 permitting one lawyer to accompany them during PC remand. The prosecution has claimed that it is advocate Sh Satyapal Yadav who accompanied the accused persons in police custody remand and he obtained the copy of the recovery memo at the spot of recovery itself and signed the recovery memo Ex PW 34/1 besides the accused persons. xxvi) The prosecution had not cited advocate Satpal Yadav as a prosecution witness since he had accompanied accused persons during their police custody remand under court 849 order, but an attempt was made by the prosecution to examine him as a prosecution witness during trial. An application to that effect was moved for summoning advocate Satpal Yadav as a prosecution witness but it was dismissed vide order dtd. 29.07.2006 and this order was challenged before the Hon'ble High Court and vide its order dtd. 6/8/07 allowed prosecution to examine the witness but then prosecution chose not to examine him. No doubt it is the prerogative of the prosecution to decide which witness is to be examined and which witness is to be dropped. xxvii) Since prosecution chose not to examine advocate Satpal Yadav as prosecution witness, he was produced by the accused persons in defence evidence as DW 22. Before discussing the evidence of this witness it would 850 be appropriate to discuss the testimony of DW 3 Advocate Rajender Chaudhary.
xxviii) DW3 Advocate Rajender Chaudhary testified that he had appeared
as an advocate for accused Vikas Yadav in the present case in Ghaziabad Courts. On 27.2.02 he moved an application Ex.DW 3/A on behalf of accused Vikas Yadav seeking permission to remain with the accused during police custody remand. In the application he had given the names of four advocates including himself, however the court had permitted one advocate to be with both the accused persons during police custody remand. He stated that the order of CJM on the application itself was passed ie Ex.DW 3/B and 3/C respectively. He stated that during police custody remand of 3 days wef 28.2.02 851 to 01.3.2002 he had accompanied both the accused persons. He stated that accused persons were collected by the police from the jail on 28.2.02 . He had gone to the jail in his own vehicle. When he reached there police alongwith the accused persons were already outside the jail and he showed the order of the court to the police. The IO of the case told him that he should join them in his own private vehicle and they would not permit him to sit alongwith them in their vehicle. He stated that he followed the police in vehicle No. DL 5CB 4595 but he could not tell which vehicle it was, though he stated that it was a big vehicle and was provided by the person who was perusing the case on behalf of accused persons and had engaged his services. He further stated that he followed the police in the 852 aforesaid vehicle, firstly to Khurja where some Inspt belonging to Khurja was already present alongwith the jeep. The aforesaid jeep was followed by the police of Ghaziabad who was followed by him and they all stopped about 2 / 3 kms on Shikarpur Road away from Khurja. He stated that he was the only advocate who was following the police vehicle, though he admitted, in answer to court question that besides him the names of other three advocates were also given in his application Ex.
DW 3/A. xxix) In answer to another court
question he admitted that there was no written order by the court in his favour to accompany the accused persons in police custody remand. He voluntarily stated that the court had directed him verbally.
853xxx) So far accused Vikas Yadav is concerned, DW3 stated that it was not to his knowledge if any application was moved on his behalf before CJM Ghaziabad by any advocate seeking permission to accompany the accused in police custody remand.
xxxi) Thereafter in answer to a suggestive question by Sh. GK Bharti, adv , he stated that it was with the consent of lawyers of Vishal Yadav as well as Vikas Yadav he was chosen to accompany the accused persons. He stated that since he was already pursuing the case against accused Vikas Yadav, therefore all the counsels for both the accused arrived at a consensus that he should accompany both the accused in police custody remand. He further stated that both the accused had told him that on the way the police had obtained his 854 signatures on blank papers.
xxxii) He further stated that so long he remained present with the accused persons and the police no recovery was effected at the instance of either of the accused nor any proceedings were conducted.
xxxiii) This witness claimed that on 1.3.02 when accused persons were produced before CJM Ghaziabad he was present there and informed the court orally that he was appointed in this case to accompany the accused persons and that no recovery was effected in his presence but court told him that as per the police recovery of hammer and watch was effected at the instance of the accused persons , so then he moved an application Ex.DW 3/D alongwith affidavit Ex DW 3/E before the Court and that the court 855 made an order Ex.DW 3/F. xxxiv) This witness was cross examined at length by Spl. PP for State. The perusal of the testimony of the witness shows though he claims himself to be the counsel for the accused persons but he was not aware that on 27.2.02 Court had allowed the police custody remand only for 24 hours w.e.f. 9 am 28.2.02 and not for three days as deposed by him in his chief examination which is reproduced as follows: " I had accompanied both the accused during police custody remand of three days wef 28.2.02 to 1.3.02."
xxxv) From his above statement is appears that perhaps he forgot that there are only 28 days in the month of Feb except in the leap year when there are 29 days. He 856 failed to make out that from the period between 28.2.02 to 1.3.02 there are only 24 hours which means only one day. This shows that this witness never accompanied the accused persons. This witness further claimed that the police did not allow him to accompany them in their vehicle and told him to join them in his own private vehicle so he followed the police in his vehicle No. DL 5CB 4595 but he could not tell which vehicle it was and he simply claimed that it was a big vehicle arranged by the person perusing the case on behalf of the accused persons. The court record shows that in his application Ex DW 3/D moved before the CJM Ghaziabad it is mentioned that this witness had remained alongwith the vehicle of the police in his own private vehicle DL 5CB 4595, whereas in his chief examination he 857 stated that this witness was provided by the persons who was pursuing the case of the accused Vikas Yadav.
xxxvi) The accused persons in their statement U/s 313 Cr PC have not claimed that Adv. Rajender Chaudhary remained with them during police custody remand. Version of DW 3 is that he followed them firstly to Khurja where some inspector belonging to Khurja was already there in a jeep and this jeep was followed by the police of Ghaziabad which was followed by him and they all stopped about 2 /3 km on Shikarpur Road. This defence has come on record for the first time and does not even find mention in the statement of the accused persons U/s 313 Cr PC.
xxxvii) It also appears from the record 858 that there was no consensus between this witness and adv. Satpal Yadav as to what statement was to be made before the Court, as this witness testified that he was verbally directed by the court to accompany the accused persons in police custody remand, whereas DW 22 Satpal Yadav stated it was by consensus of all the advocates of both the accused. Testimony of this witness further shows that he was not even aware of if any application was moved by the advocate for accused Vishal also seeking permission to accompany him during police custody remand.
xxxviii) During the examination of this witness even the conduct of Sh GK Bharti counsel for accused Vikas Yadav is observed as he was putting questions to the witness which were suggestive of the answers and were more 859 in the form of cross examination.
xxxix) The witness had already testified that court verbally directed him to accompany the accused persons during police custody remand but this was not suitable to the defence, so the following question was put by Sh GK Bharti, the counsel for accused Vikas Yadav during chief examination of the witness. The question is reproduced as follows: Ques: I put it to you that with the consent of lawyers of Vishal Yadav as well as Vikas Yadav, you were chosen to accompany the accused persons? xl)It is observed that answer to the above question was inherent in itself and the witness being a lawyer was also wise enough to understand the language of the defence counsel and he promptly answered the question by saying 'Yes' .
860xli) It is strange that in one breath the witness stated that it was under the verbal direction of the Court he had accompanied the accused persons, whereas in another breath in answer to the question of the defence counsel he stated that he was chosen with the consent of lawyers of both the accused to accompany them in police custody remand.
xlii) This witness was tutored and under the influence of the defence counsel which fact is clear from the conduct of Sh GK Bharti, counsel for accused Vikas Yadav, who kept on suggesting the answers to the witness in low tone and this is observed by the Court while recording the statement of the witness. Since I myself recorded the statement of the defence witnesses , thus I am conscious of the conduct of the defence counsel. It is also 861 observed that when DW 3 Rajender Chaudhary stated that accused Vikas Yadav told him that police had obtained his signatures on the blank papers on the way, Sh GK Bharti, counsel for accused Vikas Yadav suggested him the name of Vishal Yadav also in low tone and then the witness was put the following question: Ques: Did accused Vishal disclose anything to you during the aforesaid period?
xliii) Again the answer was obvious that after accused Vikas Yadav, Vishal Yadav also told him that police had obtained his signatures on blank papers.
xliv) The theory that the signatures of the accused persons were obtained on blank papers during police custody remand on 28.2.02 is again a false story as if no recovery was effected from the spot at the instance of the 862 accused persons and no recovery memo was prepared in their presence on which the signatures of the accused persons were obtained besides the signature of advocate Satpal Yadav, the question arises when the recovery memo Ex.PW 34/1 was prepared by the police as advocate SP Yadav testified that he had signed the aforesaid memo at about 12 mid night in his chamber. At the same time DW3 Rajender Chaudhary stated in his cross examination that they had reached PS Ghaziabad before 11.30 pm and then went to the office of Chief Medical Officer MMG Hospital ie for medical examination of both the accused persons. Then at what time the aforesaid recovery memo was prepared by the police on the blank signed papers of the accused persons. Whether it was prepared on 863 the way to Ghaziabad. It is not so claimed by DW3 or the accused persons U/s 313 Cr.PC. Merely stating that the accused persons were made to sign blank papers in my opinion was not enough to disprove any recovery allegedly effected at the instance of the accused persons. Some more evidence was required from the defence in this regard. If the accused persons had signed the blank papers then there was no reason for the police to prepare the seizure memo Ex.PW27/1 of Tata Safari Ex PW 33/Pl without signature of accused persons, regarding which the detailed discussion will be taken up later. The IO has claimed that accused persons had refused to sign the seizure memo of Tata Safari. To my mind the question arises where was the need for the accused persons to sign the seizure memo if the police had already 864 obtained their signatures on the blank papers and these could be used by the police for preparing the seizure memo of the Tata Safari as well. It is unbelievable that the police fabricated the recovery memo Ex PW 34/1 on the presigned blank papers of the accused persons and on the other hand did not use these signed blank papers for preparing the seizure memo of Tata Safari.
xlv) In my opinion the testimony of DW 3 Rajender Chaudhary does not inspire any credence and he is not a trustworthy witness. His statement that no recovery was affected by the police at the instance of the accused persons on 28.2.02 is unbelievable as no police official will take the risk of his job by undertaking any such unlawful practice of fabricating the recovery memo and that too in 865 the presence of advocate of the accused persons .
xlvi) His further testimony that on 1.3.02 accused persons were produced before the Court and he informed the Court orally that he was appointed in this case to accompany the accused persons and that no recovery was made in his presence doe not find mention in the court order. His claim that when the court told him about the recovery he moved application and affidavit Ex DW 3/D and F respectively is again concocted version as it is not believable that till that time he was not informed by DW 22 Satpal Yadav that the police had obtained his signatures on the recovery memo. Whereas the testimony of DW 22 Adv Satpal Yadav shows that he had informed DW3 Rajender Chaudhary about the 866 police obtaining his signatures on the seizure memo and had also shown him the copy of recovery memo and DW3 has admitted during his testimony that before he went to the Court Satpal Yadav met him and told him about the recovery memo, then he orally told the court that no recovery was effected by the police but the police was showing recovery as per the recovery memo, then court asked him to move an application. These are two contradictory statements made by the court, firstly to the effect that it is the court who informed him that police claims that recovery was effected and then he moved an application Ex. DW 3/D alongwith affidavit Ex DW 3/E and secondly he stated that he was already aware of this fact from Satpal Yadav about the seizure memo and informed the court orally 867 that no recovery was effected at the instance of the accused persons but the police was claiming to have effected the recovery. In these circumstances there was no occasion for DW 3 to move an application alongwith affidavit referred above at the instance of the court. It would have been more natural conduct if he had moved this application on being told by DW22 Satpal Yadav. In these circumstances I am of the opinion that DW3 Adv Rajender Chaudhary's testimony is not worth reliance. xlvii) So far DW 22 Satpal Yadav is concerned, he admitted during his testimony that court had allowed only one lawyer for both the accused during police custody remand . He claimed in chief examination that the police met him in this connection on 28.2.02 late at night, in his chamber and gave him a 868 copy of recovery memo. He himself stated that this recovery memo was prepared by the police during investigation and he did not say that it was fabricated. He also did not say that he was informed by Rajender Chaudhary DW 3 or any other advocate that this recovery memo was fabricated. He also does not say that after receipt of the recovery memo he approached the CJM Ghaziabad against the police to say that no recovery was effected in his presence and that he never accompanied the accused persons in police custody remand. xlviii) He testified during cross examination that he had received the copy of recovery memo at about 12 mid night in his chamber and he did not put time of receipt of the copy. DW 3 has testified that they had reached Ghaziabad before 11.30pm and 869 then went for medical examination of the accused persons . So it is not possible at all that police would reach the chamber of DW 22 at 12 mid night. At the same time if it was after mid night why DW 22 had put the date under his signature as 28.2.02 instead of 1.3.02. What is of utmost importance is that DW 22 was counsel for accused Vishal Yadav and at that time was the president of Bar but if his testimony is believed to be correct, he acted in irresponsible manner, as he stated that he did no go through the contents of recovery memo when he appended his signatures thereon. It is unbelievable that in such a high profile case , where the son of sitting MP alongwith his cousin brother was accused of the abduction and the murder of Nitish Katara, he did not care to see the contents of the 870 document which he signed. There is nothing on record that he was forced to sign this document. There is also nothing on record that he raised any objection to the police before signing the same on the ground that it should be signed by Adv Rajender Chaudhary who had accompanied accused persons and the police. Besides the conduct of this witness is equally relevant who kept silent for five years and for the first time in this Court deposed that he was never present at the time of recovery. It is held in the authority reported in 2003 (3) JCC 1952 that :
''the defence witnesses account was rightly discarded by the trial court and the High Court for the reason that these witnesses never came forward to 871 give their version before the police. There is no explanation as to why they should as law abiding citizens withhold the important information. Hence the defence evidence was held to be not trustworthy.'' xlix) In my opinion the testimony of DW22 does not inspire any credence as he is a false witness, which is apparent from his testimony during cross examination when he stated that he did not read the contents of the recovery memo at any point of time. If his said statement is believed to be correct then in my opinion he had no occasion to inform DW 3 Adv. Rajender Chaudhary about police having obtained his signature on the recovery memo.
Besides I find no logic for the police in giving copy of the seizure memo to DW 22 if he was 872 not present at the time of recovery, instead of serving the copy upon DW 3 Adv. Rajender Chaudhary who claimed to be with the accused persons during police custody remand. Besides, it was for the accused persons to have explained in the statement U/s 313 Cr PC as to which lawyer had accompanied them if not Satpal Yadav.
l) PW 35 SI Anil Somania, IO, has categorically stated during his testimony
recorded on 12.9.03 that advocate Satpal Singh Yadav was accompanying them from Ghaziabad alongwith the police party and accused persons. He was present at the time of recovery of hammer, watch and pointing out of the spot of burn of deceased Nitish Katara . He further stated that copy of recovery memo Ex. PW 34/1 was received by him on the spot itself and 873 signed and made endorsement in respect of receiving the copy on the recovery memo . To the similar effect is the statement of PW 34 SI JK Gangwar. Both these witnesses were not cross examined by any of the counsel for both the accused in this regard. So inference is drawn that this fact is admitted by the accused persons that DW 22 had accompanied them in police custody remand under court orders and was present at the time of recovery. No suggestion was given to both these witnesses PW 34 and PW 35 that it was not advocate Satpal but adv. Rajender Chaudhary who had accompanied the accused persons in police custody remand. No suggestion was given that at mid night the copy of the recovery memo was served upon DW 22 by the police in his chamber. This fact also does not find 874 mention in the application Ex DW 3/D moved by DW3 Adv. Rajender Chaudhary that copy of recovery memo was served upon DW22 Satpal Yadav at 12 midnight in his chamber.
li) Hence in view of the above discussion, I am of the opinion that no reliance can be placed in the testimony of DW 3 and DW 22 to the effect that it is adv. Rajender Chaudahry who had accompanied the accused persons in police custody remand and not adv. Satpal Yadav. From the material on record it stands proved that it was DW22 Satpal Yadav who had accompanied the accused persons during the police custody remand on 28/2/02 and had signed the recovery memo Ex.PW34/1 at the spot of recovery.
lii) Next point for consideration is whether the recovery of hammer Ex P l and 875 the wrist watch Ex PW 7/Article A2 as claimed by the prosecution in furtherance of their disclosure statements inspire any credence.
liii) The counsel for both the accused persons have argued that no reliance can be placed on the alleged recovery of hammer and wrist watch since the alleged recovery was effected from an open place. It is submitted that the deadbody was recovered on 17.2.02 by PW 4 Inspt.CP Singh of PS Khurja Nagar alongwith PW5 Ct Mudasar Khan after the deadbody was spotted by PW 23 Virender Singh. It is submitted that the testimony of PW 4, PW 5 and PW 23 conclusively shows that the search of the area around the deadbody was conducted and no recovery of any article was effected on 17.2.02. It is further submitted that as per the testimony of PW 4 Inspt CP 876 Singh the feet of the deadbody were towards the East and the head towards West. It is submitted that perusal of the photograph of the deadbody shows that in the North West direction there was no bush, whereas as per the IO the recovery was effected 7 steps from the deadbody in North West direction from bushes. It is further submitted that the area from where the deadbody was recovered was not put under guard by Inspt CP Singh and since it was open place accessible to general public, therefore the recovery of hammer and wrist watch from the said place after 11 days of the recovery of deadbody does not inspire any credence. It is submitted that PW 23 Virender Singh stated that after the recovery of deadbody he saw Ghaziabad police about 2 days later searching around the area where the 877 deadbody was found and this witness was not declared hostile by the prosecution thereafter. It is submitted that in view of his testimony the Ghaziabad police had already searched the area before 28.2.02 when the accused persons were taken there and as such the recovery of hammer and wrist watch from a place at a distance of 7 paces from the place of recovery of deadbody was planted upon them. In support of his arguments he has cited authorities reported in : ''1997 Cr.LJ SC 3813 Puran Lal Vs State of UP"
''AIR 1983 SC 360 Kora Chasi Vs. State of Orissa.'' ''AIR 1986 SC 1438 "A bdul Satar Vs Union Territory of Chandigarh"
''1997 Cr l. LJ Bombay page 454 ( Para 17)'' ''Crimes VI 1992 (2) page 644 ( Para 9) '' 878 ''1998(1) JCC (SC) Page 57 '' ''1997 Crl. LJ 3686 Delhi "S ita Ram Vs State of Administration (para 14)'' liv) Whereas on the other hand, the prosecution has relied upon the following authorities:
(2007) 2 (SC) 310 Amit Singh Bhikam Singh Thakur Vs State of Maharashtra 2003(7) Supreme 478 " Praveen Kumar Vs State of Maharashtra'' 1999 (1) JCC SC 215" State of Himachal Pradesh Vs Jeet Singh"
2003 (9) SCC 277 ''Gola Konda Venkatswara Rao Vs State of AP'' 879 2007 Crl. LJ 4197 ''Delhi High Court "S hashi Shekhar Vs State'' 2006 (1) AD (Crl) SC 237 " Nisar Khan Vs State of Uttranchal'' lv) The defence counsels have laid more stress on authority 1997 Crl.LJ 3813 Puran Lal Vs State of UP and have claimed that the facts of both the cases are similar as in the said authority the recovery of head of the deceased and other articles were effected barely 40 paces away from the place from where the deadbody was recovered. It is submitted that it was held by Hon'ble High Court of Allahabad that ''it was difficult to believe that the IO would not have found the head of the deceased and other articles if they were 880 lying only at the distance of 40 paces from the place where the deadbody was lying. Admittedly there were number of persons who had assembled and visited the scene since after the recovery of deadbody. That accordingly to PW 8 around 40/50 labourers used to work at the farm . The deadbody as well as the head of the deceased and other articles were found at the border of the field of Harbajan Singh, It was observed that the place being accessible to all there was no reason why the head and other articles would not have been noticed by anybody who visited the scene of occurrence. It 881 was held that the court below failed to take note of these important circumstances and the legal position that much importance cannot be attached to their recovery in a case where the place of recovery is open and accessible to all.'' In the authorities reported in :
i. AIR 1983 SC 360 Kora Chasi Vs. State of Orissa ii. AIR 1986 SC 1438 Abdul Satar Vs Union Territory of Chandigarh a nd iii AIR 1988 SC 1705 Makhan Singh Vs State of Punjab, the Hon'ble Supreme Court held that ''not much importance can be attached to the recovery as it was from an open place accessible to 882 all.'' lvi) The accused persons have relied upon the authority reported in Crimes VI 1992 (2) Page 644 to the effect that on the wrist watch which was recovered at the instance of accused Vishal Yadav from the bushes, no earth was sticking to the same. However, by the touch of the strap of the watch shows that there is dust on the strap. At the same time no question was put to the recovery witnesses PW34 SI JK Gangwar and PW35 SI Anil Somania as to whether there was any earth sticking to the watch at the time of recovery.
