Delhi District Court
State vs Pawan Kumar Gupta on 20 March, 2024
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01):
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
SC No. 326/2017
STATE Vs Pawan Kumar Gupta & Ors.
FIR No.: 94/2017
U/S 302/379/411 IPC
PS : Badarpur
Particulars of the case
1. Date of offence : 01-02.03.2017 & 06.01.2018
2.Offence complained of : u/s 302/379 IPC
3.Name of the complainant : Sh. Attar Singh
4. Name of the accused no.1 : Pawan Kumar Gupta
his parentage s/o Shri Niwas,
his residential address R/o: Village & PS Naya Gaon,
Teh-Aliganj, District Etah, UP
Name of accused no.2 : Sanjay Babu
his parentage s/o Sh. Shiv Nadan Singh,
his residential address R/o: Village Navada,
PS Malavan, District Etah,
U.P.
(already acquitted by compounding
vide order dt. 02.05.2023)
5. Plea of accused : Pleaded not guilty
6.Final order : Accused no.1 convicted u/s 302/379
IPC
Date of Institution : 08.08.2017
Date of Judgment reserved on : 20.02.2024
Date of Judgment : 20.03.2024
Ld. Addl PP for State : Sh. Ashok Debbarma
Ld. Legal Aid Counsel for accused
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 1 of 53
FIR No. 94/2017
Pawan Kumar Gupta : Sh. Ramesh Rawat
JUDGMENT
1. CHARGESHEET 1.01 As per the charge-sheet, on 02.03.2017 on receipt of DD No.21A SI Mohd. Kafeel along with Ct. Ramesh, Inspector Hoti Lal with beat constables reached at the spot i.e. Gali no.26, Khajoor wala Road Molarband Extension, Badarpur, New Delhi where they met one person who revealed his name as Attar Singh and told that his son Umesh Kumar has been murdered. Thereafter Inspector along with SI reached at house no. 17, gali no.26A, Molarband where one dead body of Umesh Kumar was lying in a room. On inspection, injury mark was found on the back side head of deceased Umesh due to which lot of blood was lying on the floor. Pieces of glasses were also found scattered therein and one black colour hawai slipper was also found there. Patches of blood were also found on the wall as well as on the bed of the room.
1.02 Statement of compainant Attar Singh was recorded wherein he stated that he resides at Molarband, Badarpur, Delhi along with his family and worked in NTPC but now he is retired and remains at his house. He had three sons, two married and one unmarried. His elder Son Umesh used to look after the affairs of the family. He had another house in the same area i.e house no.17, gali no.26A, Molarband Extension, Badarpur, New Delhi where construction work was going on and same was being looked after by his elder son Umesh Kumar. Umesh had kept one room of said house where he usually used to sleep in night. In the same house, he had SC No. 326/2017 State v. Pawan Kumar Gupta Pages 2 of 53 FIR No. 94/2017 given one room on rent to Pawan Kumar Gupta for the last one year wherein said Pawan Kumar Gupta used to reside along with his family. Around one month ago, his son Umesh and his tenant had a quarrel over some issue but later on same was settled between them. Thereafter, Pawan Kumar Gupta threatened his son to kill him if his son either asked him to vacate the room or settle his dues.
On 01.03.2017, as usual, his son slept in the room at house no. 17 and in the night time, on getting a chance, his tenant Pawan Kumar Gupta killed his son after causing injuries to him and thereafter fled from there along with his family after stealing his son's motorcycle Passion Pro bearing registeration no. DL 3S CL 2727 of black colour. His son had been killed by his tenant Pawan Kumar Gupta and he should be punished for his acts.
1.03 On complainant's statement, case was got registered against the accused Pawan Kumar Gupta u/s 302/379 IPC. Crime team was called at the spot which inspected the spot and clicked photographs of the spot. Crime team official lifted blood from the scene of crime i.e. blood from floor and wall. Same was seized by the police. Crime team report was obtained. Photographs of spot were also taken by a private mobile phone. Dead body of deceased Umesh was shifted to AIIMS hospital in ERV vehicle. In MLC, doctor declared him 'brought dead' and dead body was kept in the mortuary of AIIMS hospital. Inspector collected the blood stained exhibits/neutral exhibits from the crime scene. Inspector also seized one black colour hawai slipper on which aqualite was written. Thereafter, abovementioned seized articles were deposited in the malkhana of police station. Site plan was prepared at SC No. 326/2017 State v. Pawan Kumar Gupta Pages 3 of 53 FIR No. 94/2017 the instance of complainant and statement of witnesses were also recorded.
1.04 Thereafter, the autopsy of the dead body was got conducted and the exhibits regarding the viscera were seized. Said exhibits were deposited in the malkhana and statement of witnesses were recorded. 1.05 During investigation SI B. D. Meena along with his staff was sent to Eta, UP to trace accused. It came to be known that accused Pawan Kumar Gupta had surrendered himself in case FIR No. 202/2003, u/s 8/22 NDPS Act of PS Raqab Ganj, Agra UP in the court of Ld. ACJM-12 Agra Court. On 07.03.2017 SI B. D. Meena moved an application for obtaining production warrants of accused from ACMM Court of Saket and ultimately on 18.03.2017 accused Pawan Kumar Gupta was produced by UP police before Ld. ACMM, Saket. SI B. D. Meena along with his staff also reached there, sought permission for interrogation and arrest of accused. Thereafter, disclosure statement of accused was recorded and he was arrested. SI B. D. Meena moved an application for PC remand of said accused but accused was remanded to judicial custody till 01.04.2017 and during J/C, one day PC remand of said accused was allowed. Thereafter, further investigation of the case was handed over to the Inspector. 1.06 During investigation, Inspector Hoti Lal obtained the PCR form. On 23.03.2017 SI B. D. Meena along with staff reached Rohini Jail for obtaining one day PC remand of accused, took accused to police station and produced him before the Inspector. Inspector and SI B. D. Meena along with his staff and accused departed for searching motorcycle splendor PRO No. DL 3SCL 2727 as well as deceased Umesh' mobile phone and his RC. They went to Galgotiya University SC No. 326/2017 State v. Pawan Kumar Gupta Pages 4 of 53 FIR No. 94/2017 prior to Pari Chowk, Noida, UP wherein accused pointed out the space between two bushes near the wall of said university and stated that after parking the motorcycle between two bushes and after throwing deceased's mobile phone and RC of his motorcycle in the bushes, he took private vehicle from Pari Chowk and went to his village. 1.07 Neither motorcycle was found at the spot nor mobile phone of deceased was recovered from the bushes. However, RC of above mentioned motorcycle in deceased's name was recovered from the bushes and same was seized. Site plan of recovery was prepared and investigation was done regarding motorcycle at police station Knowledge Park, Gautam Budh Nagar, UP but no information was received from the nearby police stations. Even wireless messages were conveyed regarding the motorcycle but no clue was found. 1.08 On 24.03.2017 accused Pawan Kumar led the Inspector Hoti lal and the police staff to spot of occurrence, i.e. house no.17, gali no.24A, Molarband Extension, Badarpur, New Delhi wherein at the room on the ground floor, he pointed towards the open space between the bed and the wall and stated that on 01.03.2017 at about 10.00 pm he killed his landlord Umesh Kumar in a drunken condition by hitting him, with a brick lying in the room, on his chest. His left leg slipper was also left on the bed in the room. He was in a drunken condition and in a hurry so he do not know where he had thrown the slipper of his right leg. After leaving blood stained brick at the spot he fled from there on Umesh's motorcycle parked outside the room. Pointing out memo of spot was prepared. After medical examination of accused, SI B. D. Meena handed over the accused to Jail superintendent at Rohini Jail.
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 5 of 53 FIR No. 94/2017 1.09 During investigation, post mortem report of deceased was obtained. On 07.04.2017 draftsman reached at the spot, inspected the spot and prepared the site plan. Further, on 10.04.2017 all exhibits of the present case were deposited in FSL, Rohini. 1.10 After seeking permission from Ld. ACMM Court for obtaining blood sample of accused, accused was taken from Rohini Jail to AIIMS Hospital on 21.04.2017. After obtaining blood sample and sample seal, ASI Yashpal reached at PS and produced the same before Inspector Hoti Lal who seized the same. Thereafter, on 26.04.2017 after preparing FSL letter, the blood sample of accused and nail clippings of deceased were deposited in FSL Rohini. 1.11 During investigation, Inspector Hoti Lal also obtained the details of CAF/CDR of mobile phone of deceased Umesh Kumar as well as accused Pawan Kumar Gupta. For searching the motorcycle bearing no. DL 3SCL 2727 wireless messages were conveyed and information was also sent to NCRB, SCRB and even transport authority was informed through letter but no clue could be found regarding the motorcycle or even the mobile phone of deceased. 1.12 After aforesaid investigation, IO/Inspector Hoti Lal filed the main chargesheet u/s 302/379 IPC against the accused Pawan Kumar Gupta.
1.13 Subsequently, 1st supplementary chargesheet was filed along with forensic examination reports of viscera of the deceased and the nail clippings of deceased and the blood sample of accused. 1.14 Thereafter, 2nd supplementary chargesheet was filed regarding the report of forensic examination of the exhibits lifted from the crime scene. As per said chargesheet, the stolen phone had been recovered SC No. 326/2017 State v. Pawan Kumar Gupta Pages 6 of 53 FIR No. 94/2017 and its certified CDR and CAF was being obtained. The stolen motorcycle was still untraceable.
1.15 Further, 3rd supplementary chargesheet was filed after receiving CDR details and CAF of mobile phone no. 9818371341 of deceased Umesh.
