Delhi District Court
Ramesh Kumar Alias Rameshwar vs State, Wherein It Has Been Held That " on 17 July, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 40/1
Unique Identification No. 02404R0186812010
State
Versus
1) Mohd. Iqhlak @ Asif
Son of Mohd. Jabbar
R/o village Rebra PS Mohani
Distt. Aririya
Bihar
FIR No. 105/10
PS - Shalimar Bagh
U/s. 392/302/34 of IPC
Date of Decision: 26/04/2012
Date of sentence: 17/07/2012
ORDER ON SENTENCE
01/05/2012
Present. Ld. Addl. PP for State.
Convict Mohd. Iqhlak from J.C. with Amicus Curiae Sh. Himanshu
Buttan.
Heard on the point of sentence.
Learned Amicus Curiae has contended that convict Mohd. Ikhlaq is
aged about 22 years now. He is having his father only and eight brothers, who
SC No. 40/1 1
are all minor to him. He is unmarried. Learned Amicus Curaie has further
contended that convict Mohd. Iqhlak has no previous criminal record. He is not
a previous convict nor habitual offender. Learned Amicus Curiae has further
contended that during trial, conduct of convict Mohd. Iqhlak remained good.
Learned Amicus Curiae further submits that a lenient view be taken.
On the other hand, Ld. APP has contended that accused Mohd.
Iqhlak has been convicted for offences U/s. 392/34 of IPC and U/s. 302/34 of
IPC . Hence, he be dealt with accordingly.
I have considered the submissions of learned Amicus Curiae and
Ld. APP for State. The offences committed has caused a huge loss to the
family of the deceased, who was aged about 30 years. He was also a earning
member of the family and was supporting his family. Due to his murder, his
family has also suffered a lot and lost the love and affection alongwith
financial loss.
After considering the age, character and antecedents of the convict
Mohd. Iqhlak and the circumstances in which the murder was committed, I am
of the view that this case is not falling within the ambit of rarest of the rare
cases.
Offence U/s. 392 of IPC is punishable with R.I. for a term which
may extend to 10 years and shall also be liable to fine.
Accordingly, sentence of 10 years R.I. is imposed U/s. 392/34 of
IPC with fine of Rs. 5000/ upon convict Mohd. Iqhlak. In default of
payment of fine, he shall further undergo two and a half years simple
imprisonment.
Offence U/s. 302 of IPC is punishable with death or imprisonment
for life and shall also be liable to fine.
SC No. 40/1 2
Accordingly, sentence of imprisonment for life is imposed U/s.
302/34 of IPC with fine of Rs. 5000/ upon convict Mohd. Iqhlak. In
default of payment of fine, he shall further undergo two and a half years
simple imprisonment.
Both the substantive sentences of imprisonment shall run
concurrently.
Fine not deposited.
Convict Mohd. Iqhlak remained in custody from 28/03/10 till today.
Benefit of Section 428 of Cr.P.C. be given to convict Mohd. Iqhlak.
Convict Mohd. Iqhlak be remanded to JC to serve the sentence.
Announced in the open court
On 17th of July, 2012
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track court, Rohini
SC No. 40/1 3
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 40/1
Unique Identification No. 02404R0186812010
State
Versus
1) Mohd. Alam
Son of Mohd Aslam
R/o Village Islampur Madhaiyya,
PS Parwatta, District Khagaria
Bihar
FIR No. 105/10
PS - Shalimar Bagh
U/s. 392/302/34 of IPC
Date of Decision: 26/04/2012
Date of sentence: 01/05/2012
ORDER ON SENTENCE
01/05/2012
Present. Ld. Addl. PP for State.
Convict Mohd. Alam from J.C. with Amicus Curiae Sh. Himanshu
Buttan.
Heard on the point of sentence.