The aforesaid authority is distinguishable from the present case as in the authority cited, the wrist watch had been concealed under the earth an appellant had after digging the earth taken out the wrist watch whereas in the 883 present case wrist watch was concealed in the bushes and was not beneath the earth to say that the earth must have sticken to the wrist watch.
lvii) In the authority reported in 1998 (1) JCC (SC)page 57, it was held that the recovery of money and '' wrist watch stated to be of the deceased were recovered by the Investigating Officer in presence of Amar Singh PW10
- Maternal grandfather of the deceased. Thus, the recovery was not in presence of any independent person. It was for this reason that the High Court did not think it safe to place any reliance on the recovery evidence. The evidence of PW5 884 Kulwinder Kaur even if believed it only establishes that the accused and the deceased left together at 5.00 PM on 18/2/85. From that circumstance alone no inference can be drawn that the respondent had committed the murder of Kulwinder Singh.'' lviii) Though I fully agree with all the authorities cited by the defence counsel. However, each case has to be decided on its own facts and circumstances. In the authority reported in Puran Singh Vs State of UP the recovery of head and the clothes and other articles was effected from near the bank of lake and it is not mentioned in the said authority that the head of the deceased and other articles were lying concealed or were not 885 visible to others. It is obvious that if the head of a human being is lying on the bank of the lake alongwith other articles in open and that too at a distance of 40 paces from the deadbody , it would be visible to all those who must have collected near the deadbody and passed through that place.
lix) The prosecution on the contrary has cited the latest authority of the Hon'ble Apex Court as well as of the Hon'ble Delhi High Court ie 1999(1)JCC SC 215 and 2007(2) SC Cases 310.
lx) The arguments of the defence counsel which have already been discussed
above to the effect that the disclosure statements of the accused persons ExPW35/16 and 17 respectively were also not signed by the independent witnesses as such no reliance 886 can be placed on any recovery effected in furtherance of the same. To that effect I rely upon an authority reported in 2003(7) Supreme 478 Parveen Kumar Vs State of Karnataka whereby it was held by Hon'ble Apex Court that ''there is no requirement of law that disclosure statement U/s 27 of the Evidence Act should always be made in presence of independent witnesses.'' It was further held that '' '' recovery effected next day of making the statement would also not effect the prosecution case. It was held that normally in cases where the evidence led by the prosecution as to a 887 fact depends solely on the police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus it is only a rule of prudence which makes the court to seek corroboration from independent source in such cases while assessing the evidence of police. However, in cases where the court is satisfied that the evidence of the police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration.'' lxi) In the other authority reported in 1999 888 (1) JCC SC 215 it was held by the Hon'ble Apex Court U/s 27 of the Evidence Act in a murder case that " there is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of articles was made from any place which is '' open and accessible to others.'' It is a fallacious notion that when recovery of any incriminating article made from a place which is open or accessible to others, it would vitiate the evidence U/s 27 of the Act. Any object can be concealed in places which are open or accessible to others. For example, if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until 889 such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is ordinarily visible to others then it is immaterial that the concealed place is accessible to others. '' lxii) In the other authority cited by the prosecution reported in 2003 (9) SCC 277 it is held by the Hon'ble Apex Court that ''the discovery statement of an accused leading to recovery of crime articles from concealed place was admissible even though, the discovery 890 statement and the recovery memo did not bear the signature of the accused. It is held that the recovery was in consequence to the information given fortified and confirmed by the discovery of the wearing apparel and skeletal remains of the deceased and therefore the information and statement cannot be held false.'' lxiii) The latest authority relied upon by the prosecution on Sec. 27 and the circumstantial evidence is reported in 2007(2) SC Cases 310 Amit Singh Bhikham Singh Thakur Vs State of Maharashtra it is held that ''i t is fallacious to treat the " fact discovered" within the Section as 891 equivalent to the object produced, the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. The requirements of Section 27 of the Evidence Act are summed up in this authority as follows:
i The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
892
ii The fact must have been
discovered.
iii The discovery must
have been in consequence of some
information received from the accused and not by the accused's own act.
iv The person giving the information must be accused of any offence.
v He must be in the
custody of a police officer.
vi The discovery of a fact
in consequence of information received from an accused in custody must be deposed to.
vii Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
893
lxiv) In the light of the above authorities the evidence of the prosecution
witnesses is to be appreciated . The counsel for the accused has placed more reliance on the statement of PW 4 Inspt Chander Pal Singh who had first reached the spot and had recovered the deadbody and testified that when he reached the spot there were about 50 persons and thereafter people had been just coming and going. The land of Zahir Vakeel is near the place where the deadbody was lying. There was a tube well in the field at a distance of about 50 steps from the place of deadbody. It is submitted that in view of the said statement of PW4 Inspt CP Singh it stands proved on record that place of recovery was an open public place accessible to all. lxv) Further that he has admitted in his 894 statement that he had seen the place near the deadbody but he did not find any incriminating article near the deadbody. It is submitted that at the same time Ct Mudasar Khan examined as PW5 also stated that he had seen the place surrounding the spot. He stated that there was no measurement as to upto how many feet they had seen the place but police persons had gone in one or the other direction where the body was lying. He stated that they had seen all around the deadbody and in his presence nothing was recovered on that day around the deadbody upto 15/ 20 paces. The counsel for the accused has submitted that as per the testimony of PW 35 SI Anil Somania the recovery of hammer by accused Vikas Yadav was about 6 steps from the road toward bushes from the place pointed out by him ie a blackish 895 earthen spot on the ground where the deceased was burnt. A little away from there accused Vishal Yadav went into the fields and brought a wrist watch and gave it to him. It is submitted that no recovery was effected by CP Singh and Ct Mudasar Khan and the other police officers accompanying them on 17.2.02 when the deadbody was recovered though they remained at the spot for about 5 hours . It is submitted that as per the statement of Ct Mudasar Khan nothing was recovered on that day from around the deadbody upto 15/20 paces. It is submitted that in these circumstances no reliance can be placed on the testimony of either of PW35 SI Anil Somania or PW34 SI JK Gangwar , who testified that the hammer was got recovered by accused Vikas Yadav 6 or 7 steps away from the place 896 pointed out by him of the burning of the deadbody and accused Vishal Yadav got recovered the wrist watch about 5 steps away from the place from where accused Vikas Yadav had searched and got recovered the hammer. lxvi) I have perused the statement of PW5 Ct. Mudassar Khan which shows that he had not deposed at all that he had searched the area. He simply stated that in his presence nothing was recovered on that day from around the dead body upto 1520 paces which leads to the presumption that no search of the area was conducted on 17/2/02 by the police and nothing was visible. I am of the view that if the articles are concealed in the bushes then they cannot be seen from outside till bushes are searched. So even if police of PS Khurja remained at the spot for 5 hours, it is of no consequence as 897 during this period as deposed by PW4 Inspt. CP Singh only inquest proceedings were conducted at the spot and he had prepared panchnama Ex.PW3/2A.
lxvii) The defence counsel has further argued that in the photographs Ex.PW 4/ 2 & 3 of the deadbody there are no bushes shown at a distance of 7 paces to 12 paces, as such it was an open place surrounding the deadbody and therefore the hammer and the watch could not have been concealed in the bushes which were never there. Thus, if at all the hammer and wrist watch were lying near the deadbody at a distance of 7 to 12 paces it would have been visible to one and all. However I do not agree with the contention of the defence counsel to this effect as the photographs of the deadbody are clearly 898 showing dense bushes towards the feet of the deceased and there are leaves all around spread on the ground. The photograph Ex. PW 4/3 is showing bushes even on the left hand side of the deadbdoy of the deceased so it does not lie in the mouth of defence that there were no bushes at the spot . Even if Inspt CP Singh has not shown the bushes in the site plan Ex PW 4/4 , this can be termed as a faulty investigation for which no benefit can be given to the accused persons, particularly when in the photographs of the deadbody the bushes are clearly shown. The defence has not disputed the spot from where the deadbody was recovered, as such the photographs showing the spot are believed to be correct.
lxviii) PW4 Inspt CP Singh stated during 899 cross examination that he had not shown bushes specifically in the siteplan Ex.PW4/4 but he was not suggested in his cross examination that there were no bushes at all at the spot. So, it is deemed to be admitted on the part of the defence that there were bushes in the area around the dead body.
lxix) In these circumstances the testimony of Inspt. CP Singh that there were about 50 persons collected at the spot and people were coming and going so long they remained there, the place may be accessible to all but that by itself does not prove the knowledge of passersby that anything was concealed in the bushes. It was only within the special knowledge of the accused persons and it is only they had led the police to the spot, searched in the bushes and accused Vikas Yadav 900 took out hammer, whereas accused Vishal Yadav took out a wrist watch. If they had not concealed these articles then there was no reason for them to make a search in the bushes and take out the articles. It shows that it was only in the exclusive knowledge of the accused persons that these articles were hidden by them in the bushes. Besides, if we look into the normal human conduct any passersby from the village who will spot a wrist watch or the hammer would not leave it there but would rather pick it up and remove it from there. At the same time even if the place is accessible to all, it is a normal conduct of a person that he would not walk in between the bushes but from the path, may be kacha path or from the road.
lxx) PW 34 SI JK Gangwar has
901
categorically stated in his chief examination
that at the spot there were bushes called pattel in UP which are used for making straw roofs ie thatched roofs and their height was around 2 to 3 ft. His said statement finds corroboration from the photographs of the deadbody Ex. PW 4/2 and Ex.PW4/3 respectively. He has categorically stated that the hammer which was got recovered by accused Vikas Yadav from among the pattel bushes, was not visible from the road. During cross examination no suggestion was given to PW 34 that there were no bushes near the spot from where the deadbody was recovered or that the hammer and wrist watch could be visible to the passersby. This witness categorically stated during cross examination by the counsel for accused Vikas Yadav that 902 they were not able to see the earth beneath the bushes as the place was covered by bushes and no suggestion to the contrary was given to the witness that there were no bushes at the place.
lxxi) Similarly the testimony of PW 35 SI Anil Somania to the effect that there were bushes at the spot could not be rebutted by the defence despite lengthy cross examination. The witness categorically testified that the wrist watch was recovered from the bushes made of small wheat plants/ crop and there were so many such like bushes, he clarified that from the main road first of all there is kacha rasta , then bushes and then fields. He stated that after crossing bushes they went to the fields and the distance between the place of recovery of deadbody and place 903 from where watch was recovered was 15/20 paces. No suggestion to the contrary was given to the witness by the defence counsel. lxxii) To the contrary I find that defence has admitted the presence of bushes at the spot even during cross examination of PW23 Virender Singh. PW23 Virender Singh was put a specific question by counsel for accused Vikas Yadav in cross examination regarding removal of bushes by the police. To this effect he testified ''I do not know if police were removing bushes etc with dandas although police was roaming in surrounding area'' lxxiii) Through the cross examination of this witness, defence has admitted presence of dense bushes at the spot, as otherwise there was no need for removal of bushes with danda. 904 At the same time through this witness it is also proved on record that no search was being conducted by the police at that time. lxxiv) The argument of the defence counsel that once nothing was recovered from around the deadbody on 17.2.02 then how after 11 days of the recovery of deadbody the hammer and wrist watch was found there in the bushes. To this the answer is available in the statement of PW 4 Inspt CP Singh who testified that he had seen the place near the deadbody and had not given any such instructions to the subordinate staff to search the area around the deadbody.
lxxv) It is pertinent to mention that Inspt CP Singh's role cannot be equated with that of the IO since he had gone to the spot on receipt of information that a deadbody was 905 lying there and he conducted inquest proceedings U/s 174 Cr PC only and did not step into the shoes of the IO. Section 174 Cr PC deals with the powers of the officer incharge of a PS when he receives information that a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, in such circumstances he shall immediately inform the nearest Executive Magistrate empowered to hold inquest or shall himself proceed to the place where the body of such deceased person is and there, in the presence of two or more respectable inhabitant of the neighbourhood shall make an investigation and draw a report of the 906 apparent cause of death etc. lxxvi) The Officer Incharge of the PS U/s 174 Cr PC has only limited powers to ascertain whether a person has died under suspicion circumstance or an unnatural death and if so what is the apparent cause of death . It is so held in the authority reported in 2003 (2) JCC 1096 , 2003(10 JCC 325. Thus in view of these authorities it was not expected of Inspt CP Singh to assume the role of investigating officer.
lxxvii) The defence has also tried to shatter the prosecution case on the ground that as per the cross examination of PW 23 Virender Singh, the Ghaziabad police was seen by him after one or two days on that spot. As per the prosecution PW23 had spotted the dead body on 17/2/02 and informed the police and 907 without any reason the defence counsel asked him about his presence at spot after one or two days of recovery of dead body. However, in my opinion this statement of the witness does not find corroboration from any other source particularly when SI Anil Somania has categorically denied that he did not visit the spot except on 28.2.02. Moreover the presence of PW23 at the spot after one or two day of the incident is doubtful in view of his own statement when during his cross examination he stated ''I did not find bushes near the deadbody'', whereas as per the photographs Ex.PW4/2 & 3 bushes are clearly visible near the deadbody. It is strange that this witness noticed every other detail at the spot, such like there were no drag marks or tyre marks or shoe marks around the dead body which 908 normally do not occur to the onlookers, but strangely he did not notice bushes near the dead body that too of the height of 2/3 ft. His such conduct shows that he was out to favour accused persons during cross examination particularly when he admitted in answer to court question that he started removing people in the crowd to see whether there were any drag marks, boot marks or tyre marks, to find out from where the deadbody had come and he acted like an investigating officer. His claim in cross examination of defence counsel that he did not see any tyre marks, shoe marks or drag marks at the spot is falsified by his reply to the court question that when he removed the crowd he only got space for putting up one step which means there was so much of crowd that he could not even stand properly, then 909 how could he observe that there were no marks as referred above. So, in my opinion the cross examination of this witness is of no help to the defence. From his testimony I also find that there was no reason for him to visit the spot after 1 or 2 days of the recovery of the dead body as his said statement has been recorded in the cross examination by the defence counsel and appears to be motivated.
lxxviii) It is only on the basis of the testimony of PW23 the defence counsel has claimed that no tyre marks or dragging marks were found at the spot. The testimony of PW23 as referred above does not inspire any credence and is not worth reliance.
lxxix) In my opinion, in the present case there was no direct evidence available through the testimony of any eye witness who 910 had seen the deadbody being brought there by the accused persons but the case is based on the circumstantial evidence, so the prosecution has not relied upon any evidence that the accused persons had actually reached there in some vehicle and the vehicle was driven on the kacha path so as to leave tyre marks or since there were three accused persons they lifted the deadbody and threw it in the pit or dragged the same to the pit. All these facts are within the special knowledge of the accused persons for which the prosecution could not have led any evidence. Besides, as it has already come in the testimony of official witnesses that several persons had collected at the spot so the possibility of the tyre marks or even the drag marks, if are present at the spot, their being erased cannot be ruled out.