During investigation, it was found that IMEI number of mobile of deceased Umesh was operational with mobile no.9557298266 from 20th October, 2017 to 15th December, 2017 in the name of Rajender Singh. Said Rajender Singh was also inquired who told that said phone mobile belongs to his brother Pushpender. Said Pushpender was also inquired who told that he purchased the said phone from one Sanjay Babu around 15th October by giving him his old mobile phone and even cash amount of Rs.2300/- and he further told him that same belongs to him. But since December the said phone was not working properly so he took back his phone and returned i-phone to Sanjay Babu. CDR details of mobile number 9557298266 were obtained.
On 06.01.2018 accused Sanjay Babu was inquired and on inquiry he stated that Pawan Kumar Gupta was his friend and on 02.03.2017 Pawan Kumar Gupta telephoned him from his phone no. 7042006450 on his mobile number 9756559069 stating that he had a quarrel in Delhi and he needed some money. But when he refused to give him money then accused Pawan Kumar Gupta stated that he had stolen one mobile phone in said quarrel and wanted money in lieu of the same. On persistent request of Pawan Kumar Gupta, he purchased the said stolen phone from him for an amount of Rs.2,000/-. He knew that said phone was a stolen one so he did not operate the same for many months. Thereafter, he sold the said mobile phone to his friend SC No. 326/2017 State v. Pawan Kumar Gupta Pages 7 of 53 FIR No. 94/2017 Pushpender. As the said phone was not working properly so his friend Pushpender returned the same to him. Said phone was seized.
CDR details and CAF of mobile phone 9756559069 of accused Sanjay Babu as well as CAF of mobile number 7042006450 of accused Pawan Kumar Gupta were obtained and on their examination, it was found that on 02.03.2017 accused Pawan Kumar Gupta talked twice to Sanjay Babu and same shows that Pawan Kumar Gupta met Sanjay Babu after telephoning him and sold the phone to him and the said phone was got recovered from Sanjay Babu. As Sanjay Babu was having a permanent address and he cooperated in investigation, got the stolen phone recovered and had committed offence u/s 411 IPC only and was not having any previous criminal record, he was not arrested in the present case. Supplementary chargesheet was accordingly filed keeping accused Sanjay Babu in column no.11 and Pushpender Kumar in column no.12.
However, only co-accused Sanjay Babu was summoned on the basis of said supplementary chargesheet.
2. CHARGE 2.1 On the basis of the charge-sheet, charge u/s 302/379 IPC was framed against the accused Pawan Kumar Gupta and charge u/s 411 IPC was framed against the accused Sanjay Babu. Both accused pleaded not guilty to the said charges and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge- sheet. However, during trial, matter was compounded between the LRs of deceased and the accused Sanjay Babu and therefore he was acquitted of the offence charged against him u/s 411 IPC by SC No. 326/2017 State v. Pawan Kumar Gupta Pages 8 of 53 FIR No. 94/2017 compounding vide order dt. 02.05.2023. Hence, the present judgment is only against the main accused Pawan Kumar Gupta.
3. PROSECUTION EVIDENCE 3.01 In support of its case, prosecution has examined 29 witnesses.
S. No. Name of the Nature of the evidence witnesses PW-1 Attar Singh Complainant/father of deceased PW-2 Dr. Lingaraj Sahoo FSL expert who examined the viscera of deceased Umesh PW-3 Ravinder Relative of deceased/witness to circumstantial facts i.e taking of tiffin for deceased Umesh by accused from the house of deceased PW-4 Devender Kumar Friend of the deceased/witness to circumstantial facts i.e. last seen evidence PW-5 HC Rakkam Singh Police official who prepared crime team inspection report PW-6 ASI Yash Pal Singh Police official who witnessed the seizing of blood sample of accused Pawan Kumar Gupta by the IO PW-7 Saurabh Pathak FSL expert who examined the case exhibits for tracing blood/DNA SC No. 326/2017 State v. Pawan Kumar Gupta Pages 9 of 53 FIR No. 94/2017 PW-8 Surender Kumar Nodal Officer, Bharti Airtel who proved CDR, CAF, call details of mobile phone nos.8130207780 (Sandhya wife of accused), 7042066450, 9818371341 (deceased Umesh) for the period from 25.02.2017 to 05.03.2017 as well as cell ID chart regarding the location of the calls He also identified the signatures of Chander Shekhar Tiwari, the then Nodal Officer of Bharti Airtel Limited and even CAF/CDR details and certificate u/s 65B IEA pertaining to mobile no. 9557298266 (Rajendra Singh) for the period from 20.10.2017 to 27.02.2018. PW-9 Pawan Singh Nodal Officer, who proved CDR of mobile no. 9990626737 (deceased Umesh Kumar) for the period from 25.02.2017 to 05.03.2017 and the cell ID chart Ex.PW-10 SI Mohd. Kafeel Police Official who on receipt of a call vide DD No.21A reached at the spot and recorded the statement of complainant and participted in the initial investigation therein SC No. 326/2017 State v. Pawan Kumar Gupta Pages 10 of 53 FIR No. 94/2017 PW-11 Dr. Abhineeth K. P. Doctor who identified the signatures of Dr. Reepu Rana on the MLC of deceased Umesh PW-12 Ct. Puneet Photographer, Mobile Crime Team, South East who clicked photographs of scene of crime PW-13 Ct. Govinda Police Official who got conducted the autopsy of deceased. He also participated in the court arrest of accused on his production from Agra Jail and was part of the police team who got recovered the RC of the stolen motorcycle. PW-14 HC Sunil Yadav Duty Officer who got registered the present case FIR PW-15 Ct. Mohit Rana Police Official who proved the PCR call record regarding murder of one person at Badarpur PW-16 Dr. Deepak Prakash Doctor who along with Dr. Shinto Devassy conducted the autopsy of the decased Umesh PW17 Dr. Shinto Devassy Ditto PW18 Inspector Mukesh Draftsman who prepared scaled site Kumar Jain plan of the spot SC No. 326/2017 State v. Pawan Kumar Gupta Pages 11 of 53 FIR No. 94/2017 PW19 Ct. Mukesh Police Official who joined investigation with IO whereby accused pointed out the place of occurrence PW20 SI B. D. Meena Police Official who arrested the accused on his production from Agra Jail and further recovered the RC of motorycle at the instance of accused PW21 Ct. Amrender Police official who deposited the viscera exhibits to FSL PW22 Ct. Tinku Yadav Witness regarding arrest of accused at Saket Court PW23 Ct. Sanjay Kumar Witness regarding pointing out memo of the spot by the accused PW24 HC Anil Kumar Police Official who deposited sealed case property to FSL for examination PW25* Retired Inspector IO of the case Hoti Lal PW26 Rajender Singh Owner of SIM bearing no. 9557298266 SC No. 326/2017 State v. Pawan Kumar Gupta Pages 12 of 53 FIR No. 94/2017 PW27 Pawan Kumar, Nodal Officer, who proved Nodal Officer, CAF/CDR details of mobile no. Vodafone Idea 9756559069 (Sanjay Babu) and Limited 9990626737 (deceased Umesh) for the period from 25.02.2017 to 05.03.2017, CAF/CDR details of mobile no. 7902195687 (wife of Sanjay Babu) for the period from 22.10.2017 to 09.02.2018 PW28 Inspector Rajiv Witness regarding production of stolen Iphone by Sanjay Babu in police station and its seizure by the IO PW29 ASI Bhup Singh Ditto
It may be noted that though 29 witnesses have been examined by the prosecution but examination of the IO i.e. PW25 Retired Inspector Hoti Lal could not be completed as he passed away during the trial. Accordingly, his testmony cannot be read in favour of prosecution.
3.02 The prosecution has exhibited following documents/objects in support of its case:-
No.of exhibit Nature of exhibit
Ex.PW1/A Complaint
Ex.PW2/A FSL report regarding examination of viscera
of deceased Umesh
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 13 of 53
FIR No. 94/2017
Ex.PW5/A Seizure memo of the blood lifted from the
wall and floor of the spot of incident
Ex.PW5/B Crime team inspection report
Ex.PW6/A Seizure memo of blood sample of accused
Pawan Kumar Gupta
Ex.PW7/A FSL Expert Report regarding DNA
examination of case exhibits
Ex.PW8/A Customer application form of applicant
Umesh for obtaining mobile no.
9818371341
Ex.PW8/B Aadhar card of applicant Umesh for
obtaining above mentioned mobile number
Ex.PW8/C Call details of above mentioned mobile
number for the period from 25.02.2017 to
05.03.2017
Ex.PW8/D Customer application form of applicant
Sandhya for obtaining mobile no.
8130207780
Ex.PW8/E Aadhar card of applicant Sandhya for
obtaining above mentioned mobile number
Ex.PW8/F Call details of above mentioned mobile
number for the period from 25.02.2017 to
05.03.2017
Ex.PW8/G Customer Application Form of applicant Ms.
Kanwal Golaknath for obtaining mobile no.