Learned Amicus Curiae has contended that convict Mohd. Alam is
aged about 24 years now. He is having old aged parents. He is having two
SC No. 40/1 4
younger brothers and one younger sister. He is unmarried. Learned Amicus
Curaie has further contended that convict Mohd. Alam has no previous
criminal record. He is not a previous convict nor habitual offender. Learned
Amicus Curiae has further contended that during trial, conduct of convict
Mohd. Alam remained good. Learned Amicus Curiae further submits that a
lenient view be taken.
On the other hand, Ld. APP has contended that accused Mohd.
Alam has been convicted for offences U/s. 392/34 of IPC and U/s. 302/34 of
IPC . Hence, he be dealt with accordingly.
I have considered the submissions of learned Amicus Curiae and
Ld. APP for State. The offences committed has caused a huge loss to the
family of the deceased, who was aged about 30 years. He was also a earning
member of the family and was supporting his family. Due to his murder, his
family has also suffered a lot and lost the love and affection alongwith
financial loss.
After considering the age, character and antecedents of the convict
Mohd. Alam and the circumstances in which the murder was committed, I am
of the view that this case is not falling within the ambit of rarest of the rare
cases.
Offence U/s. 392 of IPC is punishable with R.I. for a term which
may extend to 10 years and shall also be liable to fine.
Accordingly, sentence of 10 years R.I. is imposed U/s. 392/34 of
IPC with fine of Rs. 5000/ upon convict Mohd. Alam. In default of
payment of fine, he shall further undergo two and a half years simple
imprisonment.
SC No. 40/1 5
Offence U/s. 302 of IPC is punishable with death or imprisonment
for life and shall also be liable to fine.
Accordingly, sentence of imprisonment for life is imposed U/s.
302/34 of IPC with fine of Rs. 5000/ upon convict Mohd. Alam. In default
of payment of fine, he shall further undergo two and a half years simple
imprisonment.
Both the substantive sentences of imprisonment shall run
concurrently.
Fine not deposited.
Convict Mohd. Alam remained in custody from 28/03/10 till today.
Benefit of Section 428 of Cr.P.C. be given to convict Mohd. Alam.
Convict Mohd. Alam be remanded to JC to serve the sentence.
Announced in the open court
On 1st of May, 2012
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track court, Rohini
SC No. 40/1 6
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 40/1
Unique Identification No. 02404R0186812010
State
Versus
1) Mohd. Alam
Son of Mohd Aslam
R/o Village Islampur Madhaiyya,
PS Parwatta, District Khagaria
Bihar
2) Mohd. Iqhlak @ Asif
Mohd. Jabbar
R/o village Rebra PS Mohani
Distt. Aririya
Bihar
3) Mohd. Saddam @ Kalia
S/o Mohd. Saleem
Village Balaha, Post Narayanpur,
PS Bipur Distt. Bhagalpur,
Bihar
FIR No. 105/10
PS - Shalimar Bagh
U/s. 392/302/411/34 of IPC
Date of institution of the case: 24/06/2010
Arguments heard on: 11/04/2012
Date of reservation of order: 18/04/2012
SC No. 40/1 7
Date of Decision: 26/04/2012
JUDGMENT
One DD No.15 B was recorded on 22.03.2010 at about 11:00 AM about the dead body lying at C & D Block, near Railway Line, Haider Pur and Pipe Line in front of CNG Flats, Shalimar Bagh. This DD entry was handed over to SI Baljeet Singh, who left the spot with Ct. Sandeep and later on, he got registered the case U/s 302 IPC, on the same DD.
During investigation, copy of DD entry was collected. Photographs of the dead body were taken. Dead body was sent to motuary of BJRM Hospital for postmortem. One shirt belonging to deceased Satish, from the place of occurrence, where the dead body was lying, was taken into possession. Call details were collected Documents of one Anwar regarding his mobile phone were also collected on 28.03.2010 .