911lxxx) The defence counsel has also argued that the testimony of both the official witnesses PW 34 and PW 35 who are witnesses to the recovery of hammer and wrist watch is not corroborated by any independent evidence. It is submitted that the evidence of public witnesses Raghu and Aslam has been intentionally withheld by the prosecution.
lxxxi) However, in my opinion the corroboration of the testimony of official witnesses is required only as a rule of caution if it does not inspire credence. In the present case, the testimony of both PW 34 and PW 35 has withstood the test of lengthy and confusing cross examination and in my opinion their testimony is worth credence and reliable. lxxxii) So far non examination of PWs Raghu and Aslam is concerned, the record 912 speaks itself that as per order sheet dtd. 2.8.03 Aslam was evading service and bailable warrant was issued against him for 7.8.03. On 7.8.03, as mentioned in the order sheet Raghu was served personally through SI BL Saxena but he did not appear despite service, whereas PW Aslam was not found at the given address and had changed his address. IO was directed to find out his new address. Bailable warrants were ordered to be issued against both Pws Raghu and Aslam. The perusal of the order dtd. 23.12.03 shows that an application was moved by the prosecution to give up PWs Raghu and Aslam since they were won over by the accused persons.
lxxxiii) In view of these circumstances, I find there was no malafide on the part of the prosecution in giving up Pws 913 Raghu and Aslam. The conduct of the witnesses who despite coercive method failed to appear before the Court leads to the inference that either they were won over by the accused persons or were scared to depose against them. lxxxiv) Besides, the examination of the witnesses is the discretion of the Public Prosecutor representing the State. If at the stage of examination of the witnesses, he comes to know that certain persons cited by the investigating agency as witnesses might not support the prosecution case, he is at liberty to state before the court that fact, as held by the Hon'ble Supreme Court in the authority reported in 2001 Cri.LJ 511. It is held that '' U/s 226 Cr.PC the public prosecutor has to state what evidence he proposes to adduce for proving the guilt 914 of the accused, when the case reaches the stage envisaged in Sec. 231 of the Code the Sessions Judge is obliged '' to take all such evidence as may be produced in support of the prosecution'' . It is clear from the said section that the public prosecutor is expected to produce evidence ''in support of the prosecution'' and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined.'' lxxxv) In view of the above authority non examination of PW Raghu and Aslam is not fatal to the prosecution. The counsel for both the accused have also argued that the presence of Raghu and Aslam at the time of recovery is doubtful. Firstly, for the reason they have not 915 been examined by the prosecution as witness and secondly, their statement U/s 161 Cr.PC was not recorded on 28/2/02 but on 25/3/02. So far the argument of the defence counsel that the witnesses were not examined by the prosecution, this point has already been discussed above. At the same time, the contention of the defence counsel that they were not even present at the spot has no substance as their signatures are appearing in the recovery memo Ex.PW34/1 and it has already been proved on record by the prosecution that it was prepared at the time spot in the presence of DW20 adv Satpal , the counsel for accused Vikas Yadav.
lxxxvi) The other argument of the defence counsel is that the hammer and wrist watch were planted at the spot as the IO had 916 already information before 28/2/02 about the spot and recovery of the dead body so he must have planted both these items before the accused were taken to the said spot on 28/2/02. However, to that effect the testimony of PW34 and PW35 are relevant to be discussed. lxxxvii) PW34 was cross examined to this effect by the defence counsels but he categorically stated that on 21/2/02 when he went to the mortuary Bulandshahar on the instructions of PW35 SI Anil Somania to guard the dead body he did not ask Constable present in the mortuary about the place of recovery of deadbody. He further stated that on that day PW4 Inspt CP Singh met IO PW35 in the court of CJM Bulandshahar but PW4 did not tell the court in their presence about the place of recovery , nor in his presence Inspt CP Singh 917 told PW35 about the said place. He stated that no talks took place between PW4 and PW35 about the place of recovery. The defence has tried to take the statement of PW35 in support of their defence whereby during his cross examination recorded on 15/4/04 he stated '' I did not know spot between 17/2/02 to 19/2/02 from where the deadbody was recovered.'' The defence counsel has submitted that from the aforesaid testimony of the witness it can be inferred that after 19/2/02 he visited the spot. However, I do not agree with the aforesaid contention of the defence counsel as the witness did not mean to say that after 19/2/02 he visited the spot but it appears from the record that the question put to the witness was such ''Did you know the spot between 17 19/2/02 from where the dead body was 918 recovered?'' To this the witness stated he did not know the spot between 1719/2/02 from where the dead body was recovered. The witness specifically stated that he did not go to Khurja on 17/2/02, 18/2/02 and 19/2/02 as questioned by the defence counsel. He further clarified that he had not seen the place of recovery before hand and thereafter no suggestion was given to the witness that before 28/2/02 he was already aware of the spot of recovery of dead body and had visited the said place. Even PW4 CP Singh from whom there was some possibility of information being passed on to Pw35 SI Anil Somania and PW34 SI JK Gangwar , during his cross examination though he stated that on 19/2/02 when he had telephonic conversation with PW35 and thereafter on 21/2/02 when he met him in the 919 office of CJM, he had told him the place from where the dead body was recovered ie Shikarpur Road. However, he admitted that he had not taken the Ghaziabad police from office of CJM to the aforesaid place nor he had sent anybody. This itself shows that from where exactly the deadbody was recovered was not informed to PW35 by PW4 Inspt CP Singh. In general he informed PW35 that the dead body was recovered from Shikarpur Road. Therefore there is no material on record to say that SI Anil Somania before he was led by the accused persons to the spot from where the dead body was recovered, was aware of the said place.
lxxxviii) In view of the above discussion in my opinion the prosecution has duly proved on record that the accused persons made disclosure statements Ex PW 35/ 16 & 17 920 voluntarily and in furtherance of the same on 28/2/02 pointed out the place of murder ie Khurja road Bulandshahar near Aughwar Railway station crossing vide pointing out memo Ex.PW35/23 and thereafter accused Vikas Yadav got recovered hammer Ex.Pl the weapon of offence and accused Vishal Yadav got recovered wrist watch ExPW 7/Article A2 belonging to the deceased from Shikarpur Road from where the deadbody was recovered on 17/2/02, in the presence of their advocate DW22 Satpal Yadav. The facts discovered in furtherance of the disclosure statements of the accused persons Ex.PW35/16 & 17 are the knowledge of both the accused persons about the place of recovery. The knowledge of accused Vikas Yadav as to where the hammer Ex.P1 was hidden and the knowledge of Vishal 921 Yadav as to where wrist watch Ex.PW7/Article A2 was hidden are the facts discovered in furtherance of their disclosure statement and then recovery of both these articles at their instance. The recovery of these facts also prove that the disclosure statements Ex.PW35/16 & PW35/17 were made by the accused persons voluntarily. Moreover, nobody else had the knowledge that these articles were hidden in the bushes and it is only at their instance these could be recovered on 28/2/02. Even this circumstance the prosecution has successfully proved against the accused persons. lxxxix) The defence counsel has also vehemently argued that though both the accused persons had got recovered separately the hammer Ex. Pl and the wrist watch Ex PW 7/Article A2 but the IO prepared one 922 single recovery memo in respect of both the recoveries which is illegal and the accused are thus entitled to the benefit of the same. However, in my opinion there is no illegality in preparing the joint recovery memo as the articles ie hammer Ex P1 and the wrist watch Ex. PW 7/Article A2 were got recovered separately by both the accused persons in furtherance of their respective disclosure statements though at the same time. No doubt, the IO ought have prepared separate recovery memos for both these articles recovered at the instance of accused persons which in my opinion is only an irregularity and not illegality.
xc) The defence counsel Sh. KN Balgopal, adv has submitted that no finger prints were lifted from the hammer. However, 923 to this argument, adv SK Sharma has conceded that it is not possible to lift finger prints from the hammer. The other argument of Sh. KN Balgopal, adv that no opinion was sought from the doctor about the use of hammer as a weapon of offence and thus the benefit should be given to the accused. However, I find no force in the aforesaid argument as the witness was shown the hammer in the court during his examination and as such, his opinion about its use was given by him vide his testimony so it is not fatal for the prosecution as to why the hammer was not shown to the doctor at any earlier stage.
➔ Blood on Hammer i) The other objection raised to the
admissibility of the circumstance of recovery of hammer at the instance of accused Vikas 924 Yadav is that though the hammer was sent to CFSL and it was reported that it was found containing human blood but no blood group was asked from the expert. It is submitted that if the blood group had been given by the expert it would have proved whether it was incriminating circumstance against the accused or not.
ii) The defence counsel has further submitted that even the opinion of the doctor is to be seen about the use of hammer in causing injury on the person of the deceased. It is submitted that if the views of the doctor lead to different interpretation then hammer looses its significance and similarly whatever is found on the hammer also looses significance.
iii) On the other hand, Spl PP for State has submitted that once it is proved 925 on record by the prosecution that the blood on the weapon of offence was human blood and the weapon is recovered at the instance of the accused, the onus by the prosecution stands discharged.
iv) At this stage, it is important to note that the views of the doctor about use of hammer in the incident have already been discussed in the circumstance ie postmortem report and it has already been held that the injury on the skull of the deceased was caused by the said weapon.
v) The prosecution in this regard has cited authorities reported in :
1999 (3) SCC 507 State of Rajasthan Vs Teja Ram'' which is also relied upon in 2000 (8) Supreme 402 Gora Singh Vs State.
2002 (6) Supreme 10 M oti Ram Gaman 926 Pawar Vs State of Maharashtra
vi) The defence counsel has also relied upon the authority State of Rajasthan Vs Teja Ram '' referred above.
vii) The argument of the defence counsel that in the present case the CJM
Ghaziabad did not ask the expert to give the blood group but had only asked him to report whether blood stains on hammer is human blood or not and as such the blood group was not given. It is also argued that the human blood was planted on the hammer Ex.P1
viii) The defence counsel has further submitted that the judgment cited by the Spl.
PP for State on this aspect are not applicable to the facts of the present case as in all those cases there were eye witnesses to the commission of the crime, whereas the present 927 case is based on circumstantial evidence. It is submitted if the blood group is ascertained it clears the doubt whether it is incriminating or not. The defence counsel has drawn my attention to the letter Ex.PW 35/55 of the CJM Ghaziabad to the director CFSL whereby he was only directed to find out whether there was any human blood on the hammer. As such, in the report Ex.PW 35/57 only the finding given by the expert is that there is human blood on the hammer..
ix) It is held in the authority 1999 3SCC 507 State of Rajasthan Vs Teja Ram by the Hon'ble Apex Court that:
failure of the serologist to detect '' the origin of the blood, due to disintegration of the serum in the meanwhile, does not mean that the blood 928 stuck on the axe would not have been human blood at all. Sometimes, it happens, either because the stain is too insufficient or due to hematological changes and plasmatic coagulation that a Serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such a guess work that blood on the other axe would have been animal blood is unrealistic and far fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit can be claimed by the accused.''
x) So far the argument of the defence 929 counsel that the blood group was not asked for from the expert by the court of CJM Ghaziabad, this is of no consequence since the report of the CFSL Biology Division Ex PW 35/57 is on a printed performa which find three columns ie i Exhibits ii Species of origin iii ABO Group / Remarks Since there were three columns in the report and only two columns No. i & ii are found filled and column No. iii of blood group is blank, it shows that due to scientific reason it was not possible to detect the blood group. The report Ex.PW 35/57 was admissible U/s 293 Cr. PC and as such it was tendered in evidence through the statement of PW 35 SI Anil Somania. If there was any doubt in the mind of the defence counsel as to 930 why the blood group was not given in the report the expert could be called for cross examination to explain the same. However, no such effort was made. As referred in the authority State of Rajasthan Vs Teja Ram '' where the serologist failed to detect the origin of the blood, due to disintegration of the serum it was held that it does not mean that the blood struck on the axe would not have been human blood at all.
Keeping in mind the aforesaid authority, in the present case also only the blood group has not been given by the expert of Biology Division though it has already come on record that the blood on the hammer was human blood. As such no benefit of the same can be given to the accused.
xi) The authority of State of Rajasthan Vs Teja Ram has been discussed 931
and relied upon in the authority 2001 CrLJ 487 Gura Singh Vs State of Rajasthan . In this case a blood stained chaddar (sheet) belonging to the appellant and kassi weapon of offence on the basis of the voluntary disclosure statements of the appellant were made. The appellant gave the information about the chaddar and produced the same which was hidden by him in his house kept in a picture and was found to be stained with human blood. It was held by the Hon'ble Apex Court that both the trial as well as the High Court rightly held that the prosecution has succeeded in proving the making of the disclosure statements by the appellants and consequent discovery of the weapon of offence at his instance. It was held that the serologist and chemical examiner to the Govt of India found chaddar (sheet) and 932 other items to be stained with human blood, however, the origin of the blood stains on the items ie pair of shoes and kassi could not be determined on account of disintegration with the lapse of time. The authority reported in State of Rajasthan Vs Teja Ram was relied upon which has already been discussed above and where it was held that ''failure of serologist to detect the origin of blood due to disintegration of the serum in the meantime does not mean that the blood stuck on the weapon of offence would not have been human blood at all. It was further held that such guess work that the blood would be of some other origin ie animal blood is unrealistic and far fetched in the broad spectrum of this case. It was held that the effort of the criminal court should not be prowl for imaginative doubts. 933 Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.''
xii) Similarly, in the authority reported in 2002(6) Supreme 10 Moti Ram Gaman Pawar Vs State of Maharashtra whereby it is held that ''one of such circumstance explained is that the blood stained clothes of the appellant and the knife recovered at his instance has not been proved to be having the blood stains of group 'B' the blood group of the deceased. The report of the forensic science laboratory indicated that the clothes of the appellant and the knife recovered at his instance were having human blood, the group of which 934 could not be ascertained on account of disintegration of the blood spots''.
xiii) In view of the above authorities, I am of the opinion that merely for the reason that blood group of the human blood found on the hammer ExP1 was not ascertained, it does not give a reason to hold that any chain in the aforesaid circumstance of discovery of fact against the accused persons is missing. ➔ IDENTIFICATION OF THE WRIST WATCH
i) The defence counsel has argued that the recovery of the wrist watch Ex.PW7/Article A2 at the instance of accused Vishal Yadav is immaterial since there is no evidence on record that deceased was wearing 935 wrist watch when he attended the marriage of Shivani Gaur and was allegedly abducted from the Diamond Palace. Further that the test identification of the wrist watch conducted by PW7 Sh.Ram Lakhan, Spl Executive Magistrate also does not inspire any credence since the watches mixed up with the watch Ex.PW7/Article A2 were of different makes and shapes which enabled the witness to read the particular name since the watch was planted by her and the police. Further that Nitin Katara the brother of deceased Nitish Katara was not made to identify the wrist watch in the presence of the Magistrate and in the Trial Court he showed his inability to identify the watch. The defence counsel Sh. SK Sharma,adv argued that the TIP of the watch is diluted when the Magistrate holding the parade says that the 936 watches to be mixed up might have been shown to the witness before she came to the court. The defence counsel has further submitted that the introduction and planting of the watch is result of conspiracy between the complainant and the police. It is submitted that as per SI Anil Somania the IO, he had gone to PS Khurja on 19/2/02 and obviously he must have asked the police there about the photographs of the dead body, the mobile or the gold chain found there. When he did not get a positive reply, he , higher officials and the complainant must have made a plan to create evidence for identification of the deceased and for this reason they had kept this watch with them with the intention to plant on one of the accused whenever arrest is effected. It is further submitted that this conspiracy was hatched by 937 the police and the complainant on 20/2/02 and for this reason the fact of wrist watch was inserted in the statement of Smt. Neelam Katara but they could not record therein that she could identify watch if shown to her since the police did not have the space to write the above said fact. It is further submitted that bill of the wrist watch Ex.PW7/Article A2 has not been produced by the complainant to prove that it was owned by Nitish Katara.
ii) On the other hand the prosecution has claimed that the watch has been properly identified by Smt. Neelam Katara before the PW7 Sh.Ram Lakhan, Spl Executive Magistrate that she has categorically stated in her testimony about the identification of the watch and also that there is no manipulation on the record of the police such like addition of wrist 938 watch in the statement of Smt.Neelam Katara. Regarding the fact that Nitin Katara was not made to identify the watch it is submitted that the identification of watch by Neelam Katara was enough to prove that this watch was belonging to the deceased and he had gone to the marriage wearing the same. The Spl.PP for State has further argued that to the contrary it is the defence who has tried to mislead the court by producing morphed photographs Ex.PW6/D3 & D4 showing the deceased wearing a round watch with a metallic chain.
iii) I have carefully considered the submissions of both the parties.
To this effect the testimony of PW30 Neelam Katara is important. In her chief examination she testified that when her son left he was wearing red colour kurta churidaar pajama and a shawl . 939 He was having one wrist watch , one gold chain and a pendant with tiger claws which Bharti had given him and was carrying a mobile phone. She categorically stated that her son was wearing a wrist watch make Esprit. She stated that she remember about the watch very clearly because it was presented to him in December 2001 by Bharti and she had argued with him not to accept costly presents from her. She further testified on page 1 of her further chief examination dtd 1/5/03, that she was called for identification of wrist watch which Nitish was wearing on the date of marriage of Shivani ie on 16/2/02 . She had identified the wrist watch of her son in April 2002 and had signed document Ex.PW7/3 dtd 2/4/02 at the time of identification of the wrist watch. She then identified the wrist watch in the court shown to her from the sealed parcel that it 940 was the same watch which Nitish was wearing and she had identified on 2/4/02. During her cross examination she denied the suggestion of Adv Sh. SK Sharma on behalf of accused Vishal Yadav that her son had gone to the marriage wearing a round watch having metallic chain. It is important to note that during her cross examination she was shown a photograph Ex.PW6/D3 and she denied the suggestion that her son was wearing a round wrist watch as in the photograph of marriage Ex.PW6/D3. She further denied that her son was wearing a watch with metal chain. She stated that watch which her son was wearing was square watch which she had identified. Regarding the identification of the wrist watch before PW7, she was put a specific question which is reproduced as follows :
Q. Did you identify the wrist watch immediately on 941 seeing it?
Ans. I took my time in looking at the watches and then I identified the wrist watch.
iv) She was put another specific question which is reproduced as follows:
Q. Wrist watches which you are referring amongst which you had identified the wrist watch Ex.PW7/Article A2 were all exactly identical to this watch and were of Esprit make or all were having black leather strap with white sheen and nickle buckle ?
Ans. No , some may be of same type but all were not of same type. I had not counted, how many were of same type, in all there were 6 watches and were of similar type.
v) The aforesaid answer of the witness was quite natural as though she has categorically stated that some of the watches 942 were of the same type whereas some of them were not and it is quite natural for a witness who appears for TIP of the case property does not count the articles mixed up with the article to be identified. What is important is that the article has been identified by the witness correctly. She has categorically denied the suggestion that wrist watch Ex.PW7/Article A2 was handed over by her to the police for planting on the accused. It is important to note that no suggestion was given to the witness that in her statement U/s 161 Cr.PC dtd 17/2/02 recorded by the police in the case diary she did not mention that her son was wearing Esprit watch in his hand and that this portion was added lateron by the police in connivance with her. In the absence of any suggestion, in my opinion the argument of the defence counsel 943 that any manipulation was made in the record is of no consequence. Particularly when it has already been proved on record that the watch was recovered at the instance of accused Vishal Yadav in the presence of his advocate Satpal Yadav DW22. The defence has failed to bring any material on record that this watch was given by Neelam Katara to the IO for plantation.
vi) It is further important to notice that even in the statement of PW39 Nitin Katara recorded U/s161 Cr.PC he categorically mentioned about the Esprit watch which he found missing from the room of his brother.