7042066450
Ex.PW8/H Driving License of applicant Ms. Kanwal
Golaknath for obtaining above mentioned
mobile number
Ex.PW8/I Call details of above mentioned mobile
number for the period from 25.02.2017 to
05.03.2017
Ex.PW8/J Cell ID chart of Airtel towers
Ex.PW8/K Certificate u/s 65B of Indian Evidence Act
regarding CDRs
Ex.PW8/L (colly) Customer Application Form along with copy of aadhar card of applicant Umesh for obtaining mobile no.9818371341 Ex.PW8/L1 CDR of above mentioned mobile number for the period from 26.02.2017 to 05.03.2017 SC No. 326/2017 State v. Pawan Kumar Gupta Pages 14 of 53 FIR No. 94/2017 Ex.PW8/M (colly) Customer Application Form along with copy of aadhar card of applicant Sandhya for obtaining mobile no.8130207780 Ex.PW8/M1 CDR of above mentioned mobile number for the period from 26.02.2017 to 05.03.2017 Ex.PW8/N (colly) Customer Application Form along with copy of aadhar card of applicant Sandhya for obtaining mobile no. 7042006450 Ex.PW8/N1 CDR of above mentioned mobile number for the period from 26.02.2017 to 05.03.2017 Ex.PW8/O Cell ID chart of the above mentioned mobile numbers Ex.PW8/P Certificate u/s 65B of IEA regarding CDRs Ex.PW8/Q CAF of mobile number 9557298266 Ex.PW8/Q1 (colly) CDR of above mentioned mobile number for the period from 20.10.2017 to 27.02.2018 Ex.PW8/Q2 Certificate u/s 65B of IEA regarding the CDRs Ex.PW9/A CDR pertaining to mobile no. 9990626737 for the period from 25.02.2017 to 05.03.2017 Ex.PW9/B CAF of subscriber of said above mobile phone number Ex.PW9/C (colly) Cell ID chart of the company Ex.PW9/D Certificate u/s 65B IEA regarding the CDRs Ex.PW10/A DD No.21A dated 02.03.2017 regarding murder of a man Ex.PW10/B Seizure memo of exhibits lifted from the scene of crime Ex.PW10/C Seizure memo of key having a thread Ex.PW10/D Seizure memo of earth control from the scene of crime Ex.PW10/E Seizure memo of blood stained rectangle shaped mattress Ex.PW10/F Seizure memo of one piece of hawai chappal having blood stains Ex.PW10/G Seizure memo of a blood stained bed sheet Ex.PW10/H Seizure memo of black coloured specs having blood stains SC No. 326/2017 State v. Pawan Kumar Gupta Pages 15 of 53 FIR No. 94/2017 Ex.PW10/I Seizure memo of tumbler (glass, soda bottle and bottle containing liquor) Ex.PW10/J Seizure memo of exhibits pertaining to the deceased Ex.PW10/K1 to Photographs taken from the scene of crime Ex.PW10/K26 Ex.P1 Case property i.e. one brick in peculiar shape having brown stain Ex.P2 (colly) Case property i.e. a black colour thread having locket of OM and a key in pink color plastic thread having word "special and India" written on its sides Ex.P3 Case property i.e. one dark brown color mattress having blackish stains Ex.P4 Case property i.e. a piece of slipper of left foot having aqualite written on it Ex.P5 One creamish and pink colour bed sheet having brown stains Ex.P6 One black coloured specs frame having brown stain Ex.P7 (Colly) One half bottle of liquor of Denim Special Whisky brand filled with one third bottle liquor, one soda bottle of McDowel filled with half bottle soda and one glass in broken condition Ex.PW11/A MLC of deceased Umesh Ex.PW11/B Casualty card prepared qua said MLC Ex.PW12/A1 to Photographs of scene of crime Ex.PW12/A16 Ex.PW12/A16 to Negatives of above mentioned photographs Ex.PW12/A32 Ex.PW13/A Disclosure statement of accused Ex.PW13/B Seizure memo of RC of the passion motorcycle belonging to deceased Ex.PW13/C RC of Passion motorcycle of deceased Ex.PW14/A Endorsement on rukka Ex.PW14/B FIR Ex.PW14/C Certificate u/s 65B of IEA qua the said FIR SC No. 326/2017 State v. Pawan Kumar Gupta Pages 16 of 53 FIR No. 94/2017 Ex.PW15/A PCR call record Ex.PW16/A Post mortem report of deceased Umesh Ex.PW18/A Scaled Site plan of the spot Ex.PW19/A Pointing out memo of the place of incident prepared at the instance of accused Ex.PW20/A Arrest memo of accused Ex.PW20/B Personal search memo of accused Ex.PW20/C RC of the motorcycle recovered at the instance of accused Ex.PW25/A Site plan of the spot Ex.PW27/A CDR of mobile no. 9756559069 Ex.PW27/B CDR of mobile no.9990626737 Ex.PW27/C Certificate u/s 65B IEA regarding the CDRs Ex.PW27/D Information regarding fire break out in building used by Idea Cellular Limited as warehouse and hence destruction of originals of the CAF of above mentioned mobile numbers.
Ex.PW27/E Fire report
Ex.PW27/F CAF of mobile no. 9756559069
Ex.PW27/G CAF of mobile no. 9990626737
Ex.PW27/H CDR of mobile no. 7902195687 for the
period from 22.10.2017 till 09.02.2018
Ex.PW27/I CAF of above mentined mobile number
Ex.PW27/J Certificate u/s 65B IEA regarding the above
mentioned CDR
Ex.PW28/P1 Seizure memo of one Iphone having IMEI
no. 358549056356220
Ex.PW28/MO1 Iphone having IMEI no. 358549056356227 Ex.AX1 and Biological FSL report bearing no.
Ex.AX2 (admitted FSL2017/2641 bio no.753/17 and serologial by accused u/s 294 report of said exhibits, both dated CrPC r/w 58 Indian 11.10.2017 prepared by Suresh Kumar Evidence Act) Singla, Chemical Examiner (Biology) SC No. 326/2017 State v. Pawan Kumar Gupta Pages 17 of 53 FIR No. 94/2017 3.03 Though 29 witnesses have been examined by prosecution but the main witnesses of the case are:
i. PW-1 Attar Singh, complainant/father of deceased, ii. PW-3 Ravinder, Relative of deceased/witness to circumstantial facts, iii. PW-4 Devender Kumar, friend of the deceased/witness to circumstantial facts, iv. PW-8, Surender, Nodal Officer, Bharti Airtel, witness regarding electronic evidence, v. PW-9 Pawan Singh, Nodal Officer, Vodafone, witness regarding electronic evidence, vi. PW-10 SI Mohd Kafeel, witness to circumstances at the spot after murder and participant in initial investigation, vii. PW-16 Dr. Deepak Prakash, who conducted the autopsy of the decased Umesh, viii. PW-20 SI B. D. Meena, police official who arrested the accused on his production from Agra Jail and further recovered the RC of motorcycle at the instance of accused, ix. PW-27 Pawan Kumar, Nodal Officer, Vodafone Idea Limited, witness regarding electronic evidence and x. PW28 Inspector Rajiv, Witness regarding production of stolen Iphone by Sanjay Babu in police station and its seizure by the IO.
3.04 PW-1 Attar Singh, complainant of the case deposed that he was a retired employee from NTPC. He had three sons and one SC No. 326/2017 State v. Pawan Kumar Gupta Pages 18 of 53 FIR No. 94/2017 daughter. His daughter was married off. His elder son namely Mukesh used to look after the affairs of the family and also used to look after the buffaloes. His another house situated at gali no.26, Molarband Extension was being constructed by his son Umesh and in the said house, he had kept some tenant. Due to construction work in the said house, other tenants had vacated the house but accused Pawan Kumar Gupta was staying in one room which was not demolished.
He was residing in a one room set with his family which included his wife and children.
On 18.01.2017 there was a quarrel between his son Umesh Kumar and the accused but he do not know what was the issue for the said quarrel and later on, they settled the dispute.
About 8-9 months ago, one morning, one labour working in the construction work in the house came to him and told that his son namely Umesh Kumar was lying and perhaps he had taken too much alcohol. He reached at his house in gali no.26A, Molarband and found his son was lying on the ground at the ground floor and he was bleeding from the back portion of his head and he also noticed lot of blood on the wall nearby. He made a call to the police. Police examined the scene of crime and prepared rough sketch of the scene of crime in his presence. Dead body was sent to the hospital.
His statement Ex.PW1/A was recorded by the police. He found some brick bats lying in the room where his son was found and same were taken by the police.
Post mortem of the dead body of his son was conducted and he identified dead body of his son before post mortem and same was received by him after post mortem examination.
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 19 of 53 FIR No. 94/2017 The mobile phone of the deceased and his motorcycle bearing no. 2727 was found missing from the house. The accused was not found present in his room. His family members were also not available at his room since the two days prior to the incident.
Leading questions were put to the witness by Ld. Addl. PP for State wherein he admitted that his son Umesh used to stay in the under construction house in the night occasionally. He further admitted that he told the police that once accused Pawan Kumar Gupta threatened to kill his son Umesh Kumar. He further admitted that he also stated to the police that his son Umesh Kumar had asked accused Pawan Kumar Gupta to vacate the house and in the night of 01.03.2017 his son had stayed overnight in the under construction house. He admitted that police had lifted blood, blood stained cushion, bed sheet etc. from the room during investigation at the same room. He do not know if specs of his son were also lifted by the police from the said room and he also cannot identify the specs of his son. He admitted that due to his age and being not very educated, he had not be able to recollect the dates and various instances of the case. He admitted that he made allegation against accused for being responsible for the death of his son.
During his testimony, PW1 identified the accused in the court.
PW1 was duly cross examined by Legal Aid Counsel for accused.