Accused Mohd. Alam, Mohd. Iqhlak, Mohd. Saddam were arrested by preparing memos. Their personal searches were prepared. Accused persons pointed out the place of occurrence and also made the disclosure statements. One mobile phone belonging to the deceased was recovered from accused Mohd. Alam, which was sealed and seized in this case. One wrist watch belonging to the deceased was recovered from the accused Mohd. Saddam. One pant belonging to the deceased was recovered from the Mohd. Iqhlak, which was sealed and seized, in this case. Accused Mohd. Iqhlak also got recovered a plastic pipe allegedly with which the deceased was beaten to commit the robbery and was sealed and seized, in this case.
IO also got conducted the TIP of the case property on 28.04.2010, where in witness Deepak identified the trouser, mobile phone and wrist watch. SC No. 40/1 8
On completion of investigation, charge sheet was filed U/s 392/302/411/34 of IPC against the accused persons, which was committed to the Court of Session on 08.07.2010 and was received on 13.07.2010.
After hearing the arguments on the point of charge, charg was framed U/s 411 IPC against accused Mohd. Alam, against accused Mohd. Iqhlak and against accused Mohd. Saddam each was framed, to which they pleaded not guilty and claimed trial. Charge U/s 392/302 r/w Section 34 IPC was framed against accused persons Mohd. Alam, Mohd. Iqhlak and Mohd. Saddam to which, they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW24 in all. On completion of evidence of the prosecution, statements of all the accused persons were recorded U/s. 313 Cr.P.C., wherein they have denied the case of the prosecution and have stated that they are innocent and have been falsely implicated in this case.
I have heard Ld. APP and Ld. Amicus Curiae Shri Himanshu Buttan for the accused persons and have gone through the evidence brought on record with material placed on record.
Recovery of Dead Body and its Identification.
PW1 Deepak Sharma has stated that he used to work at Balaji Tent House at Shalimar Bagh. A Jagran had to be organized on 21.03.2010 by his cousin sister Deepa at Swaroop Nagar. His cousin had to book a generator for Jagaran. His brother asked his cousin sister that he will book a generator from Balaji Tent House. On 20.03.2010 at about 9:30 PM, his brother Satish came to him at Jahangirpuri and at about 11:00 PM night, his brother told him that he was going to godown of Balaji Tent House and left his house immediately. His brother Satish left on foot. On the next day, Satpal owner of Balaji Tent SC No. 40/1 9 House came to his house and made inquiries about Satish as he had not reached at godown. He told him that Satish had already left for the godown of Balaji Tent House in the night. PW1 therefore made inquiries from the relatives about his brother Satish. His mobile phone was found switched off. Satpal, owner of Balaji Tent House again came to him in the evening on 21.03.2010 and made inquiries about Satish. He told him that Satish was not traceable.
PW1 has further deposed that on the next day i.e. 22.03.2010 at about 10:00 AM, Satpal told that one dead body was lying at bypass railway line, so they should go to see the dead body and further told that the said dead body might be of his brother Satish. Then he alongwith his uncle Mangal Sain and Satpal, owner of Balaji Tent House reached there. After seeing the dead body, PW1 identified the same to be of his brother Satish. His brother was facing towards a pit of water near the pipe line. The dead body of his brother was removed to BJRM Hospital for postmortem. His statement regarding identification of dead body of his brother was recorded Ex.PW1/A. After the postmortem, dead body was handed over to them vide memo Ex.PW1/B. PW1 has further deposed that his brother was having one mobile phone make Nokia, one wrist watch and some money. His brother was wearing a black colour stripe pant and one design shirt, when he had left his house on 20.03.2010 in the night.
PW1 has further deposed that he identified the Nokia phone, wrist watch and pant of his brother Satish before the court during TIP proceedings. He has identified the wrist watch as Ex.P1, mobile phone Nokia1650 as EX.P2, black colour pant as EX.PW3 and shirt as EX.P4, before the Court.
PW2 Mangal Sain has stated that son of his brother in law ie. Deepak and Satish used to work at Balaji Tent House and they used to reside at SC No. 40/1 10 H.No.J443, Jahangir Puri, Delhi. Generally, his nephew Satish used to reside at Balaji Tent House in night. In the night of 20.03.2010 at about 11:00 PM, Satish left the house for Balaji Tent House on foot.