During his testimony before the court Nitin categorically testified that he reached Delhi on 18/2/02 around 6am on getting the news of his brother being kidnapped from Ghaziabad on the 944 intervening night of 1617/2/02 by the accused persons, the brothers of Bharti Yadav. He stated that his mother had told him that his brother had left for wedding wearing red colour kurta, white churidaar pajama and shawl, thereafter he went to the room of his brother to find out what other things he might have taken alogwith him. He found his Blue eye Samsung and his watch make Esprit missing. He testified that the aforesaid watch was gifted by Bharti to Nitish and this fact he was told by Nitish when he came to Delhi during vacations in December 2001.
vii) The argument of the defence counsel as to why his mother only told him about the clothes the deceased was wearing when he left the house and not about other belongings and why Nitin went to the room to find out the 945 missing articles, it is submitted that this shows that the watch was lateron planted upon the accused Vishal Yadav. I find no force in this argument as the condition of Smt. Neelam Katara whose son was missing for the past two days with no information as to where and in what condition he was, can be very well realised, so in my opinion it was natural for her to have not disclosed each and every detail to Nitin Katara since she was not in fit state of mind, as she had claimed in her testimony that she was under stress and tense and did not make a detailed statement even before the police. Similarly, it was natural on the part of the brother to find out from the belongings of the deceased as to what else was missing from the house which could have helped them in tracing the deceased.
946
viii) The argument of the defence counsel that the prosecution has not produced any bill of the wrist watch is of no consequence as both PW30 Neelam Katara and PW39 Nitin Katara have stated that this was a gift by Bharti Yadav to Nitish Katara and everyone is aware of, the gifts are never accompanied by the bills. No suggestion was given to Neelam Katara or even to Nitin Katara that the wrist watch was never gifted to Nitish Katara by Bharti Yadav. The other contention of the defence counsel that PW38 Bharti Yadav has denied having gifted the watch to Nitish is of no consequence as the reasons for her being hostile are already discussed as she was not in her own self but under pressure of her family. Besides, no suggestion was given either to PW30 Neelam Katara or PW39 Nitin Katara that Nitish 947 never told them that this watch was gifted by Bharti. PW30 Neelam Katara has categorically stated that she had told Nitish not to accept such costly gifts from Bharti and her statement is not rebutted in cross examination. The testimony of Neelam Katara finds corroboration from the testimony of PW7 Sh.Ram Lakhan Singh, SEM, Ghaziabad.
ix) Prosecution has examined PW7 Sh. Ram Lakhan Singh, SEM Ghaziabad who was authorised to conduct TIP of persons as well as of property. He testified that on 2/4/02 he received written request Ex.PW7/1 from SO PS Kavi Nagar for getting TIP of wrist watch. Wrist watch was produced before him in sealed condition alongwith specimen seal Ex.PW7/2. He stated after the identification proceedings were over, he sealed the wrist watch with his seal. 948 Then he was shown the sealed parcel bearing his seal in the court, which was opened and wrist watch Ex.PW7/Article A2 was identified by him in the court. He testified that he had called for five similar watches which were brought by contractor RM Agarwal, the authorised contractor of his office. He mixed these watches with the watch in question and thereafter called Ms Neelam Katara in his office She correctly identified watch PW7/Article A2 and he prepared the memo of proceedings of identification Ex.PW7/3. He proved his signatures thereon at point A, the signatures of Neelam Katara at point B, signatures of contractor at point C and of APO at point D.
x) Keeping in view the submission of the defence counsel, I have gone through the entire testimony of PW7 Sh. Ram Lakhan Singh, SEM 949 but I find no infirmity in the TIP proceedings. The contention of the defence counsel that SEM says that watches to be mixed up with the watch might have been shown to witness does not find mention in the statement of PW7. To the contrary he stated that since he was not outside his court so he could not say if the watches brought by contractor were shown to the witness or not. This statement of PW7 does not mean that watches were shown to PW30 Neelam Katara. Particularly, when PW7 Sh. Ram Lakhan Singh stated that contractor brought watches in bundle which was opened in his presence in the court. Besides, no suggestion was given to PW 30 Neelam Katara to this effect. However, she denied the suggestion that she had given watch to IO to plant. PW7 Sh. Ram Lakhan Singh, SEM during cross 950 examination testified that he did not show the watch to the contractor and told him to bring rectangular, square and round watches and did not tell him the make of the watches or about colour or strap or chain. Defence counsel has stated that identical watches were not mixed up with the watch in question, as such it was easy for PW30 Neelam Katara to identify the watch. However, PW30 Neelam Katara has stated she took time to identify watch and also stated that all were not of the same type, some of them may be of same. She stated that she had not counted how many of them were same. She was not given any suggestion that all the watches were neither similar nor identical. Thus, I find the watch PW7/Article A2 was correctly identified by her before PW7 Sh. Ram Lakhan Singh, SEM Ghaziabad.
951
xi) It is important to note that during the cross examination of this witness, the photographs Ex.PW6/D3 and D4 were shown to the witness and an observation was made by my Ld. Predecessor to the following effect :
' 'A photograph is sought to be shown to the witness, which is an enlarged photograph. Permission was take from this court for taking enlarged photograph of photograph filed in court by prosecution but unfortunately instead of calling a photographer in court for taking enlarged photograph from the negative available on record, defence called a computer expert, who with the help of scanner took from a positive print an impression of photo available on record and then defence got prepared this photo. Expert, who had come to court while taking photograph had remarked that he could manipulate the photo in any manner. It is well 952 known that softwares in the name of Adobe photoshop, Adobe Premier etc are available in the market and with these software ,you can make any manipulation with the photo, clothes, colour .' '
xii) These observations are relevant qua the testimony of DW15 & 16 produced by the accused persons in defence to prove that the photograph Ex.PW6/2 taken at the time of marriage of Shivani Gaur was morphed and was not the original photograph.
xiii) Now it is necessary to discuss the evidence of two defence witnesses DW15 Vikram Garg and Dw 16 Mahender Sharma and even PW6 Archana Sharma. Both DW15 Vikram Garg and DW16 Mahender Sharma were produced by the defence with a view to bring some material on record that the photograph Ex.PW6/2 of the deceased Nitish Katara clicked at the marriage 953 of Shivani Gaur was not original and was manipulated with some amendments and claimed that he was wearing round metallic wrist watch at the time of marriage.
xiv) PW6 Archana Sharma was examined by the prosecution to prove the fact that she had got clicked the still photographs and the videography in the marriage of Shivani Gaur.
She appeared in the witness box and testified that she was running a photo studio in the name of Quality Photo Service. Her employee Vijay had gone to Diamond Palace for taking still photographs and videography of the marriage of Shivani Gaur on the night intervening 1617/2/02. After taking photographs and preparing video Vijay handed her over the negatives of the same and then she prepared album of the photographs and handed over the 954 album alongwith negatives to the concerned family. She testified that police had taken positives of some photographs of the marriage. During her evidence she was shown the photographs Ex.PW6/2, PW6/3 & PW6/4 which she admitted were given by her to the police and she proved the negatives of these photographs collectively Ex.PW6/5 which were taken out of a sealed cloth and opened in the presence of the witness. Her said testimony proves that Ex.PW6/2 was the original copy prepared from one of the negatives part of Ex.PW6/5.
xv) However, during cross examination by defence counsel this witness testified that apart from the photographs exhibited in the court she had brought 34 other positive prints which were not put in the album of the party as she 955 did not consider them good. At the same time she testified that she did not have the negatives of those photographs. During cross examination she produced these photographs as Ex.PW6/D1 to D4. Now out of these three photographs the defence has tried to prove on record that photographs Ex.PW6/D3 is the original photograph whereas PW6/D4 is its enlarged copy and PW6/2 contains amendments regarding the wrist of the boy standing wearing red kurta.
xvi) It is important to note firstly the conduct of PW6 as to why and at whose instance she prepared the photograph Ex.PW6/D1 to D4 and why did she bring them alongwith her when she was summoned as a prosecution witness as there were no directions to her from the court to produce any 956 photograph from her photo studio clicked at the marriage of Shivani Gaur. The reason is obvious that at the instance of accused persons she produced these photographs. Whether these are genuine photographs there is no evidence on record, since PW6 admitted that there were no negatives of these photographs. Her said statement is not believable as once these photographs were clicked at the marriage of Shivani Gaur then where are the negatives of these photographs. The witness has neither claimed that she had lost the negatives nor that these negatives were handed over to the family of Shivani Gaur. She simply stated that she did not have the negatives of these photographs. She has admitted that these photographs were not placed on the album then obviously the negatives of these also must not have been 957 handed over to the concerned party. xvii) It is further important to notice that this witness was allowed to be reexamined by the Spl.PP since she produced these photographs on record in cross examination. During her cross examination by the Spl.PP she admitted that she had prepared Ex.PW6/D1 to D4 after the police had taken away the three negatives ExPW6/5 and she prepared these photographs from positive to positive. She has not given any explanation as to where was the necessity for her to prepare the photographs from positive to positive and at whose instance particularly when she had not placed these photographs in the album, since as per her chief examination these were not good photographs. The conduct of this witness itself shows that these photographs were manipulated 958 by her at the instance of accused persons and she intentionally brought these photographs to court without even being asked to produce the same. Now in the light of the testimony of PW6 the evidence of DW15 Vikram Garg and DW16 Mahender Sharma is to be appreciated . xviii) DW15 Vikram Garg testified that he had diploma in Camera and Lighting and post graduate diploma in advertising and marketing which includes art and production which means designing and post production. He explained that the post production means designing, editing in the photographs and other clip arts. he was shown the photographs Ex.PW6/2, 6/D3 &D4 and he was asked to tell the difference in these three photographs. He replied that Ex.PW6/D3 is the original photograph and its enlarged copy is Ex.PW6/D4 959 whereas in photograph Ex.PW6/2 some amendments were made in the photograph on the wrist of the boy standing wearing red kurta. He further testified that in the first photograph Ex.PW6/D3 the boy in red kurta is wearing wrist watch in his left hand which is not appearing in the photograph Ex.PW6/2, as such it was a copy and not the original. Before I proceed to discuss the cross examination of this witness by SPP for State it is important to note that when PW6 Archana Sharma appeared in the witness box and proved the photographs Ex.PW6/2 to 4 from the negatives Ex.PW6/5 no suggestion was given to the witness that photograph Ex.PW6/2 was not prepared from the negative or was not the original photograph or that it was morphed.
xix) What is important to note is that 960 during cross examination DW15 Vikram Garg admitted that with naked eye he could not say whether photograph Ex. PW6/D3 was prepared from negative or is a digital photo. He stated that he have to scan it to prove them. He further admitted that this photograph was not clicked in his presence nor its enlarge copy Ex.PW6/D4 was prepared in his presence. He also admitted that merely on seeing the photograph Ex.PW6/2 he could not say if it is prepared from negative or digitally. When in the court he was shown three negatives Ex.PW6/5 collectively, he admitted that PW6/2 was prepared from the negative encircled green. xx) During his cross examination, it is observed that Mr. GK Bharti, whispered something in the ear of the witness and the witness immediately took a somersault and 961 stated that the negative shown to him was small in size and since in all the photographs four persons were appearing so he cannot state from which negative photograph Ex.PW6/2 was prepared. It appears that this witness was produced in defence only to mislead the court to believe that photograph PW6/2 was not the original but a copy with some amendments whereas the defence wanted the court to believe that the photograph Ex.PW6/D3 was the original so as to say that in this photograph and in its enlarged copy PW6/D4 the deceased was seen wearing a round wrist watch with metallic chain. However the defence has failed in its design as their own witness could not say if the photograph Ex.PW6/D3 was prepared from the negative or from the original or was digital photo, so this witness could not create 962 any doubt that the photograph Ex.PW6/2 was not the original but contained amendments. It seems that this witness had appeared only to give his opinion as to which is original photograph and which is the copy of the original containing amendments, however his opinion is not acceptable to the court firstly because he is not an expert witness in terms of Sec. 45 of the Evidence Act, secondly, there is no evidence on record that the witness had already done his homework and compared the photographs Ex.PW6/2 with PW6/D3 and D4 respectively. I fail to understand as to how he stated in chief examination that PW6/2 was containing some amendments and that Ex.PW6/D3 was the original and PW6/D4 was its enlarged copy, when in his cross examination he admitted that merely on seeing 963 the photograph Ex.PW6/2 he could not even say if it was prepared from the negative or was digital nor he could say that PW 6/D3 and 6/D4 were prepared from the negatives in his presence. Besides, it is important to note that this witness had admitted that he had seen all these photographs Ex.PW6/2, PW6/D3 & D4 for the first time in the court. He has also admitted in answer to the court question that the jewellery or anything can be added or deleted from the photograph by editing. As such I am of the view that the photographs Ex.PW6/D3 & D4 were morphed photographs to show that the deceased Nitish Katara was not wearing Esprit watch at the time of marriage of Shivani Gaur but was wearing a round watch with metallic chain. The photograph Ex.PW6/2 clearly shows that no wrist watch was visible in the hands of 964 the deceased in the photograph. The photograph Ex.PW6/D3 & D4 have been introduced by the defence to mislead the court.
xxi) The argument of the defence counsel that the watch Esprit was planted upon the accused, is again of no consequence, as there is no answer from the defence to the question as to why would the investigating agency plant the Esprit watch and make amendment in the photograph Ex.PW6/2. If at all in the photograph Ex.PW6/2 some wrist watch of round shape with metallic chain was appearing, then without any amendment of the photograph that type of watch could also be planted by the police. It appears from the record that the accused persons have played some mischief in introducing the photograph Ex.PW6/D3 by manipulating it as it is observed 965 by the court during the recording of the testimony of Neelam Katara that DW16 Mahender Sharma who had enlarged the photograph before the court admitted that he could manipulate the photo in any manner and that it is well known that software in the name of Adobe Photoshop, Adobe Premier etc are available in the market and that these softwares can make any manipulation with the photo, clothes, colour can be changed, face expressions can be changed, not only wrist watch even shackles can be shown on the hands and legs of the person in photo. When he appeared as DW16 this witness admitted that there is difference in the photograph Ex.PW6/2 and PW6/D3 and PW6/D4 and he admitted that he had only prepared enlarged photograph Ex.PW6/D4 from Ex.Pw6/D3. So this witness is 966 of no help to the defence. To the contrary through the testimony of this witness coupled with the testimony of DW15 and the observations made by the court during the testimony of PW30 Neelam Katara it is proved on record that the accused persons to mislead the court fabricated the photograph Ex.PW6/D3 and then to further mislead the court got prepared its enlarged photograph Ex.PW6/D4 in the court to impress upon the court that this is the original photograph whereas Ex.PW6/2 is photograph containing amendments. To the contrary prosecution has proved that photograph Ex.PW6/2 has its negative on the record but PW6/D3 is without any negative. xxii) Even PW15 Vijay Kumar who had taken the photographs in the marriage of Shivani Gaur and has been examined as a 967 prosecution witness tried to favour the defence by deposing that he had clicked the photographs Ex.PW6/D3 and PW6/D4 in the marriage of Shivani Gaur. However, he has not clarified on what basis he could claim that he had clicked these photographs. The veracity of this witness is tested by the court question where he admitted that he did not remember if prior to 16/2/02 or after 16/2/02 he had taken photos in any marriage. As per his chief examination he only clicked photographs for PW6 Archana Sharma and used to handover the photos and reels to her. In such circumstance it becomes more difficult to say by the witness which photograph was clicked, when and in whose marriage. He admitted that he did not see the album of this marriage. Then how could he say that these photographs were clicked in 968 the marriage of Shivani Gaur. What is important about his testimony is that he admitted that from positive print also other positive print can be prepared though he could not say if through the computer there can be manipulation in the photo. Though he is a photographer but he could not distinguish between the photographs shown to him if they were made from negative or prepared on computer or from the positive. Again for want of negatives of PW6/D3 &D4, this witness is of no help to the defence.
xxiii) Besides, no suggestion was given to the IO or to the complainant PW30 that the photograph Ex.PW6/2 was manipulated and Esprit wrist watch was planted upon the accused Vishal Yadav.
xxiv) From the above discussion it 969 stands proved on record that the wrist watch Esprit as testified by PW Neelam Katara was worn by the deceased at the time of marriage and it was got recovered by accused Vishal Yadav on 28/2/02 in furtherance of his disclosure statement Ex.PW35/17 and it was correctly identified by Smt. Neelam Katara in the TIP proceedings Ex. PW7/3. Defence has miserably failed to create any doubt in the mind of the court in this regard.
➔ RECOVERY OF TATA SAFARI: i) So far the use of Tata Safari by
the accused persons in the commission of crime is concerned, the prosecution has claimed that on 16.2.02, the accused persons came in a Tata Safari bearing registration No. PB 07H 0085 to the Diamond Palace to attend the marriage 970 of PW11 Shivani Gaur and after abduction of Nitish Katara they took him away in this vehicle. The prosecution has relied upon the evidence of PW 28 Ct. Inderjeet Singh, PW 32 Ct. Satender Pal Singh and PW 33 Ajay Kumar to this effect. Regarding the recovery of the aforesaid vehicle, the prosecution has relied upon the evidence of PW 34 SI JK Gangwar and PW 35 SI Anil Somania besides PW 27 Sultan Singh. To the contrary the defence has claimed that the aforesaid vehicle was under repair with Nawab Motors from the morning of 16.2.02 and it is only on 10.3.02 the vehicle was delivered by Nawab Motors after repairs and as such the use of this vehicle in the alleged commission of offence was impossible. To this effect defence has examined DW2 Madhu Mohan Nair and DW7 971 Shaktichand. It is further claimed that the accused persons had gone to Diamond Palace to attend the marriage of Shivani Gaur in black Mercedes and to this effect the defence has relied upon the statements of PW 43 Bhawna Yadav and DW 12 Sh Ashok Gandhi.
ii) It is to be seen from the evidence of the prosecution witnesses as to
whether the prosecution has been able to prove on record that the accused persons had come to Diamond Palace in the aforesaid vehicle and abducted person was removed in the said vehicle from Diamond Palace. It is the prosecution case that the accused persons with the deceased Nitish Katara were spotted outside the Diamond Palace by PW 28 Ct. Inderjeet Singh, PW 32 Ct. Satender Singh. No doubt PW 28 Ct. Inderjeet Singh has not 972 fully supported the prosecution case with regard to the fact that he had seen the deceased Nitish Katara in the company of the accused persons while he was on duty at Chetak 13 T point near Diamond Palace but so far the presence of accused persons at T point Diamond Palace and the presence of Nitish Katara in a high roof vehicle Safari is concerned, he has categorically stated around 12/12.15 am he had checked car of the accused persons at the place where he was on duty and during court questions he admitted hat he had seen Nitish Katara in high roof vehicle Safari around 12.30 am and this witness was not cross examined on behalf of either of the accused. Nodoubt, this witness did not state that deceased Nitish Katara was travelling alongwith the accused persons in Tata Safari 973 but the presence of vehicle Tata Safari has not been disputed by the accused persons as this witness was not cross examined at all.