3.05 PW-3 Ravinder deposed that on 01.03.2017 he had gone to meet his uncle Attar Singh at his house i.e. house no. 6, gali no.23, Molarband Extension, Badarpur, New Delhi where he met Attar SC No. 326/2017 State v. Pawan Kumar Gupta Pages 20 of 53 FIR No. 94/2017 Singh, his wife and his children. At about 09.00 pm while he was present in the house, accused came to take food for Umesh (son of Attar Singh) as some construction was going on in another house i.e. house no. 17, gali no.26, Molarband Extension and he handed over the tiffin box to accused. Thereafter, he returned to his village. Next day, he came to know that Umesh had been murdered but he do not know who committed his murder. Police made inquiry from him on 03.03.2017 and he suspected Pawan Kumar Gupta being responsible for the death of Umesh.
During his testimony, PW3 identified the accused in the court.
PW3 was duly cross examined by Legal Aid Counsel for accused.
3.06 PW-4 Devender Kumar deposed that Umesh Kumar was his friend. He was residing in Molarband Extension and he used to visit him frequently. Umesh was getting his house constructed in gali no.26A, house no.17, Molarband Extension.
On 01.03.2017 at about 06.00 pm he met Umesh at his house in gali no.26A where construction was going on. Accused Pawan Kumar Gupta was playing cards with Umesh and he was a tenant in the house of Umesh at house no. 17, gali no.26A, Molarband Extension. He joined them and stayed with them for 30-45 minutes and they were planning to consume liquor. Since he had some urgent work, he left from there saying that he may rejoin them in their enjoyment. At about 11.00 pm while he was going to meet Umesh at his house no. 17 in the street no. 26A, he met accused Pawan Kumar Gupta going on a motorcycle belonging to Umesh, wearing a helmet SC No. 326/2017 State v. Pawan Kumar Gupta Pages 21 of 53 FIR No. 94/2017 and carrying a black and red colour bag. On inquiry from him as to where he was going, accused told him that Umesh had slept after taking food, so PW4 thought not to disturb Umesh and he returned to his house.
On 02.03.2017 he came to know that Umesh was murdered and his bike no. DL 3SCL 2727 black colour Passion Pro was taken away by accused Pawan Kumar Gupta.
On 03.03.2017 police made inquiry from him and he gave his statement to the police.
During his testimony, PW4 identified the accused in the court.
PW4 was duly cross examined by Ld. Legal Aid Counsel for accused.
3.07 PW-8 Surender Kumar, Nodal Officer, Bharti Airtel Ltd. deposed that in June, 2017 at the request of police of PS Badarpur, he had supplied the call detail records and customer application form with copy of ID proofs of mobile phone numbers 8130207780, 7042066450 and 9818371341 of the period from 25.02.2017 to 05.03.2017.
As per the same, the mobile number 9818371341 was in the name of Umesh Kumar s/o Attar Singh. The copy of customer application form of said mobile number is Ex.PW8/A, copy of ID proof i.e. aadhar card supplied at the time of obtaining connection of the above mentioned mobile pone is Ex.PW8/B and the call details of the said mobile phone for above mentioned period is Ex.PW8/C. The mobile phone no. 8130207780 was in the name of Sandhya w/o Pawan Kumar. The copy of customer appliation form is SC No. 326/2017 State v. Pawan Kumar Gupta Pages 22 of 53 FIR No. 94/2017 Ex.PW8/D and copy of ID proof i.e. Aadhar Card supplied at the time of obtaining connection of said phone is Ex.PW8/E and the call deatils of the said mobile phone for above mentioned period is Ex.PW8/F. The mobile no. 7042066450 was in the name of Ms. Kanwal Golakhnath s/o D. Golaknath. The copy of customer application is Ex.PW8/G and the copy of ID proof i.e. driving licence supplied at the time of obtaiing connection of the said mobile phone is Ex.PW8/H. The call details of the said mobile phone for the above mentioned period is Ex.PW8/I. He had also supplied cell ID chart of the Airtel towers Ex.PW8/J. He had also given certificate u/s 65B Indian Evidence Act Ex.PW8/K regarding the correct contents of the computerized copy of record supplied by him to the police.
PW8 was duly cross examined by Ld. Legal Aid Counsel for accused.
PW8 was again examined regarding supplementary chargesheet and he deposed that on 17.02.2018 he was posted as Nodal Officer at Bharti Airtel Limited and on that day he handed over the copies of CDR, CAF and Certificate u/s 65 IEA period to mobile nos. 981871341, 8130207780 and 7042006450 from 26.02.2017 to 05.03.2017.
As per the same, the CAF of mobile no. 981871341 was issued in the name of Umesh Kumar and the CAF along with copy of his aadhar card is Ex.PW8/L (colly) and CDR of the same for the period from 26.02.2017 to 05.03.2017 is Ex.PW8/L1.
The CAF of mobile no. 8130207780 was issued in the name of Sandhya and the CAF along with copy of her aadhar card is SC No. 326/2017 State v. Pawan Kumar Gupta Pages 23 of 53 FIR No. 94/2017 Ex.PW8/M (colly) and the CDR of the same for the period from 26.02.2017 to 05.03.2017 is Ex.PW8/M1.
The CAF of mobile no. 7042006450 was issued in the name of Sandhya and CAF along with copy of her aadhar card is Ex.PW8/N (colly) and the CDR of the same for the period from 26.02.2017 to 05.03.2017 is Ex.PW8/N. He also handed over the copy of cell ID chart of above three mobile numbers i.e. 981871341, 8130207780 and 7042006450 Ex.PW8/O. He had also given certificate u/s 65B of Indian Evidence Act Ex.PW8/P about the correctness of contents of above mentioned three mobile numbers.
He further deposed on behalf of Chander Shekhar Tiwari, the then Nodal Officer of Bharti Airtel Limited who was in service from 2014 to December 2018 and had left the services and his present whereabouts were not known. Said Chander Shekhar Tiwari had issued CDR, CAF and certificate u/s 65B IEA pertaining to mobile no. 9557298266 for the period from 20.10.2017 to 27.02.2018. He had seen the CAF which is E-KYC and said number was issued in the name of Rajendra Singh. The CAF is Ex.PW8/Q and he identified the signatures of Chander Shekhar Tiwari at point A. The CDR of the said mobile number for the period from 20.10.2017 to 27.02.2018 is Ex.PW8/Q1. Said Nodal Officer had also issued certificate u/s 65B IEA Ex.PW8/Q2 regarding the correctness of contents of above mentioned mobile number.
PW8 was duly cross examined by Ld. Legal Aid Counsel for accused.
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 24 of 53 FIR No. 94/2017 3.08 PW-9 Pawan Kumar, Nodal Officer, Vodafone Idea Limited deposed that pursuant to the request of police, he handed over certified copies of CDR Ex.PW9/A pertaining to mobile no. 9990626737 for the period from 25.02.2017 to 05.03.2017. He also provided the customer application form Ex.PW9/B of the subscriber of the said mobile phone i.e. Umesh Kumar s/o Attar Singh along with his proof ID i.e. Aadhar Card. He also provided certified copy of the Cell ID chart of the company Ex.PW9/C (colly). He had also given certificate u/s 65B Indian Evidence Act for the said electronic record i.e. CDR Ex.PW9/D. The CDR and electronic record had been retrieved from the password protected computer system, the password of which used to be with him only. The said record were feed automatically in the server in the ordinary coure of business. During the period for which the said record was pertaining, the system was functioning properly.
PW9 was duly cross examined by Ld. LAC for the accused.
3.09 PW10 SI Mohd Kafeel deposed that on 02.03.2017 he was posted at PS Badar Pur and was on emergency duty. On that day pursuant to a call received vide DD No.21A Ex.PW10/A, he along with Ct. Ramesh visited gali no.26A, Khajur wala Road, Molar Band Extension, New Delhi wherein complainant Sh. Attar Singh, father of deceased was found present and revealed to him that his son was murdered. Thereafter he along with said constable and complainant went to house no.17, gali no.26A, M. B. Extenstion, Badarpur, New Delhi where they saw that a dead body was lying in between bed and a wall of the room. Complainant identified the dead body of his son SC No. 326/2017 State v. Pawan Kumar Gupta Pages 25 of 53 FIR No. 94/2017 Umesh Kumar. On cursory look, it was found that deceased had sustained injuries on his head and a large amount of blood was lying on the floor of the room and stains of blood was also there on the wall of the room. Broken pieces of mirror were also found lying around the dead body. One brick was also lying under the head of deceased. One hawai chappal whose colour he do not remember was also lying there. The bed lying on the room was also having blood stains. One key was also found lying on the bed. One blood stained rectangle shape mattress of a bench size was also found lying on bed, it was also found having large blood stains. One black colour thread having locket of OM was also found lying on the bed. One table was also found in the room having a empty glass/tumbler, one soda bottle and one half liquor bottle containing small amount of liquor in it were kept.
He recorded the statement of complainant Ex.PW10/A and on the basis of said statement of complainant, he got the present FIR registered through Ct. Ramesh. After registration of FIR, the case was entrusted to Inspector Hoti Lal for investigation. Meantime, Inspector Hoti Lal along with other beat staff also reached at the said spot. Crime team was also called by him who inspected the scene of crime, prepared is report Ex.PW5/B and gave it to him. Crime team officials also took photographs of the spot.