PW2 has further deposed that on the next morning, Satpal owner of Balaji Tent House came to his house and he inquired about Satish and told that Satish had not reached at Balaji Tent House in the previous night. They searched for Satish. On 22.03.2010 at about 10:00 AM, Satpal, owner of Balaji Tent House came and told that dead body of a male was lying in between railway line and pipe line in front of CNG flats, Shalimar Bagh. He has further deposed that he could not identify the said dead body properly and they should accompany him to identify the dead body as to whether it was of Satish. He alongwith Deepak and Satpal reached there. They identified the dead body of said male as of Satish. The dead body was lying in the water facing towards the ground. His shirt was lying near railway line. Dead body was sent to mortuary of BJRM hospital for postmortem. Shirt was taken into possession by the police.
PW2 has further stated that Deepak accompanied the dead body to BJRM hospital. He alongwith Satpal went to PS Shalimar Bagh. Thereafter from PS he alongwith Satpal reached at BJRM Hospital. After postmortem, dead body of Satish was handed over to them. His statement regarding identification of dead body was recorded as Ex.PW2/A. He has identified the the shirt of Satish as EX.P4.
PW3 Satpal has deposed that he was running Balaji Tent House. One Satish was working with him on his shop, who used to reside in the godown behind his shop. He also used to visit his house from time to time i.e. J443, Jahangirpuri, Delhi, where he used to reside with his uncle Mangal Sain SC No. 40/1 11 and his wife alongwith brother Deepak.
PW3 has further stated that on 20.03.2010 Satish told him that he had to go to his house at Jahangir Puri as there was some programme in his relation i.e Jagran and he had to set up the generator for lighting. PW3 came to his house from his shop at about 7:00 PM. After closing the shop at about 9:00 PM, Satish left for his house.
PW3 has further deposed that he received a telephone call from his client, who told that they did not receive the articles for the function. He told them that Satish must have been sleeping in the godown, so they should collect the articles from Satish. After some time , his client told him that Satish was not present in the godown and godown was locked. He contacted Satish on his mobile phone, but the same did not respond and was switched off. Thereafter, he reached at the house of Satish in Jahangipuri and made inquires from his family members. They informed him that Satish had come but had left the house at about 11:00 PM night and had told that he was going to the tent house. He informed them that Satish did not reach at the tent house and was not there.
PW3 further deposed that he came back to his shop and in the evening, again he went to the house of Satish in Jahangirpuri as Satish had not returned for whole of the day. In Jahangirpuri, the family members told him that Satish had also not reached there.
Again on the next day i.e. 22.03.2010, he made inquiries from the family members of Satish and they told that even Satish had not gone in the Jagran to manage the generator. Thereafter, while he was coming back to his shop via bypass, he saw crowd near railway line. It was 9:90 AM, he reached there and saw one naked dead body of a male facing towards the ground, which he seemed to be of Satish from the appearance and built up but he failed SC No. 40/1 12 to identify him properly. So, he reached at the house of Satish in Jahangirpuri and asked them that one dead body was lying near railway line which seems to be of Satish. So they accompanied him to identify the dead body. Thereafter, Mangal Sain, Uncle of Satish and his brother Deepak accompanied him and they reached at the spot near railway line.
PW3 has further deposed that there was crowd and police was also present there. The dead body was turned over and was identified by Deepak as of Satish. Thereafter, dead body was sent for postmortem to BJRM hospital. Mangal Sain and Deepak went to BJRM Hospital with the dead body. He came back to his shop but he did not open his shop and again went to BJRM Hospital. After postmortem, dead body was handed over to the legal heirs and it was taken by Deepak to his native village for cremation.