iii) The other important witness to this effect is PW 32 Ct. Satender Singh who has categorically stated as follows:
" On 16.2.02 when we were checking the vehicle coming from Diamond Palace, we had stopped the vehicle of the accused persons also. Both the accused persons were in Tata Safari and accused Vikas Yadav present in Court was driving Tata Safari. In Tata Safari vehicle there were 2 / 3 persons sitting. I cannot say who was sitting adjoining Vikas Yadav who was driving Tata Safari. Accused Vishal Yadav was sitting on the rear seat of Tata Safari. This vehicle was checked around 1215/1230 post mid night when I saw them. I have seen the photograph shown to me (photograph of Nitish Katara Ex.PW 11/5) but I cannot say whether Nitish Katara was in the vehicle or 974 not, there were 2 /3 persons in the vehicle."
iv) From the aforesaid testimony it is crystal clear that the accused persons had come to join the marriage of Shivani Gaur in a Tata Safari as they were checked at T point Diamond Palace by PW 32 Ct Satender Pal Singh in the company of PW 28Ct Inderjeet Singh.
v) During cross examination of this witness by Spl. PP for State he stated that he did not note down the registration number but registration number was of Punjab. It is pertinent to note that the Tata Safari recovered from AB Coltex Karnal at the instance of accused was also bearing the registration No. of Punjab ie PB 07H 0085. This witness was subjected to lengthy cross examination by the defence counsel. However, no suggestion was 975 given to the witness that accused were not seen in Tata Safari nor any suggestion was given that the accused persons had visited Diamond Palace on that night in black Mercedes. The witness was confronted with his statement U/s 161 Cr. PC to the effect that it was not mentioned in his statement that it was Tata Safari which was stopped there but the witness categorically stated that he had told SI Anil Somania on 4.3.02 that it was Tata Safari which was stopped there in which the accused persons were travelling. Once the witness has stated that he had informed the IO about the fact that accused persons were seen in Tata Safari, it was the duty of the defence counsel to ask the IO as to why he did not record this fact in the statement of the witness U/s 161 Cr PC. It is only the IO who could 976 have explained whether this witness had made any such statement to him or not. However, no such suggestion or question in this regard was put by the defence counsel to the IO, as such the presumption is that whatever the witness stated i e he had told the IO that it was Tata Safari which was stopped in which the accused persons were travelling, is correct. There is no evidence on record that this witness was enmical towards accused persons and would make false statement against them.
vi) The other important witness regarding the presence of the accused persons in Tata Safari alongwith the deceased is PW 33 Ajay Kumar whose evidence has already been discussed above. This witness categorically stated that on the intervening night of 16/170202 after meeting Subhash 977 while he was returning to Delhi from Ghaziabad on his scooter it went out of order and stopped at the crossing of Hapur Chungi, from his left side from behind one Tata Safari vehicle came which was driven by accused Vikas Yadav, who told him in uncivilised manner to remove the scooter from the road and then he went to his vehicle Tata Safari and saw four persons therein, out of which he knew three of them i.e. accused Vikas Yadav s/o Sh DP Yadav and accused Vishal Yadav s/o Sh Kamal Raj Yadav and third person is stout Pehalwan Sukhdev Yadav and the fourth person was not known to him who was wearing a red kurta and a shawl. This witness was also subjected to lengthy cross examination. However, no suggestion was given to him that he had not seen the accused persons at Hapur 978 Chungi alongwith the deceased Nitish Katara in a Tata Safari. No suggestion was given to the witness that the accused persons were not seen in the company of the deceased in any vehicle including Tata Safari. Thus in my opinion the prosecution has successfully proved on record through reliable and cogent evidence that the accused persons had used Tata Safari in the alleged commission of offence on 16/170202.
vii) I have also gone through the testimony of PW 38 Bharti Yadav who
though denied the suggestion of the prosecution that in her statement U/s 161 Cr. PC she had informed the police that on that day her brothers and Sukhdev Pehalwan had come in the marriage in Tata Safari and was confronted with her statement Mark PW 38/A Ex.PW 979 35/AB, however in her further cross examination by Spl. PP for State she did not deny specifically that the accused persons had taken away Nitish Katara from the marriage place in Tata Safari. It is not possible that Nitish Katara who was so close to Bharti Yadav and they were planning to get married, was not even aware of the fact in which vehicle the accused persons had come to Diamond Palace and took away the deceased Nitish Katara. At the same time it is important to note that during cross examination of this witness it was not suggested by the defence counsel that the accused persons had come to the marriage hall in black Mercedes.
viii) Thus in my opinion the use of Tata Safari in the commission of crime has been proved by the prosecution beyond 980 reasonable doubt. Now it is to be seen whether the accused persons were able to create any doubt or disproved this fact by leading any cogent evidence that they had come to the marriage hall in black Mercedes and not in Tata Safari bearing registration No. PB 07H 0085 and that Tata Safari was lying with Nawab Motors from 10:45 am on 16.2.02 till 10.3.02. Before I proceed to discuss the testimony of the defence witnesses, it is necessary to peruse the statements of the accused persons U/s. 313 Cr PC.
ix) So far accused Vikas Yadav is concerned, in his statement U/s 313 Cr PC he denied the use of Tata Safari. The two relevant questions put to him alongwith their answers are reproduced as follows:
''34Ques: It is further in evidence against you that 981 thereafter you alongwith your co accused persons Vishal Yadav and Sukhdev Yadav took the deceased Nitish Katara in Tata Safari bearing NO. PB 07H 0085 towards Hapur Chungi. What have you to say? Ans: It is incorrect. Though myself and accused Vishal had attended the marriage but we had not gone there in Tata Safari as mentioned in the question and there was no Nitish Katara or Sukhdev Yadav with us. It is incorrect that after leaving the banquet hall we had gone to Hapur. We had to go to party of Amit Gandhi at Raj Nagar and we had taken the route via Kavi Nagar to reach Raj Nagar. 40Ques: It is further in evidence against you that Tata Safari vehicle bearing No. PB 07H 0085 in which you were travelling alongwith your co accused Vishal Yadav, Sukhdev Pehalwan and Nitish Katara ( now deceased) was stopped firstly by the police officials namely constables Satender Pal Singh and 982 Inderjeet Singh posted at Chetak 13 a Police Patrol Car near Diamond Palace for checking at about 12.15/12.30 mid night, what do you say?
Ans: It is incorrect. '' x) Thereafter accused Vikas Yadav in answer to question No 238 stated that he
went to attend the marriage of Shivani Gaur with his cousin brother/accused Vishal Yadav in his Mercedes. He further stated that Tata Safari was extensively used during the elections upto 14.202 and was sent for repairs at the authorised dealer on 15.2.02 in the late evening itself. Thus, there was no question of him getting Tata Safari to the wedding venue on 16/2/02. Infact he was using his Mercedes.
xi) The perusal of disclosure statement 983 Ex PW 35/16 made by accused Vikas Yadav to IO SI Anil Somania shows that in this statement he disclosed about the use of Tata Safari. Similarly in the disclosure statement of accused Vishal Yadav Ex.PW 35/17 the use of Tata Safari in the alleged commission of offence finds mention.
xii) The accused persons examined two witnesses DW2 Madhu Mohan Nair and DW3 Shaktichand to prove that at the time of alleged commission of offence Tata Safari bearing registration No. PB 07H 0085 was with Nawab Motors at E 11 Sector 11 Noida. The other related witnesses examined by the defence are DW 8 Gaurav Agarwal and DW 11 Ombir Singh.
xiii) DW2 Madhumohan Nair, an employee of Nawab Motors testified that it is 984 authorised workshop from Tata Motors for Tata Motor vehicles and is a private limited concern. The workshop is working under the supervision of Tata Motors. He produced the record pertaining to vehicle No. PB 07H 0085 Tata Safari. He also produced the history of the aforesaid vehicle and the gate pass. He testified that since 3.4.01 this vehicle was being taken care of by their concern regularly. The vehicle also came to the workshop on 4.1.02 and thereafter on 16.2.02. He stated that thereafter the vehicle never came to the workshop in the year 2002. He stated that on 16.2.02 the vehicle was received in Nawab Motors at 10.49 am , the job card was prepared and the vehicle was taken for service as well as for repairs. He stated that it took 3 to 4 days for repairs . The Vehicle was 985 delivered back on 10.3.02. The gate pass was prepared. He produced the computerised vehicle history Ex. DW 2/A and the photo copy of the gate pass Ex. DW 2/B subject to filing of the office copy/ attested copy of the same. The witness when examined on 5.7.07 did not produce the register containing entries regarding gate pass. He was directed to produce the same but he did not produce the same.
xiv) He stated that the requisition for the motor parts which are required to be used for repairs is sent from Nawab Motors to Tata Motors and the same is always reflected in the vehicle history card. Further that they also maintain a store of Tata Motor parts in Nawab Motors. He stated that the contents of job card also reflect in the computer in the history of the vehicle. The vehicle referred 986 above remained with Nawab Motors from 16.2.02 10:49 am till 10.3.02. During this period the vehicle never went out of Nawab Motors nor was handed over to anyone. He stated that the requisitions of the different parts were sent till 18.2.02 as reflected in Ex.DW 2/A. The job card was preserved in the computer and that is reflected in final computer statement which is Ex DW 2/A. He testified that the trial/ test drive of a vehicle is always taken after the repair of the vehicle is complete and the test drive is taken by the supervisor alongwith the mechanic. He testified that the test drive of this vehicle was performed after 18.2.02.
xv) Perusal and appreciation of the testimony of this witness shows that he did not give the exact date when the vehicle was ready for delivery. He simply stated that the 987 test drive of the vehicle was performed after 18.2.02 and as per his testimony the test drive is always taken after the repair of the vehicle is complete.
xvi) This witness categorically mentioned that the mode of the payment of the repairs of the vehicle was in cash as the company only accepts cash. However, the bill against which the payment was made by the party was not produced by him. He produced only computerised generated bill. He claimed to have sent the requisition for the parts to store room and he also claimed that as per his knowledge all the parts which were used in the vehicle for repairs were received from the store of Nawab Motors but he did not produce the store register or the stock register to substantiate his claim. 988 xvii) He also admitted that in the history of the vehicle Ex.DW 2/A the amount charged for each part was not mentioned. xviii) He admitted that when the vehicle enters the gate, the number of the vehicle is mentioned in the register maintained by the guard at the gate but no such register was produced to prove the entry of the vehicle in Nawab Motors.
xix) He admitted that initially when the vehicle enters the gate service adviser prepares the job card on a plain slip and then this slip is given to the computer incharge in the workshop who takes out a printed job card from the computer and the copy of the same is given to the customer.
xx) He admitted that on the initial job card / the slip the name of the 989 customer, address and telephone number is mentioned and the same also bears the signature of the service adviser. Service adviser also discloses the approximate cost of the repairs and time of delivery after repairs but the initial job card was not produced in the court.
xxi) In answer to the questions of prosecutor as to who brought the vehicle to the workshop, he stated that it was brought by the driver but he did not know his name. xxii) He admitted that the gate pass is issued by the person who accepts the payment and after the vehicle leaves the company/ workshop the gate pass is delivered at the gate to the guard and entry is maintained in the register.
xxiii) Strange enough in the present case 990 neither the register maintained by the guard at the gate in which the entry of the car leaving the workshop was made nor the gate pass surrendered by the customer was produced.
xxiv) He further testified that the vehicle in the present case was ready for delivery on 19.2.02. However, there is no explanation on behalf of the defence as to why the delivery of the same was taken on 10.3.02 and who took the delivery and how the vehicle reached Karnal from where it was got recovered by the accused persons. xxv) DW2 Madhu Mohan Nair admitted that when the customer goes to the cashier for payment at that time he signs the job card and gets gate pass. When the gate pass Ex.DW 2/B was shown to him he admitted that it 991 was bearing his signature and he also admitted that he was not working as cashier when this gate pass was issued. He failed to give any reason that if he was not the cashier and had not accepted the payment why did he sign the gate pass. In defence the cashier has not produced to prove that the payment was made with regard to the servicing / repairs of the vehicle and thereafter the gate pass was issued by his witness. Strangely the register maintained at the gate showing the entries of gate pass was not traceable as per the testimony of this witness and he did not produce the original gate pass on the pretext that the same is with the customer, whereas lateron he admitted that after the gate pass is given to the customer, who delivers the same at the gate to the guard to take the vehicle out 992 of gate . He stated that the original gate pass was not traceable. He further admitted that he had not brought the original bill invoice nor the stock register nor he could produce any authority from the company director giving him permission to appear before the Court as a witness.
xxvi) He admitted that in February 2002 he was working as workshop incharge but in the computer vehicle history of Tata Safari bearing No. PB 07 H 0085 Ex.DW 2/A at point D to G his name is mentioned as a mechanic.
xxvii) He admitted that the details of the spare parts used in the vehicle when it came for repairs on 4.7.01 are not given in Ex.DW 2/A, whereas perusal of the record shows that with regard to the repairs of the vehicle on 993 16.2.02, the details of the parts used are given in Ex.DW2/A. xxviii) The defence has also relied upon the testimony of DW8 Gaurav Agarwal that the payment for the repairs of Tata Safari bearing No. PB 07 H 0085 was made to Nawab Motors vide a cheque of Rs. 25,000/ dtd 19/2/02 from the account of Oswal Sugar Ltd. To that effect DW8 produced the certificate copy of the bank statement of Oswal Sugar Ltd Ex.DW8/A and the bank certificate Ex.DW8/B regarding the transfer of payment of Rs. 25,000/ in the account of Nawab Motors. The defence has also relied upon the testimony of DW7 Shaktichand of Nawab Motors, who produced two bank statements of the company Ex.DW7/S & T respectively for the period 27/9/01 to 28/9/01 and 20/2/02 to 21/2/02 to prove the payment of 994 Rs. 20,000/ and Rs. 25,000/ respectively received by them from Oswal Sugar Ltd. xxix) Now it is to be seen whether there is any evidence from Nawab Motors that they had accepted the payment of Rs. 25,000/ vide cheque dtd 19/2/02 encashed in their account on 21/2/02 in respect of the repair /service charges of Tata Safari sent for repairs on 16/2/02. So far DW8 Gaurav Agarwal is concerned who claims himself to be a record keeper in accounts with Indian Sucrose Ltd (old name Oswal Sugar Ltd) appeared as DW8 and produced the record pertaining to some payments made by Oswal Sugar Ltd to Nawab Motors through cheque of Rs. 25,000/ dtd 19/2/02 and the payment was withdrawn from the account of Oswal sugar Ltd on 21/2/02. However this witness during his cross 995 examination failed to produce any invoice to show in what context the aforesaid payment was made to Nawab Motors as reflected in statement of account Ex.DW8/A. He voluntarily stated that the payment of Rs. 25,000/ was made in account but he could not say why it was made in account. There is no evidence on record that any advance payment was sought for by the Nawab Motors from Oswal Sugar for the repairs of the vehicle. The document Ex.DW2/A shows that the bill raised for the servicing and repair of the vehicle was 14,811/ and not Rs. 25,000/ the payment of which has been proved by the defence through cheque. Besides, DW2 Madhumohan Nair has categorically stated during his cross examination that in the presence case after the payment was made to the cashier he signed the gate pass. He 996 stated that no payment was made in respect of this vehicle through cheque as deposed by DW8 Gaurav Agarwal and the gate pass was handed over after the payment was made. No doubt DW7 Shaktichand who appeared on behalf of Nawab Motors has produced certified bank statements issued by Bank Manager, Centurion Bank of Punjab, Outer Circle, Cannought Circus as Ex.DW7/ S & T and the certificate of the Bank Manager Ex.DW7/U in respect of the payments of Rs.25,000/ received from Oswal Sugar but he did not depose in respect of repairs of which vehicle the payment was accepted, when that vehicle was repaired. No document has been proved by this witness that any payment of Rs. 25,000/ was received by cheque in the account of the company on 21/2/02 with regard to the repairs of Tata 997 Safari No. PB 07 H 0085 . Moreover, when DW2 has testified that the vehicle was repaired within 34 days after it was received in the company on 16/2/02 it shows that it was ready for delivery and then there was no need to make any advance payment and the entire bill could be cleared while taking its delivery after repairs. Besides, DW2 MM Nair has categorically stated that all the payments are accepted by the company in cash so there was no reason to make this payment through cheque towards repairs of this vehicle to Nawab Motors. Besides this, there is no other defence evidence with regard to the fact that the vehicle was in the company of Nawab Motors since 16/2/02 at 10:49 am. DW2 MM Nair at one stage stated that the vehicle was repaired within 34 days of 16/2/02 whereas in the later part of his 998 examination he stated that the vehicle was ready for delivery on 8/3/02. He has failed to explain as to why it took around 16 days for vehicle to be ready for delivery if it was already repaired within 34 days of 16/2/02. No record has been produced from Nawab Motors as to who had left the vehicle for repairs and who collected the delivery. No evidence has been led by the defence as to at what time the delivery was taken from Nawab Motors and what time it was left at Karnal , AB Coltex and who left it there. The best evidence for defence would have been of the driver who had left the vehicle at Nawab Motors and then collected the delivery and left it at Karnal. Surprisingly, accused Vikas Yadav in his statement U/s 313 Cr.PC has claimed that this vehicle was used extensively during elections upto 14/2/02 and 999 was sent for repairs at the authorised dealer on 15/2/02 in the late evening itself but he did not give the name of any such authorised workshop. If this vehicle was already sent to Nawab Motors for repairs and servicing as claimed by DW2 then there was no reason for accused Vikas Yadav not to disclose the name of the company as Nawab Motors. Besides, his statement U/s 313 Cr.PC is contrary to the defence evidence from Nawab Motors. As he stated in his statement U/s 313 Cr.PC that vehicle was left with the workshop on 15/2/02 late in the evening whereas witnesses from Nawab Motors claim this vehicle was received in the company on 16/2/02 at 10:49am. Besides, none of the defence witnesses have testified that Tata Safari was being used extensively by the accused during his election campaign. Thus, 1000 the defence led by the accused persons through the testimony of DW2 is contrary to the statement of accused Vikas made U/s 313 Cr.PC. xxx) Spl. PP for State has criticized the conduct of DW2 MM Nair first for the reason that in the computer history of this vehicle Ex.DW2/A he is mentioned as mechanic at point D to H whereas he was never a mechanic in the company and Secondly, for the reason that gate pass Ex.DW2/B was issued under his signatures on 10/3/02. DW7 Shaktichand categorically testified that none of the other gate passes issued in respect of any of the vehicles received on 16/2/02 were signed by MM Nair and it was only gate pass pertaining to this vehicle which was signed by him. xxxi) I find force in the argument of the Spl PP for State. No reason or 1001 explanation has been given as to why DW2 signed the gate pass particularly when he himself testified that it is the cashier who signs the gate pass of receipt of the payment. As such the gate pass is always issued after receipt of the payment in respect of the vehicle by the cashier but in the present case the bill date is 8/3/02but the gate pass was issued on 10/3/02. If the payment had already been received on 8/3/02 then why the delivery of the vehicle was not taken on 8/3/02 and was postponed till 10/3/02. All these discrepancies in the testimony of defence witnesses do not make them reliable. Particularly when the accused in his defence stated that the vehicle was sent to authorised workshop for repairs in the evening of 15/2/02. If the accused was already aware of the fact that the vehicle was with Nawab Motors then 1002 why did he make disclosure statement that the vehicle was concealed by them at Alwar and he could get the same recovered. He could straight away have informed the police that the vehicle was with Nawab Motors since 15/2/02 or 16/2/02. In view of the above discussion, I find that accused Vikas Yadav once again tried to mislead the court by producing false evidence but has failed in his designs.