After some time Ct.Ramesh again reached at the spot and handed over copy of FIR and rukka to Inspector Hoti Lal. Crime team official had also lifted the blood from the scene of crime, kept them in two plastic containers and later on handed it over to Inspector Hoti Lal who sealed the same with the seal of MK and seized them vide seizure SC No. 326/2017 State v. Pawan Kumar Gupta Pages 26 of 53 FIR No. 94/2017 memo Ex.PW5/A. Inspector Hoti Lal also lifted the exhibits from the scene of crime i.e. blood from floor, wall, bricks, pieces of concrete of the floor and kept them in a plastic container sealed the same with the seal of MK and seized vide seizure memo Ex.PW10/B. The said Inspector had also taken into possession the said key having a thread and the said black colour thead having locket of OM, converted the same into parcel, sealed them with the seal of MK and seized vide seizure memo Ex.PW10/C. Inspector Hoti Lal also took into possession the earth control from the scene of crime pertaining to the floor of the room and wall and from the place where broken pieces of mirror were found lying. Same were converted into parcel and numbered as serial no.6, 7 and 8, sealed with the seal of MK and seized vide seizure memo Ex.PW10/D. Inspector Hoti Lal also took into possession the blood stained rectangle mattress of a bench size and one piece of hawai chappal having blood stains, a blood stained bedsheet found spread on the bed, converted them into parcel, sealed them with the seal of MK and seized vide seizure memos Ex.PW10/E, Ex.PW10/F and Ex.PW10/G. IO had also taken into possession one black coloured specs having blood stains lying on the bed near the dead body, converted them into pullanda, sealed with the seal of MK and seized vide seizure memo Ex.PW10/H. IO had taken into possession the said tumbler (glass, soda bottle and the bottle containing liquor), converted into parcel, sealed with the seal of MK and seized vide seizure memo Ex.PW10/I. The exhibits taken into possession were lifted after taking photographs of scene of crime.
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 27 of 53 FIR No. 94/2017 IO had sent the dead body to AIIMS mortuary in the custody of Ct. Govinda and in the company of complainant. Later on, he also went there and after some time, Inspector Hoti Lal also reached there. On the same day, post mortem was conducted. Ct. Govinda handed over the exhibits pertaining to the deceased in sealed condition along with sample seal to Inspector Hoti Lal who seized the same vide seizure memo Ex.PW10/J. The photographs Ex.PW10/K1 to PW10/K26 were taken from the scene of crime.
During his testimony, PW10 identified the case properties Ex.P-1 to Ex.P-7.
3.10 PW16 Dr. Deepak Prakash deposed that on 02.03.2017 he was working as Senior Resident, Department of Forensic Medicine, AIIMS, New Delhi. On that day he along with Dr. Shinto Devassy, Senior Resident conducted the post mortem on the dead body of deceased Umesh, male aged 31 years in the mortuary of AIIMS hospital. They prepared the detailed post mortem report Ex.PW16/A vide PM report No.275-17 dated 02.03.2017. All injuries were mentioned in the PM report. The final opinion regarding cause of death was hemorrhagic shock due to injury of heart caused by blunt external force/impact which was sufficient to cause death in ordinary course of nature. All injuries were antemortem in nature. Viscera was preserved to rule out any intoxication.
PW16 was duly cross examined by Ld. Legal Aid Counsel for accused.
3.11 PW20 SI B. D. Meena deposed that on 03.03.2017 he was posted at PS Badarpur as Sub Inspector. On that day, he along with Ct. Pradeep and Ct. Sanjay went in search of accused Pawan Kumar SC No. 326/2017 State v. Pawan Kumar Gupta Pages 28 of 53 FIR No. 94/2017 Gupta to his native village situated in Etah, UP. They raided the house of accused at Etah, UP and some other places in search of accused but the accused could not be traced out. In the meantime on 06.03.2017 he received a telephone message from the Advocate of accused Pawan Kumar Gupta who informed him that accused Pawan Kumar Gupta had surrendered before Agra District Court in some other case of NDPS registered at PS Rakabganj, Agra, UP and the next date in said case was stated to be fixed on 28.03.2017. Thereafter they returned to Delhi. He gave all this information to the SHO PS Badarpur.
On the next day he moved an application in the court concerned at Saket Court for issuing production warrant of accused Pawan Kumar Gupta. On 18.03.2017 accused Pawan Kumar Gupta was produced before the court concerned at Saket Courts. He moved an application seeking interrogation of accused and his arrest. The same was allowed. He interrogated the acccused Pawan Kumar Gupta and recorded his disclosure statement vide memo Ex.PW13/A. Thereafter, he arrested the accused Pawan Kumar Gupta and conducted his personal search vide memos Ex.PW20/A and Ex.PW20/B in the presence of Ct. Tinku. Thereafter, he moved an application seeking police custody remand of acused but Hon'ble Court did not allow the police custody and send the accused in judicial custody, however, Ld. MM had mentioned in his order that they can obtain the police custody remand from Rohini Jail within 14 days.
On 24.03.2017 he along with Ct. Krishan and Ct.
Govinda went to Rohini Jail and he had shown the order of Hon'ble court to the authorities of jail and thereafter they handed over the accused into his custody as the court had already granted one day PC SC No. 326/2017 State v. Pawan Kumar Gupta Pages 29 of 53 FIR No. 94/2017 remand in its order. Thereafter, they came back to the police station along with accused and custody of accused was handed over to Inspector Hoti Lal.
On the same day, Inspector Hoti Lal Meena interrogated the accused and thereafter, he along with Inspector Hoti Lal Meena, Ct. Krishan, Ct. Govinda along with accused Pawan Kumar Gupta went near Galgotia University, Pari Chowk, UP at the instance of accused. Accused Pawan Kumar Gupta pointed out towards the bushes near the wall of above mentioned university and told that after killing the deceased, he took the motorcycle of deceased along with RC and mobile phone and he parked the vehicle in the above mentioned bushes and also threw the RC and mobile phone there. They searched all the above mentioned articles there and found the RC of motorcycle bearing no. DL 3SCL 2727 but the motorcycle and mobile phone were not traced. IO seized the said RC vide seizure memo Ex.PW13/B and said RC is Ex.PW20/C. They made investigation regarding the above mentioned motorcycle and mobile phone in the nearby area but could not find any clue. Thereafter, they returned to the police station and thereafter accused was sent to lock up. Inspector Hoti Lal recorded his statement.
PW20 was cross examined by Ld. Legal Aid Counsel for accused.
3.12 PW27 Pawan Singh, Nodal Officer, Vodafone Idea Limited deposed that he was working as Nodal Officer in Vodafone Idea Limited since 2005. On the request of the police officials, he had furnished the CDR details of mobile no. 9756559069 Ex.PW27/A and mobile no. 9990626737 Ex.PW27/B for the period from 26.02.2017 to SC No. 326/2017 State v. Pawan Kumar Gupta Pages 30 of 53 FIR No. 94/2017 05.03.2017 . The certificate u/s 65B of Indian Evidence regarding the said CDR is Ex.PW27/C. He had also provided the copy of CAF of aforesaid mobile numbers, however, the originals of the same have been destroyed due to a fire incident. The information regarding the same was given to the local police station. Certified copy of the same is Ex.PW27/D and certified copy of the fire report is Ex.PW27/E. He had given the copy of CAF of mobile no.9756559069 Ex.PW27/F from the computer system at the relevant time. The said mobile phone was in the name of Sanjay Babu s/o Shiv Nandan. The CAF of mobile phone no.9990626737 is Ex.PW27/G and same was in the name of customer Umesh Kumar s/o Attar Singth.
He had also issued the CDR to the police regarding mobile no. 7902195687 for the period from 22.l0.2017 till 09.02.2018. Said CDR is Ex.PW27/H. The CAF of said mobile number Ex.PW27/I was in the name of customer Murti Devi w/o Sanjay Babu. His certificate u/s 65B Indian Evidence Act regarding the CDR is Ex.PW27/J. PW27 was duly cross examined by Ld. Legal Aid Counsel for accused Pawan Kumar Gupta and Ld. Counsel for accused Sanjay Babu.
3.13 PW28 Inspector Rajiv deposed that on 06.01.2018 he was posted at PS Badarpur as SI and on that day IO Inspector Hoti Lal asked him to join investigation along with ASI Bhup Singh as they both were present at the police station. On that day, IO had called Sanjay Babu at police station who had produced one I-phone having IMEI no. 358549056356220 stating that same was sold to him by accused Pawan Gupta for Rs.2,000/- and IO had seized the same vide SC No. 326/2017 State v. Pawan Kumar Gupta Pages 31 of 53 FIR No. 94/2017 seizure memo Ex.PW28/P1. Meantime, IO Inspector Hoti Lal had retired and he had completed the supplementary chargesheet and was only left for submission before the concerned court but later on he expired. Hence, as per instructions of SHO, he filed the supplementary chargesheet against accused Pawan Kumar Gupta and Sanjay Babu in the court.
During PW28 testimony he identified the case property i.e. one mobile phone make i phone light orange (peach) colour having IMEDI no. 3585490563356227 and same is Ex.PW28/MO-1. Witness also identified the signatures of Inspector Hoti Lal on the seizure memo Ex.PW28/P1 at point C. PW28 was cross examined by Legal Aid Counsel for accused Pawan Kumar Gupta.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused Pawan Kumar Gupta was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. He stated that he is innocent and have been falsely implicated in the present case. 4.2 Accused stated that he never remained tenant in the house stituated in gali no.26, Molarband Extension nor he remained tenant under Umesh. He stated that since he did not even reside in the alleged house so there was no question to vacate the premises or to threat said person. Accused stated that he do not know PW3 Ravinder or deceased Umesh. He did not visit the house of Attar Singh for taking tiffin for deceased Umesh. Accused admitted that he was accused in case of PS Rakabganj, Agra, UP. He stated that number of warrants SC No. 326/2017 State v. Pawan Kumar Gupta Pages 32 of 53 FIR No. 94/2017 had been issued in said case and his Advocate told him to surrender so he surrendered in the said case on 06.03.2017. Accused admitted that he was arrested and his personal search was got conducted in the present case. Accused stated that he was sent on police remand but nothing was recovered at his instance and he did not give any disclosure statement to police. Accused stated that he had been falsely implicated in the present case.