Ld defence Counsel has contended that witnesses have not corroborated each other regarding the fact that as to whether Deepak reached at the spot alone or he was accompanied by PW Mangal Sain and Satpal. Ld defence counsel has further contended that in the cross examination, PW1 Deepak has not been able to explain as to why they did not get register the report of the missing of Satish after receipt of information from Satpal on 21/02/10.
Ld defence counsel has further contended that according to PW2 Mangal Sain, Deepak went to hospital with dead body and he alongwith Satpal went to PS, whereas according to PW3 Satpal, after sending the dead body to BJRM hospital with Mangal Sain and Deepak, he came back to his shop and again went to BJRM Hospital.
Ld defence counsel has further contended that according to PW2, Mangal Sain, he was residing with his family at J441, Jahangirpuri, whereas SC No. 40/1 13 Satish with Deepak was residing at J443, Jahangir Puri, but according to deposition of PW3 Satpal, Mangal Sain and Satish also used to reside in the same house, so it is not certain whether the complainant was residing with Mangal Sain or was residing separately.
Ld defence Counsel has further contended that according to the cross examination of PW1 Deepak, Satpal had told him that he was knowing as to where Satish had gone, but PW Satpal had not been interrogated in this respect. Ld defence counsel has further contended that it is not corroborating with the prosecution case as according to IO PW19 SI Baljeet Singh, after some time one Deepak resident of J443, Jahangir Puri came at the spot and identified the dead body as of his brother Satish, so PW1 Deepak, PW2 Mangal Sain and PW3 Satpal cannot be relied upon that they had gone to the spot together to identify the dead body.
PW19 SI Baljeet Singh has also stated in the cross examination that Deepak reached at the spot at about 1010.15 pm and he reached there alone searching for his brother, which shows that Mangal Sain and Stapal have been introduced as witness to the proceedings later on and they did not accompany Deepak at the spot for identification of dead body and have deposed falsely, in this respect.
Ld defence counsel has further contended that there is correction in the statement of Ex.PW19/A and Ex.PW2/A, wherein name of Deepak was mentioned as deceased instead of Satish and dead body was identified by Mangal Sain as of Deepak, son of his brother in law, which creates doubt about the identification of dead body also, hence witnesses cannot be relied upon.
Ld defence counsel has further contended that on other hand PW7 Ct Sandeep has stated in the cross examination that brother of deceased had SC No. 40/1 14 also reached at the spot and at the time of removing the dead body in a tempo to BJRM hospital, brother of deceased and one more person, who was accompanying him, had also gone with them, which is contradictory to the statements of PW1 Deepak, PW2 Mangal Sain and PW3 Satpal.
I have considered the submissions of Ld defence Counsel. According to the case of prosecution, PW1 Deepak and PW2 Mangal Sain have identified the dead body only as of Satish, and further have identified the shirt, which was seized from the spot. PW3 Satpal has proved the fact only to the extent that deceased Satish was working in his tent house and also used to sleep at his godown. So, if PW1 Deepak reached at the spot, alone to identify the dead body or that they reached there simultaneously accompanying each other, where dead body was identified by Deepak does not mean that they had deposed falsely.
The contention of Ld defence counsel that these PW have contradicted each other on the point that Deepak and Satish were residing with PW2 Mangal Sain is not tenable because the houses of both these witnesses are adjoining i.e. house no.443 and house no. 441, Jahangirpuri, so much technical view cannot be taken in this respect to disbelieve the witnesses. Dead body was seen and identified on 22/03/2010, whereas Satish was missing since the night of 20/03/2010, so it is quite probable for PW3 Satpal, that he could not be able to identify the dead body as of Satish at first instance and more so, the relatives of the deceased i.e. PW1 Deepak and PW2 Mangal Sain were more appropriate persons to identify the dead body, hence the contention about this fact is also not tenable in any manner. The correction in the statement Ex.PW19/A and Ex.PW2/A has been explained by PW19 SI Baljeet Singh, so it does not seems to be improbable. SC No. 40/1 15
In such circumstances, the prosecution has been able to prove the identity of the dead body as of Satish with the deposition of PW1 and PW2 and PW3, beyond reasonable doubts.