xxxii) Now it is relevant to discuss the evidence of PW34 SI JK Gangwar, PW35 SI Anil Somania and PW27 Sultan Singh regarding recovery of Tata Safari.
xxxiii) PW34 SI JK Gangwar in this regard testified that from the spot (ie spot of recovery of hammer and wrist watch) they proceeded to Alwar as accused Vikas had disclosed that he could get Tata Safari used in 1003 the crime and the cell phone of the deceased. He led them to Alwar in Maharaja Building where office of accused persons was situated, but vehicle was not found there nor the cell phone. From there they led the police party to Sirisca Palace Hotel as accused persons told them that both these things would be recovered from there but again nothing was recovered from there. Then they were taken by the accused persons to Shanti Kunj a house in Alwar. There also recovery could not be effected and as such they returned to the PS Kavi Nagar and handed over the custody back to the Jail Supdt on expiry of police remand on 1/3/02 at 9am.
xxxiv) The evidence of PW34 SI JK Gangwar shows that since CJM Ghaziabad allowed police custody remand of accused 1004 persons only for 24 hours, the accused persons intentionally mislead the IO and PW34 SI JK Gangwar that vehicle was in Alwar and made them go from one place to another in search of Tata Safari so that police remand period was over without any recovery.
xxxv) The testimony of PW34 SI JK Gangwar is corroborated by the statement of PW35 SI Anil Somania who deposed on the same lines.
xxxvi) PW35 SI Anil Somania also proved the house search memo Ex.PW35/25, PW35/46 and PW35/47 showing no recovery of vehicle at H. No. 2, Maharaja Building Alwar, Sirisca Palace, Jaipur, Shantikunj Alwar. IO proved the relevant entries Ex.PW35/26 and PW35/27 in the GD in respect of departures and arrival as well as in respect of the recoveries 1005 effected and there is no cross examination in this regard by the defence counsel. This witness has further testified that the accused persons were sent to Distt. Jail, Ghaziabad to Dabra in terms of the orders of the Magistrate of Dabra on 6/3/02 in the custody of SI JK Gangwar vide DD No. 36 Ex.PW35/36. It is stated that since he had to go to Allahabad in connection with the writ petition filed by the accused persons, he left for Allahabad on the night of 7/3/02 and reached Ghaziabad on 8/3/02. SI Rakam Singh was made joint IO alongwith him by the SSP and in his absence he had moved an application for PC remand of the accused persons. On 8/3/02 he came to know that the court had ordered 48 hours PC Remand of the accused persons wef 9/3/02 at 2pm. At that time accused persons were confined at Dabra 1006 Jail. He testified that he therefore proceeded to Dabra alongwith police force on the night of 8/3/02 at 22:10 hours and GD entry Ex.PW35/37 in this respect was made. He testified that before he proceeded for Dabra he received telephone call from SI JK Gangwar from Agra who was coming back after leaving accused persons at Dabra. IO told him to remain at Agra to join him. From there SI JK Gangwar joined the IO and they went to Dabra where they reached at 8:30am on 9/3/02. As pointed out by the Spl PP for State all possible efforts were made by the accused persons to delay handing over of their custody to the Ghaziabad police at Dabra. It is already observed above that the CJM Ghaziabad had ordered that the accused shall remain in the PC remand for 48 hours wef 9/3/02 at 2pm onwards, however, the 1007 testimony of the IO clearly reflects the conduct of the accused persons and their advocates who represented them before CJM Ghaziabad. xxxvii) IO testified that it was 11am when he had handed over the orders Ex.DW35/38 of CJM Ghaziabad to the Judicial Magistrate Dabra who fixed the matter for 1pm for hearing but did not pass any order on his application for handing over the custody of the accused persons and he kept on postponing the application for further time. He stated that the advocates of the accused persons were also present there addressing the court.
xxxviii) He stated that he received the copy of the order passed by the Judicial Magistrate Ist Dabra at 7pm on 9/3/02 whereby the PC remand was allowed. The order is Ex.CW2/2. The copy of the order is 1008 Ex.PW35/39. After receiving the order, IO went to the jail for taking custody of the accused persons but the jail authorities refused to give the custody on the ground that it was night time and then finally the custody of the accused persons was handed over to them on 10/3/02 at 9:26am. I have no hesitation to say that the advocates of the accused persons managed to delay the handing over of their custody to the IO. It is seen that IO had only got 48 hours PC remand of the accused persons effective from 9/3/02 at 2pm but the custody was received on 10/3/02 at 9:26am. It seems even jail authorities were oblivious of the situation and had no sanctity for law and did not cooperate with the police of Ghaziabad to hand over the custody of the accused immediately on receipt of order of Judicial 1009 Magistrate Ist Dabra. So was the Judicial Magistrate Ist Dabra, who was misled by the accused persons or their advocates, though he was expected to act vigilantly and promptly. xxxix) IO further testified that after taking the accused persons custody he alongwith the police team and the accused persons proceeded towards Chandigarh and on the way stopped at Agra for taking meals. He interrogated the accused persons at Agra who disclosed that Tata Safari used by them can be either at Panipat or at Karnal. Then they went alongwith the accused persons to Panipat where the accused persons told them that the vehicle may be at taxi stand near shamshaan ghat. Police team reached there at 11pm but still no recovery was effected from there. At Panipat the accused persons told the number of Tata Safari 1010 as PB07H 0085 on being interrogated again and then on being interrogated sternly they told that the vehicle will be in Karnal. The conduct of the accused persons is self explanatory that they misled the police since the inception. Firstly, they told that the vehicle would be at Alwar, then at Sirisca Palace, then at Shantikunj and then at Panipat at a taxi stand near shamshaan ghat but at none of the places the vehicle could be found there and it appears that they were well of this fact that vehicle was not there but it was only with a view to pass the time to cover the period of PC remand. It was only within the knowledge of the accused persons as to where the vehicle was concealed. If as stated by the accused persons in his statement U/s313 Cr.PC that the vehicle had been given to authorised dealer for repairs / 1011 servicing on the evening of 15/2/02 is believed to be correct or if the evidence of the defence witnesses from Nawab Motors to the effect that the vehicle was delivered after repairs and servicing on 10/3/02 is believed to be correct it is a mystery as to how the accused persons were aware that the vehicle had been repaired and delivery was already made on 10/3/02 and it was present in the premises of the company AB Cotex Karnal from where it was finally recovered.
xl) The arguments of the defence counsel that why the accused persons were interrogated at Agra and thereafter at Panipat without the permission of the CJM Ghaziabad, in my opinion has no base as once the accused persons were in the police custody remand, it was the duty and right of the IO to interrogate 1012 the accused persons during investigation to find out truth to facilitate justice.
xli) PW35 SI Anil Somania, the IO has further testified that on 11th March the accused persons led them to thread factory namely AB Coltex and from there they got recovered Tata Safari No PB07H 0085. He also testified that chowkidar of the factory namely Sultan Singh was also associated in the recovery of the vehicle vide recovery memo Ex.PW27/1. The perusal of Ex.PW27/1 shows that these are not bearing the signatures of the accused persons. The IO has clarified that the accused persons had refused to sign the recovery memo and to this effect a note is also found to be made by the IO on the recovery memo itself.
xlii) The argument of the defence 1013 counsel is that no recovery was effected in the presence of accused persons from AB Coltex and it is only for this reason the signatures of both the accused are not appearing on the recovery memo.
xliii) However, in my opinion this argument has no substance, particularly in view of the fact that since the inception the argument of the defence counsel is that the signatures of the accused persons were obtained on the blank papers particularly when they were taken to Shikarpur road from where the dead body was recovered. However, if the police had obtained the signatures of the accused persons on the blank papers, it was not difficult for them to prepare the recovery memo Ex.PW27/1 of Tata Safari on these papers. This shows the fairness of the police that when the 1014 accused persons did not sign the same IO made an endorsement to this effect on the recovery memo itself. Besides, I find, recovery of Tata Safari from AB Cotex Karnal is also supported by the evidence of PW Sultan Singh.
xliv) PW27 Sultan Singh categorically stated that in the month of March 2002 Tata Safari was recovered by the police in his presence from the factory. He admitted his signatures on the seizure memo Ex.PW27/1 at point A but he stated that he had signed on a blank paper. His said testimony that he was made to sign on a blank paper does not inspire credence particularly when he has admitted that recovery was effected in his presence. Besides it cannot be lost sight of the fact that he was employee of Mr. DP Yadav to whom the company AB Coltex belonged and as such in 1015 this regard he made a favourable statement to the accused persons. Though PW27 could not tell the number of the vehicle seized from there but he admitted it to be correct that it was having Punjab number. It is important to note that this witness throughout his chief examination or cross examination by SPP did not state as to when this vehicle was parked in this company . A suggestive question was put by counsel for accused Vishal which is reproduced as follows:
Ques. : This vehicle had come for the first time in the morning on that day in the factory?
Ans. Yes. xlv) This was a suggestive question put
to the witness in defence but still it is of no help to the defence as if the vehicle was brought to the company only on the morning 1016 on 11/3/02 then how it came to the knowledge of the accused persons that this vehicle was brought to Karnal and parked in the premises of AB Coltex. More so when it is proved through the testimony of PW34 SI JK Gangwar and PW35 SI Anil Somania that they raided the factory at the instance of accused persons. It is further pertinent to note that this witness has categorically stated while answering the court questions that the factory is lying closed since it was burnt about 1 /1½ year ago before the arrival of the police. Then where was the necessity to park the vehicle in the burnt factory. It only leads to the inference that this was to avoid the recovery of the vehicle and infact it was concealed in the said factory. xlvi) The defence counsel has argued that the statement of this witness was recorded 1017 with delay on 19/3/02 U/s 161 Cr.PC however the IO has explained that since police remand was to be expire at 2pm and the accused persons had to be produced before CJM Ghaziabad at 2pm so they were in hurry to rush back to Ghaziabad from Karnal. This explanation is self explanatory for not recording the statement of Sultan Singh when the recovery of Tata Safari was effected. Moreover, Sultan Singh has admitted recovery of Tata Safari in his present from AB Coltex and there is no reason to disbelieve his testimony. Besides, even the accused persons in their statement U/s 313 Cr.PC have admitted that they were taken to Karnal by the police and from there they were brought back to Ghaziabad and were produced in the court of CJM. The police had not gone to Karnal for a ride or fun sake but 1018 for the investigation of the present case and recovered at their instance Tata Safari Ex.PW33/P1 used in the commission of the offence by the accused persons. The argument of the defence counsel that nothing incrimination was recovered from inside Tata Safari Ex.PW33/P1 is again of no consequence as the vehicle was used in the incident on 16 17/2/02 and it was recovered on 11/3/02 so the possibility of every incriminating evidence available in the vehicle being destroyed at the instance of the accused persons or his family members and well wishers cannot be ruled out.
Besides, the knowledge of the accused persons that the vehicle was at Karnal itself shows that they would not leave any incriminating evidence in the vehicle showing their involvement in the commission of crime. 1019 xlvii) The prosecution has proved on record through the testimony of PW9 Vikram Singh, STA from Registrar of Company, Punjab & Himachal & Chandigarh, PW12 Ms. Kulwant Kaur, DTO, Hoshiarpur Punjab and CW1 MK Katara, Director, Oswal Sugar Ltd, that the vehicle Tata Safari No. PB 07 H 0085 was registered in the name of company M/s Oswal Sugar Ltd, GT Road, Mukeria, Hoshiarpur and that Mr. DP Yadav, the father of accused Vikas Yadav was one of the Directors of the said company. Moreover this fact is not disputed by the accused persons.
xlviii) The vehicle was recovered from AB Coltex and through testimony of CW1 MK Katara it has come on record that AB Coltex , Karnal is the company in which part of the management is that of Oswal Sugar Ltd of 1020 which Mr DP Yadav is one of the Directors. xlix) In view of the above discussion, in my opinion the prosecution has proved beyond reasonable doubt the use of Tata Safari in the commission of the crime and its recovery at the instance of accused persons from the premises of a factory AB Coltex, Karnal in furtherance of their disclosure statement. This is again another link in the chain of circumstances proved by the prosecution against the accused persons.
SPECIAL REPORT
i) The counsel for accused Vishal Yadav has submitted that in the present case special report was sent with delay giving rise to presumption that FIR was antetimed and manipulation was done. He has drawn my 1021 attention to Rule 97 of UP Police Rules in Chapter 10. As per Rule 97, whenever information relating to the commission of a cognizable offence is given to an officer incharge of a police station, the report will be prepared in triplicate, one copy will remain in the book, other will be given to the complainant and original will be sent to Magistrate having jurisdiction through Supdt. of police.
ii) The perusal of Rule 97 shows that it is not mandatory to send the original report to Magistrate, as the word used is not shall but ''will be''.
iii) The defence have relied upon authority reported in 1994(2) RCR Page 609 whereby it is held by the Hon'ble Apex Court while tallying with the provisions of Sec. 157159 Cr.PC in a 1022 murder case that '' it is mandatory to sent a report to the Magistrate promptly without delay even on Sunday's or holidays. Report of the murder was sent on 3rd day of the occurrence. Accused was acquitted on this account coupled with other infirmities. It was further held that circumstances showed the FIR and fard banyan were recorded much later in point of time. This and other circumstances cast cloud on the prosecution. ''
iv) I agree with the aforesaid authority and the contention of the defence counsel that to ensure that investigation is not delayed and manipulated, special report in certain cases of sensitive nature must be sent without delay.
v) In the present case the special report 1023 admittedly was not sent to the Magistrate after case U/s. 364 IPC was registered on 17.02.02 but it was sent after Section 302 IPC was added to the FIR, on receipt of report of finger prints expert to the effect that finger prints of the unidentified deadbody tallied with the finger prints of Nitish Katara taken out from the record of his driving licence from Licensing Authority Sarai Kale Khan.
vi) IO PW 35 SI Anil Somania testified that he added Section 302 / 201 IPC in the FIR registered about kidnapping of Nitish Katara on 25th Feb 2002 at 6.30 pm and this fact he also mentioned in GD vide entry No 39 Ex.PW 35/18 and information was sent to SP City and SO. He further stated that on 26.2.02 he gave report Ex.PW 1024 35/20 to the Court of the CJM Ghaziabad about addition of Sec. 302/ 201 IPC in the FIR . The aforesaid testimony of the witness has not been cross examined by the defence counsel.
vii) The argument of the defence counsel as to why special report was not sent on 17.2.02 when FIR was registered U/s 364 IPC is of no consequence as, as per Rule 101 Chapter 10 UP Police Rules, special report is required to be sent immediately only on the registration of following cases:
a) dacoity
b) robbery except unimportant cases
such as snatching earrings.
c) torture by police.
d) escape from police custody.
e) forging of currency notes.
1025
f) manufacture of counterfeit coin.
g) serious defalcations of public money
including theft of notes or hundis from letters.
h) Important cases of murder, rioting, burglary and theft, breaches of the peace between different classes, communities or political groups and other cases of special interest.
viii)As per the above list, no special report was required to be sent in a case registered with the allegations of abduction and therefore there was no lapse on the part of the prosecution in not sending at all the special report on 17.02.02 when the case was registered U/s 364 IPC. Besides, defence has failed to show that delay in sending special report caused any injustice to the accused persons. It held in 1997 Crl. LJ 1026 2853 that the delay in sending special report to Magistrate and failure to record the substance of FIR in daily diary, is not fatal when no prejudice was caused to the accused.
ix) The defence counsel has failed to point out that any prejudice was caused to the accused persons in the present case by not sending the special report on 17/2/02 when the case was registered U/s 364 IPC and its being sent on 26.02.02 when Section 302/201 IPC was added to the FIR.