4.3 Accused was further examined u/s 313 CrPC in regard to additional evidence brought by the prosecution u/s 311 CrPC regarding the mobile phones data. Accused stated that Sandhya is his wife but he do not know about the mobile no. 7042006450 or 8130207780 issued in her name. Accused stated that accused Sanjay Babu had falsely stated to the police about the mobile phone and he had not sold iphone having IMEI no.358549056356220 (deceased Umesh's mobile phone) to Sanjay Babu and he do not even know Sanjay Babu.
5. DEFENCE EVIDENCE 5.1 No defence evidence was led by the accused and matter was listed for final arguments.
6. ARGUMENTS 6.1 Thereafter, arguments of both parties were heard. Ld. Addl. PP for State has submitted that accused was a tenant in the premises of deceased and had some dispute with him. Further, he was last seen with the deceased soon before his murder. He was even seen with the motorcycle of the deceased after his murder and SC No. 326/2017 State v. Pawan Kumar Gupta Pages 33 of 53 FIR No. 94/2017 subsequently even RC of the stolen motorcycle was recovered at his instance. Further, the electronic evidence also shows that accused made calls to Sanjay Babu on the night during which the murder was committed and subsequently the stolen mobile was recovered from the possession of Sanjay Babu. Moreover, the location of mobiles which were subscribed in the name of his wife show his presence in the area where the murder was committed and also shows his movement towards UP during the night of murder thereby proving that he escaped from the spot of murder. Even his subsequent conduct i.e. getting into jail deliberately in another case by surrendering shows that he wanted to evade Delhi Police by such means. Accordingly, the circumstantial facts prove conclusively that he had committed the murder of deceased Umesh and had stolen his articles. 6.2 On the other hand, Ld. Counsel for accused has argued that there is no documentary proof of tenancy of accused under deceased Umesh. There is no independent witness regarding alleged tenancy or regarding the presence of accused at the crime scene around the time of alleged murder. All the witnesses regarding the tenancy and last seen evidence are the relatives/friends of deceased and are therefore interested witnesses. Moreover, there is no direct evidence regarding any motive of accused to kill the deceased Umesh. There is no forensic evidence showing the presence of accused at the crime scene. Neither any chance print or any biological sample of accused was recovered from the spot. Neither the stolen motorcycle nor the stolen mobile phone was recovered from the possession of accused. The RC of the stolen motorcycle has been planted on the accused by the police officials and there is no independent witness to SC No. 326/2017 State v. Pawan Kumar Gupta Pages 34 of 53 FIR No. 94/2017 corroborate such recovery. The accused has no connection to co accused Sanjay Babu and further the alleged mobile phones whose locations are relied upon by the prosecution are not in the name of accused himself. Accordingly, the prosecution has failed to prove its case against the acused and he is entitled to be acquitted.
7. POINTS FOR DETERMINATION 7.1 The relevant legal provisions applicable in the present case are reproduced herewith:
Section 302 IPC provides "Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine."
Further the ingredients of murder are defined in Section 300 IPC. It provides "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
(secondly) - if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
(thirdly)- if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
(fourthly)- if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
Section 379 IPC provides "Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
Section 411 IPC provides "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 35 of 53 FIR No. 94/2017 7.2 Since the present case is a case based on circumstantial evidence, it has to be decided in view of the guidelines laid down by the Hon'ble Supreme Court of India in regard to the cases based on the circumstantial evidence. One leading case on the said issue is C. Chenga Reddy and Ors vs. State of Andhra Pradesh (1996) 10 SCC 1993. In the said case, Hon'ble Supreme Court has observed that "in a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypotheses of the guilt of the accused and totally inconsistent with his innocence".
Thus, from the facts of the case, arguments of the parties and relevant provisions of law, the following points for determination arise:-
1. Whether sufficient circumstantial evidence has been led to prove the allegations againt the accused?
2. Whether the accused is liable to be convicted for the alleged offences?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 Time and Place of Murder Prosecution has led evidence through PW1 and the police official who visited the spot i.e. PW10 SI Mohd. Kafeel that the SC No. 326/2017 State v. Pawan Kumar Gupta Pages 36 of 53 FIR No. 94/2017 deceased was found dead at house no. 17, gali no. 26A, Molarband Extension, Badarpur, Delhi. Further, the circumstances at the spot proved through PW1 and PW10 i.e. deceased having head injuries and blood lying in the room and on the wall of the room and broken pieces of mirror and a brick etc. show that deceased was murdered in the same house. Further, as per post mortem report of the deceased Ex.PW16/A, the autopsy was conducted between 04.15 pm to 05.15 pm on 02.03.2017. As per said report, the time since death was about two third of a day. Accordingly, the victim Umesh died around midnight of 1st- 2nd March, 2017. None of said facts have been disputed throughout the trial by the defence. Thus, the circumstances under which the body was found, injuries found on the body and the cause of death mentioned in P. M. report categorically show that it was not a natural death but was homicidal death. Accordingly, it stands proved that the deceased was murdered in the said house at the aforesaid time.
8.2 Connection of accused with deceased, place of murder and time of murder PW-1 the father of deceased has deposed categorically that accused was residing as a tenant in the house where his son was murdered. He has deposed that due to construction work other tenants had vacated the house but the accused Pawan Kumar Gupta was staying in one room which was not demolished. He has also deposed that in the night of 01st March, 2017 his son had stayed overnight in the under construction house. PW1 deposed that on 18.01.2017, there was a quarrel between his son Umesh Kumar and the accused Pawan Gupta. He does not know what was the issue for the said quarrel.
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 37 of 53 FIR No. 94/2017 PW1 deposed that they later on settled the dispute. Thus, through testimony of PW1, the prosecution has led evidence to the effect that accused had close connection with crime scene, had familiarity with deceased and that their relations had turned sour at one point of time. Secondly, PW3 Ravinder has deposed that on 01.03.2017 he was present at the house of his uncle/PW1 and at about 09.00 pm accused came to the house to take food for Umesh as some construction was going on in their other house i.e. house no. 17, gali no.26, Molarband Extension. He deposed that he handed over the tiffin box to accused. Thirdly, PW4 Devender Kumar has further deposed that on 01.03.2017 at about 06.00 pm he met Umesh and the accused at aforesaid house where they both were playing cards. Therefore, three witnesses have deposed regarding the presence of accused at the house where the deceased was murdered on the fateful night. Ld. Counsel for accused has argued that there is no documentary proof of any tenancy of accused at the given house and further all the said witnesses are family relatives/friend of deceased and are therefore interested witnesses. Further, nobody has deposed having witnessed such previous dispute/quarrel between accused and deceased. Hence, there is no definite proof of any motive/enmity between accused and deceased. I have considered said arguments. However, since the murder happened in a house and not at a public place, therefore the natural witnesses regarding the events preceding the murder and around the time of murder would have been the family members only. Further, all three witnesses have been cross examined in detail and nothing substantial has surfaced to doubt their testimony. Rather in his cross examination, when PW1 was suggested that Pawan never SC No. 326/2017 State v. Pawan Kumar Gupta Pages 38 of 53 FIR No. 94/2017 remained a tenant in the alleged house, PW1 even deposed that the articles of accused Pawan are still lying in the room. However, said assertion was not controverted during his cross examination. Further, it is not necessary that there shall be a written lease agreement for a residential premises and same can be rented out through an oral tenancy. Moreover, during cross examination of PW1 by defence, contradictory suggestions were put to him. On one hand, it was suggested that there is no written agreement as accused was not residing in the said house as a tenant. On the other hand, it was suggested to PW1 that accused along with his family had vacated the tenanted room two days prior to the incident. Thus, the second suggestion has been put admitting the tenancy but claiming that the property had been vacated soon before the murder. Moreover, throughout the trial not even one specific suggestion was put to any witness that accused had been residing at any other particular premises, instead of crime scene premises. As far as motive of accused is concerned, PW1 has deposed about a dispute between accused and deceased but has neither disclosed its cause nor have claimed of having seen such quarrel nor has stated that he was told about it by deceased (so as it may be considered as dying declaration). However, proof of motive is not a sine qua non and it only corroborates the case of prosecution. Hence, absence of definite evidence of motive do not go to the root of the matter.
Ld. Counsel for accused has argued that PW1 has deposed in his examination in chief that all tenants except Pawan had vacated the property whereas in his cross examination he has deposed that the family of accused had shifted from the tenanted room two days prior SC No. 326/2017 State v. Pawan Kumar Gupta Pages 39 of 53 FIR No. 94/2017 to the incident and hence said contradiction shows that he had deposed falsely regarding the tenancy. I have considered said submissions. However, after reading the whole testimony of PW1, it can be made out that accused was yet to vacate the property completely though his family had moved out two days prior to the incident. In the given circumstances, the fact that the family of the accused had left the room two days before the incident is not much significant. Further, PW3 has deposed about handing over of tiffin box to the accused wherein food was meant for Umesh. Since PW3 was a relative of the complainant, therefore, his presence at the house of complainant cannot be said to be unnatural. Ld. Counsel for accused has argued that there are certain improvements in the testimony of PW3 over his 161 CrPC statement which shows that he is not a reliable witness and is a planted/interested witness. He has deposed that he met the wife and children of Attar Singh but no such fact has been mentioned in his 161 CrPC statement. I have considered said submission.