The prosecution has also been able to prove that the dead body was recovered from the place as was informed to the police and after the completion of necessary proceedings, it was removed to the BJRM hospital for postmortem.
Registration of the FIR.
PW24 W/Ct Banesh has stated that on 22/03/2010, she was posted as PCR Operator at PHQ, Police Control Room and on that day, at about 8/07 pm, she received a call regarding lying of dead body at outer ring road, beneath the railway line, Haiderpur in front of C & D Haiderpur. She filled up PCR form and after filling up PCR form, she passed the information on net to be further circulated to district Control room. She has also produced the computer copy of PCR form , copy of which is Ex. PW24/A. About the incident of 22/03/2010, PW5 Ct Sushila has stated that she was working as DD writer at PS Shalimar bagh from 8.00 pm to 4.00 pm. On that day, at about 8.15 am, on receipt of information from wireless operator about the dead body lying near railway line outer Ring road, Haider Pur, she recorded this information as DD no. 15B and handed over the same to SI Baljit Singh. Copy of same is Ex.PW5/A,. PW5 has also produced the original DD register.
PW19 SI Baljeet Singh has stated that on receipt of copy of DD no.15B, he alongwith Ct Sandeep, Ct Ajaypal and Ct Mehendihassan reached at C and D block, Railway line,where he saw the naked dead body of young man 3032 years lying in small pit, with his face towards the ground. There SC No. 40/1 16 was no deep injury mark on the body. PW19 has further stated that he had called the crime team on the spot, who had inspected the scene of crime and the photographs were taken. In the meanwhile, SHO Shalimar Bagh alongwith other senior officer also reached at the spot and after some time, one Deepak son of Jaipal r/o J443, Jahangirpuri also came at the spot and told that the dead body was of his brother Satish. He also identified one cream colour shirt lying near the railway line as of his brother Satish.
PW19 has further deposed that due to non appearance of deep injury marks, he sent the dead body to the mortuary of BJRM hospital for postmortem of the dead body instead of preparing rukka. He completed inquest proceedings for conducting postmortem on the body of deceased. He also recorded the statement of Deepak and Mangal Sain regarding identification of dead body, which is Ex.PW1/A and Ex.PW2/A and he also recorded another statement of Mangal Sain Ex.PW19/A and of one Satpal, Ex.PW19/B. PW19 has further deposed that he filled up form no. 25.35, which is Ex.PW19/C and he prepared the brief facts as Ex.PW19/D. He also made request for conducting the postmortem vide application Ex.PW19/E and after postmortem, body of deceased was handed over to his brother Deepak vide Ex.PW1/B. PW19 SI Baljeet Singh has further deposed that after postmortem, doctor had told him that the death of the deceased took place due to injuries on his private parts, hence PW19 made rukka on copy of DD no. 15B vide Ex.PW19/F. As no eye witness met him, hence he had prepared rukka on the copy of DD no.15B and handed over the same to PW7 CT Sandeep for registration of the FIR, who left the hospital for PS. After registration of the case, further investigation was handed over to Inspector Puran Chand. SC No. 40/1 17
PW7 Ct Sandeep has deposed the same facts and has stated that on receipt of rukka, he went to PS and got register the case and came back at the spot, where he handed over the copy of FIR and rukka to the Investigation officer SI Baljeet singh, and his statement was recorded by the IO.