FIR / DD ENTRY Ex.DW10/A
i) The counsel for both the accused persons have also raised objection that since DD No. 12 dtd. 17.2.02 Ex. DW 10/A was already registered with PS Pahar Ganj at the instance of Sh Nishit Katara, the father of the deceased Nitish Katara about his missing. 1027 It should be treated as an FIR as the complaint Ex PW 1 /2 was lodged by the mother of the deceased with PS Kavi Nagar subsequent to the DD and this cannot be treated as FIR. It is further submitted that in this DD the father of the deceased has nowhere mentioned or even expressed any suspicion that his son Nitish Katara was abducted from the Diamond Palace by the accused persons and that as per DD he only reported to the police that his son Nitish Katara aged 24/25 years had gone to Diamond Palace Ghaziabad in a taxi to attend a marriage and the taxi had returned but his son had not returned. It is submitted that in view of the aforesaid report the complaint Ex PW 1/1 lodged by Smt Neelam Katara with PS Kavi Nagar wherein she gave the names of 1028 the accused persons appears to be after an thought and motivated.
ii) However I find no force in the aforesaid argument as DD No. 12 ExDW 10/A was recorded only on the basis of an information given by Nishit Katara to the police that his son had not returned from Diamond Palace Ghaziabad where he had gone to attend the marriage and this in no manner can be equated with the first information report as vide the aforesaid DD no information relating to the commission of a cognizable offence was given by Nishit Katara to the police. As per the provisions of Section 154 Cr PC it is only an information relating to the commission of a cognizable offence which shall be reduced in writing by an officer incharge of the PS and this is the first information report which puts 1029 the police machinery into action. DD No. 12 Ex. DW 10/A is no doubt not containing any such material to draw inference that Nitish Katara had been abducted by the accused persons and the argument of the defence counsel that if the story of the complainant in her complaint Ex. PW 1/1 was correct then why the father did not report to the police against the accused persons, the answer to this is given by PW 30 Neelam Katara herself in her cross examination whereby she testified that her husband was suffering from neurological problem i e motoneuron disease which is progressive degenerating disease and there is no known modern medicine for the same and as such she wanted to keep him away from the stress of running around in the PS etc. It shows that may be he was not even 1030 informed that his son had been abducted and that too by the accused persons. It is important to note that Nishit Katara is no more alive, as such it cannot be brought on record as to under what circumstances he lodged DD No. 12 with PS Pahar Ganj and whether he was aware of the fact that the deceased had been abducted by the accused persons . The only important witness who could disclose about this fact was PW 30 but the defence did not put any question in this regard during her cross examination that her husband was aware of all the details of the incident. It is on record that the aforesaid DD was transferred to PS Kavi Nagar on 17.2.02 itself and it was entered in GD No. 18. I have perused the GD register whereby the aforesaid DD finds mention.
iii) In these circumstances, there are 1031 no two opinions that DD No 12 Ex.DW 10/1 did not put the police machinery into action but it is only on the basis of complaint Ex PW 1/1 that FIR was registered with PS Kavi Nagar and that was the first information report and investigation was carried out by the police.
iv) Lot of hue and cry was raised by the defence counsels during the cross of arguments regarding poster Ex.PW1/DA that in the same, the names of the accused persons was not mentioned and it was only the posted to trace out a missing person. It is submitted that the poster was prepared in this manner only for the reason that the complainant did not know who were involved in the present case.
v) I have seen the poster Ex.PW1/DA and no doubt the names of the accused persons 1032 are not mentioned therein but it is incorrect to say that till that date the names of the accused persons were not known, as the case number of the present case ie 192/02 U/s 354 IPC is specifically mentioned in the poster which proves FIR had already been lodged till that time which contained the names of the accused persons. It is also true that in the body of the poster it is mentioned that Nitish Katara was missing from the marriage function since 12:30 am on the night of 1617/2/02 but the title of the poster is absolutely clear where it is clearly mentioned ''Talash Apharit'' ie search for abducted person. Therefore in my opinion merely non mentioning the names of the accused persons in the poster does not effect adversely the prosecution case in any manner. There is not an iota of evidence on record to 1033 say that the FIR Ex.PW1/2 was not registered on 17/2/02 but lateron as claimed by the counsel for the accused persons.
vi) The counsel for both the accused persons have further submitted that there is no evidence on record as to how Neelam Katara named both the accused persons in her complaint Ex.PW1/1.
vii) Ld. Spl. PP for State has submitted that on this point PW30 was not cross examined at all and that PW39 had stated that the parentage of Vishal was disclosed by Bharti Singh. It is further submitted that since Bharti Singh was closed to the family of Nitish Katara she might have disclosed the name of the father of accused Vishal Yadav to them and to this effect PW30 was the best person to clarify but was not subjected to cross examination in 1034 this regard.
viii) To appreciate the arguments of both the parties, I have gone through the complaint Ex.PW1/1 where the names of the accused persons alongwith their parentage are mentioned besides that they are residents of Ghaziabad. The perusal of the testimony of PW30 shows that she in detail has stated as to how the things took place. The relevant portion of her testimony is reproduced as follows :
'' As far as I know he (Nitish) had hired a taxi for this purpose. Marriage of Shivani Gaur was to be solemnised at Diamond Palace Banquet Hall at Ghaziabad. From my house Nitish and Bharat Diwakar had gone to the marriage. Although I and my husband were also invited but due to illness of my husband we did not go. Nitish had told that on 17th Feb. there was a 1035 reception in Reddison which we may attend. Nitish and Bharat Diwakar had left my house for attending s marriage between 9:30 - 10 pm on 16th Feb. Shivani' 2002.
When my son left he was wearing red colour kurta, churidar pajama and a shawl. He was having one wrist watch, one golden chain and a pendant with tiger claws which Bharti had given him, and was carrying a mobile phone. My son was wearing wrist watch make Esprit. I remember about this watch very clearly because it was presented to him in December 2001 by Bharti and I had argued with him not to accept costly presents from her.
From Ghaziabad only Bharat Diwakar returned home. He had come back by the same taxi by which they had gone. I had discovered it a little later and 1036 not immediately when Bharat Diwakar came back. Bharat did not give me any satisfactory answer about Nitish and he went for sleeping after coming. I tried to contact on his cellphone but was unable to contact. I was taking rounds of the house, then when I went out I saw family gypsy and the car both were standing there. I asked Bharat how Nitish would come back then Bharat told me that they had gone by taxi and he had come back in the same taxi and Nitish may come with someone else. It was totally unlike. I also asked Bharat did he meet him before starting from Diamond Palace and he said no. When I asked him how does he know that he would come with someone else and he had no answer.
Q. What further efforts you made to locate your son?
Ans. Thereafter I took Bharti'
s cell no. from
1037
Bharat. I called up Bharti twice on that morning as far as I remember. I had called her somewhere aroiund 7 - 7:30 am from landline of our house. Bharti was very upset when I talked to her on telephone. I told her that Nitish had not come back, she told me that she had also been trying to contact on his cellphone but she had not been able to contact except once. I am not sure whether it was Bharti who had been able to speak to Nitish or Bharat or Gaurav Gupta but somebody had talked to her only once. Bharti asked me that if these boys ie Bharat and Gaurav had not tole me that Nitish had been taken away by her brothers. I told her that they had not informed me this.
Q. Did she tell the name of her brother who had taken Nitish away? (question is objected. Objection overruled). Ans. She had told me the names of both accused persons 1038 Vikas and Vishal who had taken away Nitish. I asked her where they had taken him. Then she told me that they were not telling her anything and I should talk to her father. I then asked Bharat, then Bharat told me that Rohit Gaur had told that the boy who had called Nitish was Vishal and Rohit Gaur had seen him going with both of them ie Vikas and Vishal.' '
ix) Her above statement clearly shows that the first source of information was Bharti Yadav when PW30 called upon her on her mobile in the morning of 17/2/02. Bharti Yadav told her whether these boys ie Gaurav Gupta and Bharat Diwakar had not told her that Nitish had been taken away by her brothers Vikas Yadav and Vishal Yadav. After this she asked Bharat Diwakar and then Bharat told her that Rohit Gaur had told that the boy who 1039 had called Nitish was Vishal and Rohit had seen him going with both of them ie Vikas and Vishal.
x) The argument of the defence counsel is that Rohit Gaur had not been examined as prosecution witness and so far Bharti is concerned if she gave any information to PW30 this fact does not find mention in the FIR. The answer to this question is available in the statement of PW30 itself. During cross examination PW30 testified that she was reluctant to show cards / albums to the police officials at that time ie on 17/2/02 as she did not want Bharti Yadav to be in trouble. This shows that she had soft corner for her and did not want to malign her and it is quite possible that this was the reason PW30 did not mention in her complaint Ex.PW1/1 that she got this 1040 information from Bharti Yadav. At the same time it is only to the knowledge of the complainant as to why she did not mention in the FIR the name of Bharti Yadav and what information she had passed on to her. No question was put to PW30 during her cross examination in this regard. So it is deemed to be admitted by the accused persons that Neelam Katara was informed about this by Bharti and thereafter by Bharat Diwakar. The knowledge of Bharti Yadav about the fact that Nitish Katara was abducted by the accused persons is apparent from call record Ex.PW22/2 which shows that at 4am she made a call from her mobile No. 9810038469 on the mobile of Bharat Diwakar and thereafter there are several calls to Bharti Yadav on the same day by PW30 and Bharat Diwakar which shows that she had 1041 the complete knowledge as to what had happened on the night of 1617/2/02 at Diamond Palace. The argument of the defence counsel that Rohit Gaur had not been examined in the present case by the prosecution. As such the statement of Neelam Katara does not find any corroboration to the effect that Rohit Gaur had told Bharat Diwakar that it was accused Vishal Yadav who had taken away the deceased from Diamond Palace. To this effect the ordersheet dtd 3/4/03 is relevant on which day Rohit Gaur had been dropped by the prosecution. As per the ordersheet Ld. Spl. PP stated before the court that as per the instructions of the IO present in court, witness Rohit be dropped as he seems to be won over.
The reason why he was dropped is given in the ordersheet itself that he was won over by the 1042 accused persons and this finds support from the fact that when he appeared as a prosecution witness No. 8 against the coaccused Sukhdev Yadav facing separate trial vide SC No. 117A/06 he did not support the prosecution and was declared hostile.
xi) The other argument of the defence counsel is that even PW Bharat Diwarkar has nowhere stated that he was informed by PW Rohit Gaur that the person who had taken away Nitish Katara from the Diamond Palace was the accused Vishal Yadav s/o Late Sh. Kamalraj Yadav. To this effect the conduct of Bharat Diwakar has already been observed that he was under the influence of the accused persons as firstly he denied that his statement was recorded by the police on 17/2/02 though in his testimony he admitted 1043 that at the time the enquiries were made from Neelam Katara by the police of PS Kavi Nagar on 17/2/02 he too was called and interrogated and narrated the entire episode which in my opinion itself amounted to his statement before the police, and lateron he did not support the prosecution case in the court that it was accused Vishal Yadav who had taken away deceased from the Diamond Palace. Though at the same time it is observed he did not deny also that accused Vishal Yadav was the same person. In view of the above discussion I am of the opinion that the evidence of PW30 itself is sufficient to prove that she got the knowledge about the involvement of accused persons from Bharti Yadav and from Bharat Diwakar and as such she named both the accused alongwith their parentage in her complaint Ex.PW1/1. 1044
Black Ash
i) The other argument of the defence counsel is that though PW 4 Inspt CP Singh had testified that he had taken the burnt ash from near the deadbody which was deposited in the malkhana on 17.2.02 as per the entry No. 48 in the malkhana register and lateron the same was handed over to Ghaziabad police on 6/3/02, it is submitted that the burnt ash was not sent to CFSL for chemical examination. I agree that it is a lapse on the part of the IO. However, still no benefit can be given to the accused persons for this lapse as it is proved on record through the postmortem report that the death was due to the head injury which was antemortem and the burns were postmortem. As such the burnt ash could only prove as to what material was used for burning the deceased 1045 to destroy the evidence and nothing more.
Conduct of IO.
i) The counsel for both the accused have alleged that the IO PW35 did not investigate the case fairly and was on enmical terms with Sh. DP Yadav. To that effect they have examined DW21 Adv Samar Singh who claims that he has been handling and looking after the cases of Sh DP Yadav, father of accused Vikas Yadav since the year 1986. This witness has been examined to the effect that SI Anil Somania the IO of the present case when was posted in District Sambhal from where Sh. DP Yadav was MP, had a tussle with Sh DP Yadav since he was pursuing the matter of local inhabitants of Sambhal Constituency. He testified that since Mr DP Yadav had declined to supply the wine to the police officers free of cost 1046 it resulted in his implication in a false case. However, this witness failed to give any details of any such false case against Sh DP Yadav or accused Vikas Yadav. He produced on record Ex.DW 21/A the certified copy of the judgment in criminal writ petition No. 21955/2004 titled DP Yadav Vs State of UP & Ors and it is stated that when this order was passed at that time Sh. DP Yadav was member of Parliament. He further stated that the investigation conducted by SI Anil Somania in the present case was tainted. This witness in answer to court question stated that his opinion that investigation was tainted, was formed since SI was not having good reputation in PS Kavi Nagar and several cases were hushed up and no final report was submitted to the Court. He further stated that presently Anil Somania was under suspension 1047 for false encounter after taking money from the parties.
ii) The perusal of the testimony of this witness shows that his opinion that PW35 did not investigate the matter fairly was based on the fact that the witness was not carrying good reputation in PS Kavi Nagar. The witness has failed to quote any instance as to how he felt that the reputation of PW35 was not good in the PS Kavi Nagar. Again the witness failed to give any account of the cases which were falsely hushed up PW35 to say that he never conducted investigation fairly.
iii) The accused persons have also produced DW25 Jamshed Khan to prove that the testimony of PW35 is not worth reliance. He testified that he conducted a sting operation on SI Anil Somania & Ors. in Feb 2005. It is 1048 stated that the sting operation was conducted regarding encounter done by SI Anil Somania to expose as to how false encounters were done by the police. However this witness failed to produce the recording of any such sting operation and claimed that after 90 days of the recording the same is recycled.
iv) In the absence of any such record the testimony of this witness cannot be believed to the effect that any such sting operation was conducted on Anil Somania.
v) In these circumstances the accused persons have failed to bring any material on record that PW35 SI Anil Somania had any enmity with the accused persons or used to hush up cases after being bribed or was involved in any sting operation. There is no material on record to say that the testimony of 1049 PW35 SI Anil Somania in the present case is not worth reliance and should be discarded.
vi) The argument of the defence counsel is that the IO PW 35 SI Anil Somania did not conduct the investigation fairly and under the influence of the complainant whose father was a senior police officer, he falsely implicated the accused persons and that to manipulate the case against the accused persons the statements of the prosecution witnesses were recorded with delay. However, I find no force in the aforesaid argument as no doubt the complainant PW 30 Neelam Katara has admitted in her cross examination that her father was a senior police officer in UP, however at the same time she stated that he retired about 16 years back from the police. No suggestion was given to PW 30 that her 1050 father had influenced the investigation. Similarly PW 35 SI Anil Somania was not cross examined to this effect. PW 34 SI JK Gangwar during cross examination of the defence admitted that Sh. AN Paul was the SSP Moradabad during his posting in Moradabad in the year 1971 and he had worked under him during that period. He categorically stated that he had learnt only now Sh. AN Paul is the father of Mrs Neelam Katara, mother of the deceased and he did not know this fact from before. Even no suggestion was given to the witness that the police of Ghaziabad was under his influence which affected the investigation of the present case.
vii) The other argument of the defence counsel that Sh AK Raghav SP Ghaziabad 1051 under the influence of complainant had even gone to Dabra for the arrest of the accused persons in the present case. However, the supervision conducted by Sh AK Raghav SP Ghaziabad does not appear to be on account of the complainant being the daughter of ex. SPP Moradabad but on account of the fact that Sh. DP Yadav, father of accused Vikas Yadav at the time of the incident was the member of the parliament. The allegation of the defence that the investigation was not carried out fairly, in my opinion, is without any substance.
CONDUCT OF THE ACCUSED PERSONS :
i) The argument of the prosecution is that in the present case which is dependent on the 1052 circumstantial evidence the conduct of the accused persons is equally relevant and admissible in evidence. The Spl. PP for State has submitted that the accused persons took false defence of alibi and led false evidence to that effect. It is further submitted that the conduct of the accused persons also influenced the smooth running of the trial. It has already been discussed that the accused persons had taken false plea of alibi that at the relevant time when the deceased was last seen in their company by PW 33 Ajay Katar at Hapur Chungi, they were present at the house of DW 1 Ashok Gandhi. It is also observed above that they had led false evidence to the effect that on that day they had gone to attend the marriage of Shivani Gaur at Diamond Palace in Mercedes car and not in Tata Safari 1053 bearing No. PB 07H 0085. It is also seen from the record that the accused persons made all possible efforts to avoid the appearance of PW 38 Bharti Yadav before the Court, which delayed the proceedings substantially and amounted to interference in the administration of the justice. Ld. prosecutor has drawn my attention towards order sheets dtd. 31.05.03 and 30.07.03 besides the other relevant order sheets regarding the conduct of PW 38 in her non appearing before the Court which had already been discussed above. Ld. Prosecutor has submitted that even witnesses were put under fear and pressure. The order sheet dtd.
31.5.2003 shows that an application has been moved by Ajay Katara on that day to the effect that he was already one gunner but at least two gunners should be provided to him. 1054 In the application he moved on the aforesaid date he alleged that the accused are powerful and had passed criminal record due to which the witness was being pressurised not to appear as a witness and there were threats to his life and property and he feels insecure. The court on his application had issued directions to Director General of Police Lucknow (UP) and Inspt. General of Police, Meerut Zone for taking necessary steps for the security of the witness.
ii) Perusal of the record further shows that on 22/07/2003 PW 33 Ajay Katara moved another application before the Court, wherein he informed that he was being threatened day and night by SI and Inspt of Ghaziabad and a conspiracy was being hatched to implicate him in false cases. He alleged 1055 that on 20.07.2003 he was detained in the PS Vijay Nagar for four hours and was even tortured physically for the reason that he had entangled himself with a big shot who used to help them in their transfers and postings. He also threatened that he would call media person and would flash his photo on the TV so that the people of Ghaziabad and the goons could identify him. It is further alleged that on the next day his photograph was actually shown in the TV News and he was involved in a false case under S.C Act by Saroj Yadav under a conspiracy that he had misbehaved with her and he was also forced to sign on blank papers.
iii) The order sheet dtd. 22.7.03 find reference of the aforesaid application. It is observed that it was a serious matter as the 1056 only witness who had not turned hostile was receiving threats from the police officials. As such the letter was ordered to be issued to the DIG to see that the witness was not harassed by the other police officials. Notice was also issued to the SHO and lady SI Parveen Saxena to appear in person to show cause as to why action should not be taken against them for giving threats to the witness.
iv) On 30.07.2003 both these police officials appeared before the Court and filed their written reply. Alongwith the reply they filed the photocopy of the news cuttings and photo copy of an application made by one Smt Saroj Yadav, President of Mahilla Morcha of Congress. In the application Smt Saroj Yadav had written to SO Vijay Nagar that one person who tells himself Ajay Katara, on the morning 1057 of 20.07.2003 gave beatings to Darvesh Kumar Pancham Silwas and tailor Kishan Singh and also abused and gave threat to kill them. He also misbehaved with with Saroj Yadav and tore her clothes and abused her. It is further observed in the order sheet that PW 33Ajay Katara stated that Saroj Yadav was the relative of Sh. DP Yadav.
v) It is further observed in the order sheet that SO stated that about 800 persons had gathered at his PS when he picked up three persons against whom Mr. Ajay Katara had made a telephonic complaint. It is observed the very fact that 800 persons had gathered and merely three persons were picked up, it was a pre organised show. The complaint of Smt Saroj Yadav also smelled of malafide. The complaint of Ajay Katara 1058 alongwith the reply of the police officials were sent to DIG Meerut Zone for enquiry. It was also made clear by the Court to both the police officials that any harassment to the witness in the grab of the complaints lodged by relatives of DP Singh as well as wishers of the accused persons shall be taken seriously by the Court.
vi) Perusal of the record further shows that on 15.10.2007 and on 29.10.07 against the witness Ajay Katara moved applications against Sh DP Yadav and his henchmen and sought protection to his life and of his family members. In the complaint dtd. 15.10.2007 he categorically mentioned that since after his deposition in the case he was being harassed by Sh DP Yadav and was involved in false cases which lateron scrapped. 1059 It is mentioned in the application that he was being threatened to be crushed under a truck or to be burnt alongwith his family members in brick klin. It was alleged that on 1.6.07 the goons of Sh DP Yadav had fired at him with intention to kill him and thereafter on 11.7.07 he was administered poison in Aloo Tiki by the goons of Sh DP Yadav, regarding which a case was registered with PS Sahibabad, District Ghaziabad and three persons were also arrested in the case. It is also alleged that Sh DP Yadav was looking for an opportunity to kill his wife, son and his parents in law and then falsely implicated Ajay Katara in the case.