As per section 162 CrPC, as a general rule the statements recorded u/s 161 CrPC cannot be used for any purpose during the trial. As per proviso to section 162 any part of such statement can be used, "if duly proved", to contradict the witness. Further, explanation to section 162 CrPC provides that an omission to state a fact or circumstance may amount to contradiction if same appears to be significant and otherwise relevant in the context of the facts. However, the alleged 161 CrPC statement has not been proved through the IO of the case by the defence. Moreover, said explanation to section 162 CrPC has been narrowed down by Hon'ble Supreme Court of India in Tahsildar Singh v. State of UP AIR 1959 SC 1012. Thus, neither the SC No. 326/2017 State v. Pawan Kumar Gupta Pages 40 of 53 FIR No. 94/2017 161 CrPC statement was duly proved nor the alleged omission amounts to contradiction in view of aforesaid judgment.
Further, the photographs of the crime scene exhibited by the prosecution as Ex.PW10/K1 to Ex.PW10/K26 show chapaties (flat bread) along with a polythene in one of the photographs and even a casserole. The casserole is visible even in the photographs exhibited by the crime scene photographer as Ex.PW12/A1 to Ex.PW12/A16. Thus, said photographs demonstrate that unconsumed food was lying at the crime scene. Since the crime scene was an under construction house, the circumstances suggest that food must have been brought from elsewhere. Thus, the circumstances also corroborate the version of PW3.
Further, PW4 Devender Kumar has not only deposed about the presence of accused in the evening of 1st March, 2017 but has also deposed that accused was playing cards with deceased and that they all were planning to consume liquor. The aforesaid photographs also show scattered playing cards, beedi butts and liquor bottle at the spot. Even the liquor bottle was seized vide seizure memo Ex.PW10/I from the spot. Thus, the circumstances at the crime scene corroborate the version of PW4 also.
PW4 further deposed that around 11.00 pm he saw the accused riding the motorcycle of deceased. He has even specified that accused was wearing a helmet and was carrying a black and red colour bag.
As discussed earlier, as per post mortem report, the murder was committed around midnight of 1st- 2nd March, 2017. Thus, accused was seen with the deceased soon before his death and he was seen leaving the area with the belongings of deceased around the time of SC No. 326/2017 State v. Pawan Kumar Gupta Pages 41 of 53 FIR No. 94/2017 his death. This is the most crucial evidence against the accused. Ld. Counsel for accused has argued that PW4 was admittedly the friend of deceased and therefore he is an interested witness and cannot be relied upon. Further, there is no witness from the labour people allegedly working in the house about presence of accused with deceased. Moreover, PW4 admitted in his cross examination that he do not know who else had visited house no.17 between 06.45 pm to 11.00 pm i.e. time since he left the spot and the time when he allegedly saw accused on the motorcycle. Accordingly, the possibility of someone else committing the crime is not ruled out. I have considered said submissions. However, as mentioned earlier, since the incident occurred inside a house, therefore, it is natural that witnesses would be the family members/known persons of the deceased. As far as absence of any witness from the labour working at the spot is concerned, the events are of the evening hours and the labour generally works in day hours from morning till evening. Moreover, it has not come in the testimony of any witness or otherwise that labour was working in house till late evening/night hours. On the contrary, PW4 has deposed in his cross examination that labourers were not residing in the said house and used to leave in the evening. Further, throughout the cross examination of PW4, it was never put to said witness that accused was not present at the alleged spot or that he was present at some other specified location during the evening/night of 01.03.2017. The cross examination of PW4 is in the form of a generic denial and nothing more. As far as the possibility of a third person visiting the deceased during the absence of PW4 from 06.45 pm till the time of murder is concerned, firstly it is not the case that accused has admitted his SC No. 326/2017 State v. Pawan Kumar Gupta Pages 42 of 53 FIR No. 94/2017 presence and has given any explanation as to last point of time and the circumstances under which he parted company with deceased. Secondly, he was seen leaving with the motorcycle of deceased which was found missing after the murder and was never recovered. If PW4 had seen the accused under such circumstances, the burden was on the accused to explain the circumstances under which he parted company with the deceased. Rather PW4 has deposed that when he asked accused as to where he was going he told him that Umesh had slept after taking food. Therefore, the probability of the murder of deceased by a third person under such circumstances cannot be viewed in terms of an impossibility or not but has to be seen in terms of facts standing against the accused which to a great degree point towards his guilt only. Moreover, as discussed in succeeding paras, even other facts stack up against the accused. Thus, there is nothing substantial in the examination/cross examination of PW4 to doubt his testimony or the incriminating facts.
8.3 Electronic evidence regarding presence of accused in the area, his movement during the night of murder and electronic silence thereafter Further, the circumstantial facts of the case are also lined up against the accused. The prosecution has proved the call details record of two mobile numbers i.e. 8130207780 and 7042006450 as Ex.PW8/M1 and Ex.PW8/N1. The prosecution has also proved CAF of said numbers as Ex.PW8/M and Ex.PW8/N. Same shows that said phone numbers were issued in the name of Sandhya w/o Pawan Kumar Gupta. Ld. APP has submitted that CDR (Call detail Record) locations of both of said phones show that accused was present in the SC No. 326/2017 State v. Pawan Kumar Gupta Pages 43 of 53 FIR No. 94/2017 area of crime scene during the night of murder and further escaped to UP (Uttar Pradesh) in the early morning thereby showing the conduct of accused that he was fleeing from Delhi after the murder. Ld. Counsel for accused has put a counter agreement that none of the said mobile numbers are in the name of accused and therefore nothing can be read against him from the same. I have considered the submissions of both parties and the evidence regarding the aforesaid mobile numbers. During his examination u/s 313 CrPC, the accused was asked about both of said numbers. He admitted that Sandhya is his wife, however, he denied knowing either of said numbers. He also denied knowing about the location of said phone numbers in Delhi and thereafter change of location of said phone numbers towards UP around midnight. However, it is not believable that a person shall not be knowing the phone number of his wife and therefore same shows the guilty conduct of accused. Moreover, it is apparent that both of said numbers were not being used by the wife of accused herself. The simple reason for the same is that in the CDR of the said phone numbers inter se calls have been made on various dates i.e. around 19 calls were exchanged between said numbers on 26th and 27th February, 2017. Further, the CAF of both said numbers show that the subscriber signed/applied for the number on the same date i.e. 10.12.2016 from the same retailer. It does not appear even probable that wife of accused shall be requiring two mobile phones for her use at the same time. It may be noted that defence has not stated anywhere during the trial that accused was using any other phone number. Accordingly, from the circumstances, it can be safely concluded that accused was using at least one of said numbers at the relevant time.
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 44 of 53 FIR No. 94/2017 Moreover, CDRs (Ex.PW8/M1, Ex.PW8/N1) and cell ID chart (Ex.PW8/O) of both of said numbers show that their user/users were present in the area around the crime scene during late evening/early night hours and thereafter they travelled in the midnight of 01.03.2017 to 02.03.2017 (i.e the night of murder) from Delhi towards UP. Moreover, it is also to be noted that both of said phones were switched off/were not in use after 2nd of March as there is not a single call exchange/SMS exchange on the said phones from 2nd March, 2017 to 5th march, 2017 as per their CDR from 26.02.2017 to 5 th March, 2017. Therefore, all these facts show the conduct of accused whereby he was present in the area of scene of crime at the relevant time, he not only fled from Delhi in the midnight hours after the murder but maintained electronic silence by switching off the phones used by him/his family. 8.4 Subsequent conduct of accused Another circumstantial fact which has been relied upon by the prosecution is that soon after the murder the accused surrendered himself in Agra Jail, UP so as to avoid his arrest in the present case. PW20 SI B. D. Meena has deposed that on 03.03.2017 when he went to search accused at his native place, he was not found there and on 06.03.2017 he received a telephonic message from the Advocate of the accused that he surrendered before Agra District Court in some other case of NDPS registered at PS Rakabganj, Agra, UP. PW20 has further deposed that application was moved for production warrant of the accused and he was produced on 18.03.2017 at Saket Court where he was arrested. During his examination u/s 313 CrPC, accused has admitted his production at Saket Courts. He has also admitted that he was also accused in case of PS Rakabganj, Agra, SC No. 326/2017 State v. Pawan Kumar Gupta Pages 45 of 53 FIR No. 94/2017 UP. He has tried to give an explanation that number of warrants have been issued in said case and that his Advocate told him that he has to surrender in said case and accordingly he surrendered in said case on 06.03.2017. However, it is to be noted that there is no defence evidence regarding any warrants being issued against accused in any such case. Moreover, it is not the case that accused moved any surrender cum bail application or any application for cancellation of warrants. Rather, admittedly he straightaway went to surrender himself in such case. It is against normal human conduct that if warrants are issued by a trial court, the accused will meekly surender without praying for cancellation of warrants and re-admission on bail. Therefore, such surrender by accused within 5-6 days of the murder appears no coincidence. Considering the timeline and the other facts, no other conclusion can be drawn except that accused was making all efforts to keep away from Delhi Police and avoid being arrested in the present case, by such tactics.
8.5 Recovery of phone from co accused and connection of accused with him As per prosecution, the stolen mobile phone of the deceased was recovered from one Sanjay Babu and he got said phone from accused only. In this regard, PW28 Inspector Rajiv and PW29 ASI Bhup Singh have deposed that on 06.01.2018 one person namely Sanjay Babu came to the police station and produced one I-phone having IMEI no. 358549056356220 stating that he had purchased the same from accused Pawan Gupta for Rs.2,000/-. They have deposed that seizure memo was prepared regarding the same by the IO vide memo EX.PW28/P1. Said mobile phone was produced and exhibited SC No. 326/2017 State v. Pawan Kumar Gupta Pages 46 of 53 FIR No. 94/2017 during the trial vide Ex.PW28/MO-I. It may be noted here that though no bill of the mobile phone of the deceased have been proved but the fact of usage of such mobile phone by deceased have been proved otherwise through his CDR/CAF documents. Prosecution has proved CAF of mobile no. 9818371341 vide Ex.PW8/A along with ID documents of the subscriber Ex.PW8/B. Same shows that said number was issued to Umesh Kumar s/o Attar Singh, resident of house no.6, gali no.23, Tajpur Village, Badarpur, South Delhi i.e. the deceased. Further, the CDR of said mobile number 9818371341 Ex.PW8/C shows that from 25.02.2017 till 01.03.2017 said number was being used in a mobile number having IMEI number 358549056356220. Accordingly, it has been proved that the mobile number having the said IMEI number was the phone being used by deceased Umesh at the time of his murder. Even the cell ID read with the CDR of said number shows that it was being used in the area of the crime scene on 01.03.2017 and the last call made from said number was made at 21:20:16 hours. Thereafter, no incoming/outgoing was made from/to said number despite the call record obtained from 25.02.2017 to 05.03.2017. It is to be noted that PW1 has categorically deposed that after the murder, the mobile phone of deceased and his motorcycle was found missing. Accordingly, prosecution has proved that the said mobile with such IMEI number was not only stolen from the deceased but was also recovered from the co-accused Sanjay Babu. Ld. Counsel has submitted that there is no public witness to said recovery and same shows that mobile has been planted in the present case. Even otherwise said recovery is not linked to accused Pawan Kumar Gupta.
SC No. 326/2017 State v. Pawan Kumar Gupta Pages 47 of 53 FIR No. 94/2017 Moreover, there is no CDR etc. to prove that said phone was ever used by accused Pawan or co accused Sanjay Babu (since acquitted). I have considered said arguments. Firstly, there is no ground rule that if there is no public witness, the recovery by the police officials cannot be believed. It has been held by Hon'ble Supreme Court of India in Pramod Kumar Vs. State (GNCT) of Delhi (AIR 2013 SC 3344) that "the witnesses from the Department of Police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony. There is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. If, in the course of scrutinizing the evidence, the court finds the evidence of the police officers as unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence". Moreover, the co accused himself produced the mobile phone in the police station. Therefore, there was no possibility of joining public witnesses for such proceedings since the mobile phone was seized in the police station itself. Secondly, the phone in question was a specific property i.e. a particular phone with a particular IMEI number and it was not such a property which could have been planted by the police by procuring any random mobile phone. It may also be noted that it is not SC No. 326/2017 State v. Pawan Kumar Gupta Pages 48 of 53 FIR No. 94/2017 the case that the mobile of Umesh was recovered immediately after the murder so that it may be doubted that same had been planted by the police. Rather the said mobile phone was recovered after about ten months from date of the murder. Thirdly, the prosecution has also proved that the calls were exchanged between the phone of co accused Sanjay Babu himself and the mobile phone of accused which was subscribed in the name of the wife of accused. The prosecution has proved the CAF of mobile no.9756559069 vide Ex.PW27/F. Same shows that said mobile number was issued in the name of Sanjay Babu s/o Shiv Nandan i.e. the co-accused on 10.06.2009. Further, the CDR of said number for the period from 26.02.2017 to 05.03.2017 has also been proved by the prosecution vide Ex.PW27/A. Perusal of same shows that on 27.02.2017 one call was made from phone number 8130207780 to the aforesaid phone number of Sanjay Babu. Similarly, on 01.03.2017 call was made from said phone number to the phone number of Sanjay Babu at 16:15:13 hours. Moreover, calls were received by Sanjay Babu from phone number 7042006450 on 02.03.2017 at 08:50:08 to 09:34:19 hours. As mentioned earlier, the phone number 8130207780 and 7042006450 were subscribed in the name of wife of the accused. As discussed earlier, it is apparent that accused was user of either of the said phones. Thus, the said phone calls show that the accused and Sanjay Babu were definitely known to each other. Even the calls made on the morning of 02.03.2017 shows that Sanjay Babu was contacted by accused/his family on the very next morning of the murder. However, interestingly during his examination u/s 313 CrPC, the accused not only denied selling said phone to Sanjay Babu but also stated that he do not know Sanjay SC No. 326/2017 State v. Pawan Kumar Gupta Pages 49 of 53 FIR No. 94/2017 Babu. However, in view of the aforesaid phone call exchange, it is apparent that accused has falsely stated that Sanjay Babu was a stranger to him. Further, such denial by him shows his guilty conduct. As far as usage of said phone is concerned, indeed there is no CDR evidence that stolen mobile was used by accused Pawan or co accused Sanjay. Rather it was found to be used by PW26 Rajender Singh as per CDR record of his phone Ex.PW8/Q1 for the period from 20.10.2017 to 27.02.2018. PW26 Rajender has deposed that his number was being used by his brother Pushpender who had taken a mobile from some person in the village. As per supplementary chargesheet, Pushpender got this phone from co accused Sanjay Babu. However, since Pushpender himself was kept in column no.12, there is no evidence to such effect. Since the IO of case died, the line of investigation through which IO reached from Rajender to Sanjay Babu could not be proved completely by the prosecution. Nonetheless, recovery of phone from Sanjay Babu has been proved through testimonies of PW28 and PW29, even if the investigation of IO reaching to Sanjay Babu could not be proved. The established connection between co accused Sanjay Babu and accused Pawan as aforementioned but denial thereof provides another link to chain of events, despite IO not being examined (since died).
Hence, considering the overall circumstances, the recovery of the stolen mobile phone from a person known to the accused shows the guilty conduct of the accused.
8.6 Recovery of registration certificate of stolen vehicle The prosecution has also relied upon the recovery of the registration certificate of vehicle of the deceased which was stolen at SC No. 326/2017 State v. Pawan Kumar Gupta Pages 50 of 53 FIR No. 94/2017 the time of his murder. Prosecution has examined PW13 Ct. Govinda and PW20 SI B. D. Meena to prove the recovery of said registration certificate at the instance of accused. Ld. Counsel for accused has argued that there is no public witness to support such recovery and there is no photography/videography regarding such recovery. Even the local police of Greater Noida was never joined in investigation regarding such recovery. Moreover the alleged motorcycle was never recovered at the instance of accused. Thus, the alleged registration certificate has been planted upon by the police. I have considered said arguments. As mentioned earlier, there is no ground rule that police witnesses cannot be believed in the absence of public witnesses. Moreover, there is nothing substantial in the cross examination of PW13 or PW20 to suspect that they were not part of such recovery or that no such recovery was effected. Further, there is no mandate of criminal procedure to do videography/photography of recovery or to join the local police if out station investigation is done by Delhi Police. Most importantly, de hors the said recovery, there is ample circumstantial evidence against the accused as aforementioned. 8.7 Ld. Counsel for accused has argued that neither any finger prints of the accused were found at the crime scene nor the stolen motorcycle was ever recovered through accused. Further, the nail clippings of deceased were examined vis a vis a blood sample of accused but no DNA of accused could be found in the nail clippings of the deceased. Accordingly, it is argued that neither there is any forensic evidence nor any physical evidence to link the accused to the alleged offence. Hence, he shall be given benefit of doubt. I have considered said arguments. As far as the finger prints are concerned, SC No. 326/2017 State v. Pawan Kumar Gupta Pages 51 of 53 FIR No. 94/2017 the finger prints are available on smooth and polished surfaces. However, the scene of crime was an under construction site/house. Therefore it was natural that there would be few smooth /polished surfaces at such place and even such surfaces would not be in a clean condition due to construction activities. As per the crime scene report Ex.PW5/B, no chance prints could be developed from any of the objects/surfaces and, therefore, it is not the case that some chance prints were found and same could not linked to the accused. Moreover, the murder was committed in an enclosed area and in the absence of any eye witness and therefore the offender would have time to clean off his traces also. As far as non recovery of the motorcycle is concerned, accused was not immediately arrested after the murder and rather he was arrested after number of days. Therefore, there was ample time with the accused to dispose off the motorcycle. Considering the other circumstantial facts, such non recovery does not go to the root of the matter. Further, the nail clippings of deceased were examined vide report Ex.PW7/A. However, it is not the case that DNA of an unknown person was found from the nail clippings of the deceased. Rather as per said report, DNA could not be isolated from the nail clippings and consequently comparison could not be done. Therefore considering the overall facts and circumstances of the case, none of the said arguments of Ld. Defence Counsel help the cause of accused.
9. CONCLUSION 9.1 Thus, in view of the above said discussion, the prosecution has successfully proved the circumstances from which the SC No. 326/2017 State v. Pawan Kumar Gupta Pages 52 of 53 FIR No. 94/2017 guilt of the accused can be safely concluded. There is no such gap in the chain of evidence which creates any reasonable doubt in the case of prosecution. Further the circumstances are consistent only with the hypothesis of the guilt of the accused and are inconsistent with his innocence. Accordingly, accused Pawan Kumar Gupta is convicted for the offence u/s 302/379 IPC as charged. Digitally signed by SACHIN (Announced in the Open Court on SACHIN SANGWAN SANGWAN Date:
20th March, 2024) 2024.03.20 16:26:51 +0530 (Sachin Sangwan) Additional Sessions Judge (FTC-01): South East:Saket District Court: New Delhi. SC No. 326/2017 State v. Pawan Kumar Gupta Pages 53 of 53 FIR No. 94/2017