vii) He further alleged that on 10.10.07 he came to know that Sh DP Yadav had conducted a press conference in Delhi and 1060 levelled false allegations against the witness due to which he suffered socially, mentally and financially. He further alleged that he was informed by the President Jhola Chaap Dr B K Sharma R/o B 254, Sector11, Vijay Nagar, Ghaziabad belonging to Rashtriya Parivartan Dal about the threats of his life from Sh DP Yadav that he would be killed and then his various parts of the body would cut into pieces and burnt. This application was marked to DIG Meerut Zone for taking necessary action.
viii) In the another application dtd. 29/10/07 he again lodged complaint about threats to his life that eight times attempt was on his life at the instance of Sh DP Yadav and that his wife Tanu Chaudhary and son Priyanshu Katara were under the influence of 1061 Sh DP Yadav and that Sh DP Yadav had threatened to kill his wife, her family members and his son. This application was again sent to the DIG Meerut Zone for investigation and to provide him additional security.
ix) The matter was investigated and the reply was submitted by the DIG Meerut Zone, whereby it was informed that Sh DP Yadav is history sheeter and is involve in 29 criminal cases, out of which 9 cases are U/s 302 IPC. Keeping in view the criminal history of Sh DP Yadav and that attempts were made on the life of Ajay Katara, the provisions were made for the security of the witness.
x) Besides, threatening the witnesses the accused persons also misled the police on 28.2.02 when they took the police to three 1062 places in Alwar for recovery of Tata Safari while they were already aware of the fact that the vehicle was not there. The purpose was only to spend time as only 24 hours were given to the police for effecting recovery. Thereafter again when two days police custody remand was obtained by the IO, the accused persons saw to it that their custody was not handed over to the police of Ghaziabad at Dabra in time and their custody was handed over to Ghaziabad police on 10.3.02 at about 9:30am, whereas the police custody remand was to start from 09.03.02 at 2 pm. This conduct was also to avoid the police from recovery of Tata Safari. Their conduct further reflects from the fact that from Dabra they took the police to Panipat that was again a tactic to spend time but t was only when they 1063 sternly interrogated they led the police party to AB Coltex Karnal and got the same recovered. It is the efficiency of the Ghaziabad police that despite being misled by the accused persons they were able to do their job efficiently and fairly. However for the conduct of the accused persons adverse inference is drawn against him. It provides additional link in the chain of the circumstances proved by the prosecution against the accused persons.
xi) The accused even did not spare Spl. public prosecutors as legal notice were got issued to the earlier public prosecutor Sh. SK Saxena and thereafter to the present Spl. public prosecutor Sh BS Joon, though which were lateron withdrawn with the intervention of the Hon ble High Court of Delhi but it shows that these notices were served upon the 1064 Spl. public prosecutors so as to put pressure upon them not to conduct their case fairly. It is observed in the authority reported in 2007 Crl. LJ 2626 Delhi High Court in case H Syama Sundara Rao Vs Union of India & Others whereby it was held that "Casti ng aspersions and extending threats by issuing notices to the Advocate for the opposite side in pending litigation containing disparaging and derogatory remarks has the effect of deterring an Advocate from conducting his duties towards his client and embarrassing him in the discharge of his duties and thus amounts to contempt of Court on the very same principles which are applicable with regard to the criticism of a Judge or a judgment as in each such instance, the tendency is to 1065 poison the fountain of justice sully the stream of judicial administration, by creating distrust, and pressurizing the advocates as officers of the Court from discharging their professional duties as enjoined upon them towards their clients for protecting their rights and liberties. It is the duty of the Courts to protect the advocate from being cowed down into submission and under pressure of threat of menace from any quarter and thus abandon their clients by withdrawing pleas taken on their behalf or by withdrawing pleas taken on their behalf or by withdrawing from the brief itself, which may prove fatal not only to the legal proceeding in question but also permit an impression to gain ground that adoption of such tactics are permissible or even acceptable. Failure 1066 to deal with such conduct and nip it in the bud shall result in the justice system itself taking a severe knocking, which tendency must be put down as it amounts to direct interference with the administration of justice and is, therefore, a contempt of a serious nature.''
xii) In the present case the issuance of legal notice to both the Spl. public prosecutors casting aspersions on them, in my opinion, infact amounts to deterring the public prosecutors from conducting the case on behalf of the State efficiently and fairly. It also amounted to embarrassment to both the public prosecutors and amounted to interference with the due course of justice. Nodoubt by the order of the Hon'ble High Court of Delhi the notices were withdrawn, 1067 however definitely an attempt was made by the accused persons to put pressure upon the public prosecutors from discharging their professional duties enjoyed upon them towards the State.
xiii) The record also speaks that a transfer petition was filed by the complainant PW 30 Mrs Neelam Katara in the Hon ble Supreme Court of India whereby she had alleged that she would not be getting fair trial in Ghaziabad due to money and muscle power of Sh. DP Yadav and the Apex Court vide order dtd. 23.08.2002 transferred the present case from the Court of District & Sessions Judge Ghaziabad to the Sessions Court in Delhi. It is observed in the order by the Honble Apex Court as follows: 1068 "fr om the narration of facts as well as the materials on record we are of the considered opinion that atmosphere at Ghaziabad is not congenial for continuance of the criminal proceedings and the apprehension of the mother cannot be said to be fanciful one nor can it be said to be unfounded."
xiv) In view of the above discussion the conduct of the accused persons have throughout been to mislead the Court and to put pressure upon the witnesses or to give them temptations so that they did not depose against them before the Court which amounts to an additional link in the chain of circumstances proved by the prosecution against them.
32. It is observed that the murder of Nitish 1069 Katara was an honour killing by the accused persons as they did not like their sister having affair with a boy of different caste and they could never accept her plans to marry him. The motive for Nitish's murder can thus be better understood in the context of socio cultural framework of society where in some sections of society from birth repressive socialisation of girls ensures that they are kept unaware of their rights and are made to play subordinate role to their brothers. It is not digested by the elder male members of the family , particularly, the brothers that a female exercises her right to chose a male partner of her own choice which often leads to shocking and macabre consequences, as it happened in the present case. The murder of deceased Nitish Katara is nothing but the outcome of this prevalent gender bias as Bharti 1070 Yadav had exercised her own discretion in choosing her male partner ie Nitish Katara and was about to execute her plans to marry him which was not to the liking of the accused persons and the result was that a young innocent boy lost his life at their hands.
33. In view of the above discussion the prosecution has proved on record that Nitish and Bharti had love affair and wanted to marry but accused persons, her brothers did not approve her such relationship and on finding an appropriate opportunity in furtherance of their common intention alongwith their coaccused Sukhdev Yadav abducted him from Diamond Palace on the night of 16/2/02 where he was attending the marriage of PW Shivani Gaur from where accused Vishal Yadav on the pretext of talking to him 1071 took him out of Diamond Palace. It is also proved vide positive evidence that the deceased and accused were seen together by PW33 at midnight on 1617/2/02 at Hapur Chungi and thereafter the dead body of the deceased in burnt condition was spotted at Shikarpur Road on 17/2/02 at 9am by PW23 Virender. In view of the circumstances of the case , particularly when accused persons failed to explain as to how and where the deceased parted their company and in view of the false plea of alibi taken by the accused persons , the possibility of any other person being the author of the crime is impossible. Thus, in my view the prosecution has proved beyond reasonable doubt from circumstantial evidence that the accused had abducted the deceased from Diamond Palace on the night of 16/2/02 and thereafter committed his murder. It is also proved 1072 on record that the dead body of unidentified person which was lateron identified to be of Nitish Katara was recovered from Shikarpur Road in burnt condition and the burns were found to be postmortem as deposed by PW3 Dr. Anil Singhal who conducted the postmortem on the dead body. This circumstance leads to the inference that it is the accused persons who after killing Nitish katara burnt his deadbody to cause disappearance of evidence with the intention of screening themselves from legal punishment. In view of the above discussion the prosecution has proved its case beyond reasonable doubt through circumstantial evidence and the facts established through circumstantial evidence are consistent only with the hypothesis of the guilt of the accused persons. There is a complete chain of circumstantial evidence proved on record by the 1073 prosecution which in my opinion has left no ground for the conclusion consistent with the innocence of the accused. The circumstances so proved show that in all human probability the crime was committed by the accused persons. Hence, I hold both the accused Vikas Yadav and Vishal Yadav guilty and convict them for the offences punishable U/s 364/302/201/34 IPC. Announced in Open Court (Ravinder Kaur) Date : 28/5/08 ASJ : New Delhi 1074 IN THE COURT OF MS RAVINDER KAUR, ASJ, NEW DELHI SC No. 78/02 STATE VS 1 VIKAS YADAV S/o Sh. DP Yadav R/o R 4/16, Raj Nagar Ghaziabad (UP).
2 VISHAL YADAV S/o Late Sh Kamal Raj R/o R5/45, Raj Nagar Ghaziabad (UP).
FIR No. 192/02 PS Kavi Nagar, U/s 364/302/201/34 IPC ORDER ON SENTENCE Pr.: Sh. BS Joon, Spl. PP for State Sh. Kaushik Dey, counsel for the complainant. Convict Vikas Yadav in custody with Sh. KN Balgopal and Sh. GK Bharti, advocates. Convict Vishal Yadav in custody with Sh. SK Sharma, adv.
I have heard arguments from the 1075 counsel of both the convicts as well as Spl. PP for State on the point of sentence.
Adv Sh KN Balgopal has submitted that in the present case, the convict Vikas Yadav does not deserve the capital punishment. It is submitted that the convict though was detained under National Security Act, however the Hon'ble High Court of Allahabad had quashed the detention order and the appeal by the Government was also dismissed by the Hon'ble Supreme Court. Regarding the conviction of convict Vikas Yadav in Jessica Lal's murder case, it is submitted that he was convicted U/s 201 IPC for destruction of evidence by the Hon'ble High Court and the appeal is pending before the Hon'ble Supreme Court. It is submitted that there was direct evidence of killing in the Jessica Lal's murder 1076 case but the Hon'ble High Court had only awarded life imprisonment to the main accused Manu Sharma. The defence counsel has referred to judgment of Bachan Singh's case reported in 1980(2) SCC 684 wherein certain mitigating circumstances were suggested by Dr. Chitaley to the Hon'ble Supreme Court to be taken into consideration as to whether the death penalty shall be awarded in a particular case or not . These are the following circumstances suggested by Dr. Chitaley :
1) That the offence was committed under the influence of extreme mental or emotional disturbance.
2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. 1077
4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
6) That the accused acted under the duress or domination of another person.
7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.
The defence counsel has submitted that the mitigating circumstance in the present case in favour of convict Vikas Yadav is that he committed the aforesaid crime under emotional disturbance since the theme of the present case is that the convicts did not like the relationship of their sister with the deceased. The defence 1078 counsel has further cited authorities reported in Alok Nath Dutta Vs State of West Bengal 2006 (13) VI Scale 467 and Amrit Singh Vs State of Punjab reported in AIR 2007 SC Page 132. It is submitted that in both these authorities it was held by the Hon'ble Apex Court that the manner of commission of offence may be gruesome but the method applied cannot be said to be cruel. The defence counsel has also cited an authority reported in AIR 2007 SC 848 Bishnu Prasad Sinha Vs State of Assam whereby a 7 / 8 year old girl who was traveling alongwith her parents and her younger brother in a private transport service on their way to Dimapur in the state of Nagaland, they reached Network Travels Complex at Paltan Bazaar Guwahati at around 10:30pm on 12/7/02. There was no connecting bus to Dimapur at that time, so they were advised to stay over for the 1079 night at Guwahati. Appellant No. 1 was a night chowkidar of the waiting room of the said Network Travels. He represented that he could stay there for the night and should not have any apprehension of their safety. At night they all slept and at around 3am Aniba Deb woke up as her son cried and she found that her daughter was missing. The matter was reported to the police. The flush in the toilet was found not working and the sweeper Amardeep was asked to found out the reason and when he opened the septic tank he saw the head of the small child. Lateron during investigation, the appellant No. 1 made confessional statement before the Magistrate U/s 164 Cr.PC about lifting of the girl, committing rape and then murdering her. Since there was no eye witness the case was based on circumstantial evidence. The Hon'ble Apex Court held that it 1080 was not a case where extreme death penalty should be imposed.
The defence counsel has submitted that in the present case also the convicts do not deserve extreme death penalty as the murder was not committed in a brutal or diabolic manner as there was only one blow with a hammer on the skull of the deceased which as per the postmortem report was sufficient to cause death in the ordinary course of nature. Regarding the burns on the dead body it is submitted that these were postmortem burns and the deceased was not burnt alive. It is further submitted that convict Vikas Yadav is MBA and a qualified engineer, recently engaged and had a future. It is further submitted that the present case do not fall within the category of rarest of rare cases to invite extreme death penalty.
1081
Adv SK Sharma, the counsel for convict Vishal Yadav has adopted the arguments of Sh. KN Balgopal, counsel for convict Vikas Yadav.
On the other hand Ld. APP has submitted that convict Vikas Yadav was involved in 3 cases before his involvement in the present case. The first case was registered against him Us 302 IPC in the year 1991 but the same was withdrawn by the prosecution in the year 1994 when his father was Minister. The other case in which he was involved in the year 1999 was Jessica Lal's case wherein he was convicted U/s 201 IPC and while he was on bail in that case, the present case was registered against him. It is further submitted that one case under Arms Act within the jurisdiction of Dabra MP is also pending against him. It is submitted that convict Vishal is facing trial under Arms Act at Dabra MP. 2 cases were registered 1082 against him in the year 2000 ie U/s 279/337 IPC and another U/s 61 Punjab Excise Act. It is submitted that the argument of the defence counsel that the offence was committed by the convicts on account of emotional disturbance is not tenable and that if it was so then why did they spare Bharti Yadav. It is submitted that if the convicts are useful to society whether the deceased was not useful to the society and did not have any future or was not qualified. Ld. Spl. PP has submitted that both the convicts deserve extreme penalty of death in the present case and has relied upon authority reported in AIR 1983 SCC 470 Machi Singh Vs State of Punjab whereby it was held that in the rarest of the rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty 1083 irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
2) When the murder is committed for a motive which evinces total depravity and meanness; eg murder by hired assassin for money or reward;
or coldblooded murder for gains of a person visavis whom the murderer is in a dominating position or in a position of trust; or murder is committed int eh course for betrayal of the motherland.
3) When murder of a member of a Scheduled Caste or minority community etc, is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is 1084 committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all them members of a family or a large number of persons of a particular caste, community, or locality, are committed.
5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person visavis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
The prosecution has submitted that the present case falls within the 1st and 2nd circumstance as laid down in the authority reported above. The prosecution has also relied upon the authority State Vs Sushil Sharma reported in 2007 Vo.l II AD (CR) (DHC) 289 where the deceased Naina Sahni after being killed in 1085 gruesome manner, bullets were noticed embedded in her skull and neck region and was thereafter burnt in a Tandoor. It is claimed that in this case also appellant was given death penalty on the ground that the act of the appellant reflected extreme depravity when he killed Naina Sahni and dealt with her body in a gruesome manner which must have shocked the conscience of the community at large. The prosecution has further relied upon the authority reported in 1999 SCC Page 581 wherein the two convicted accused had after raping and murdering one girl had thrown her dead body into a septic tank. This postcrime conduct of the convicts was commented upon by the Hon'ble Supreme Court in these words ''the accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank 1086 totally disregarding the respect for a human body''. The Spl. PP for State has prayed that both the accused deserve extreme penalty of death.
After hearing the submissions of both the parties I have gone through the relevant authorities cited by both the parties. The relevant authorities are Bachan Singhs reported in AIR 1980 SC 898 and Machi Singhs 1983 (3) SCC 470 and the latest authority of the Hon'ble Apex Court bishnu Prasad Singh Vs State of Assam AIR 2007 SC 848 whereby the principles have been laid down as to in what circumstances the death penalty should be resorted to. As argued by Spl. PP for State that out of the 5 circumstances laid down in the case of Machi Singh vs State of Punjab referred above, circumstance No. 1 and 2 are applicable to the facts and circumstance of the present case, I have carefully gone through 1087 these circumstances.
The circumstance No. 1 is the manner of commission of murder. It is held that when a murder is committed in an extremely brutal, grotesque, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation to the community for instance :
1) When the house of the victim is set aflame with the end in view to roast him alive in the house.
2) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
3) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
Similarly, the other circumstance ie motive for commission of murder is explained in the following manner :
''when the murder is committed for a motive 1088 which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward; (b) a coldblooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis avis whom the murderer is in a dominating position or in a position of trust; (c) a murder is committed in the course of betrayal of the motherland.
As held in the Machi Singh Vs State of Punjab the following questions may be asked and answered to determine the rarest of rare case in which death sentence can be inflicted:
(a) is there something about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) are the circumstances of crime such that there are no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of 1089 the offender.
It is held that life imprisonment is a rule and death is an exception. Death sentence must be imposed only when the life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime. In Bishnu Prasad's case where the girl was raped and murdered and then her dead body was thrown in the septic tank it was held by the Hon'ble Supreme Court that it was not a case where extreme death penalty should be imposed.
In view of the above discussion, in my opinion the present case do not fall within the ambit of any of the circumstances as laid down in the case of Machi Singh Vs State of Punjab to award extreme penalty of death to the convicts. The postmortem report speaks of only single 1090 injury on the skull of the deceased which is proved to have been caused by hammer Ex.P1 which in my opinion cannot be termed as a murder in a brutal or diabolical manner. I cannot loose sight of the fact that there were 3 accused persons but only one injury is found on the person of the deceased ie on his skull which was the cause of his death which in my opinion is a great mitigating circumstance in favour of the convicts. Besides, the destruction of evidence by the convicts after the murder of the deceased, by burning his dead body, in my opinion is a separate offence U/s 201 IPC and it does not invite the extreme penalty of death. Moreover, in my opinion it is not the death penalty which is deterred in which a person is hanged to death in few seconds, to the contrary it is the life imprisonment which is deterred wherein the 1091 convict dies every moment in the Jail. In the present case, in my opinion it would meet the ends of justice if the convicts are awarded life imprisonment.
Hence, both the convicts are awarded life imprisonment and sentenced to pay a fine of Rs. 1 lakh each U/s 302/34 IPC in default each to undergo 1 year SI.
Both the convicts are further sentenced to RI for 10 years and fine of Rs. 50,000/ each U/s 364/34 IPC in default each to under SI for 6 months.
Both the convicts are further sentenced to RI for 5 years and to pay a fine of Rs. 10,000/ each U/s 201 /34 IPC in default each to undergo SI for 3 months .
All the sentences shall run concurrently. File be consigned to RR.
Announced in Open Court (Ravinder Kaur) Date : 30/5/08 ASJ : New Delhi