PW6 HC Ram Asare has stated that on 22/03/10, while he was posted at PS Shalimar Bagh as Duty Officer from 4 pm to 12 pm, he received rukka from PW7 Ct Sandeep sent by SI Baljeet Singh, on the basis of which, he recorded FIR of this case, copy of which is Ex.PW6/A. PW6 has also produced the original FIR registered and special report of the FIR was sent to the Sr. Police officials through Ct Ajay Pal and he also made an endorsement regarding registration of the FIR Ex. PW6/B. PW8 SI Devender Singh has stated that on 22/03/2010, he was working as Incharge Mobile Crime Team and on receipt of wireless message from control room to reach opposite C & D block, Haider Pur, Shalimar Bagh, he alongwith his team reached there. The spot was in between civil line and railway line, a vacant space muddy area and he saw a dead body of a male facing towards the ground in a pit having water. The dead body was lying outside the pit and it was completely nude. He observed the marks of beating in the back of the body and it was muddy having unclear foot marks. He also observed two marks below the stomach of dragging . PW8 has further deposed that Ct Subhash took photographs of the spot and he prepared inspection report Ex.PW8/A at the spot and handed over the same to SI Baljeet Singh.
PW11 Ct Subhash has also deposed the same facts as of PW8 SI Devender Singh and has stated that he accompanied the crime team at the spot and had taken 11 photographs of the dead body from different angels and after preparing the positives, he handed over the same to IO. He has proved the SC No. 40/1 18 positives as Ex.PW11/1 to 11 and negatives as Ex.PW11/12 to 22.
PW19 SI Baljeet Singh has further deposed that after the postmortem, doctor had handed over to him the sealed pullanda containing blood sample of deceased and sample seal to him, which he further handed over to Inspector Puran chand, which was seized vide memo Ex. PW19/G. PW19 has further deposed that in his presence, Inspector Puran Chand also prepared the site plan, at his instance. The shirt lying at the railway line was also taken into possession and was sealed with the seal of PC. It was seized vide memo Ex.PW19/H. He has also identified the shirt of deceased as Ex.P4.
PW23 Inspector Puran Chand has stated that on 22/03/2012, he was posted at PS Shalimar Bagh and on that day, vide DD no.15B, an information was received at the PS regarding a dead body lying near railway line in Haiderpur in C & D block and the said DD was marked to SI Baljeet Singh, who reached at the spot with Ct Sandeep and just after sometime, he alongwith SHO, Shalimar Bagh Inspector Jogender Singh Joon and other senior officers also reached at the spot. One dead body was found lying in naked position in a small pit with its face towards the ground. Crime team was called at the spot and there was no apparent injury marks over the body of the deceased and the same was sent for postmortem and as per opinion of the doctor, SI Baljeet Singh prepared rukka and got registered the case. PW23 has further deposed that on receipt of copy of FIR and rukka, he alongwith HC Ram Singh and Ct Sandeep had again reached at the spot, where SI Baljeet Singh was also found present. He prepared rough site plan Ex..PW23/A and also sealed and seized one cream colour shirt belonging to deceased, which was lying near the railway line vide memo Ex.PW19/H. SI Baljeet singh also had handed over to him the sealed pullanda of blood sample of deceased in gauze SC No. 40/1 19 piece, which was taken into possession vide memo Ex.PW19/G. Thereafter, he came back at PS and deposited the case property in the malkhana and he recorded the statement of the witnesses u/s 161 Cr.PC.
PW23 Inspector Puran Chand has further deposed that in the evening, Deepak Sharma and Mangal Sain came to PS and he recorded their statements, wherein Deepak Sharma told that when his brother Satish had left the house, he was having one mobile phone no. 9716084995 and was also wearing one wrist watch and was also having some money and he was wearing cream colour shirt and black colour pant having lining.
PW23 has further deposed that he collected the call details recordt and he came to know that the last call, which was SMS from mobile phone of deceased was made at 8.22 pm on 20/03/10 and after that his mobile phone was switched off. The said mobile number was kept on surveillance and from the Email, he came to know that the said mobile phone was reactivated on a vodafone mobile number 9953654659. Thereafter, further details of this phone number were collected from the office of ACP through email and he came to know that one Umesh Kumar resident of Bhalswa Dairy was the user of this mobile phone number and he also came to know that from this vodafone mobile number of Umesh Kumar, some calls were made on Aircell mobile number 9716327942 on 22/03/2010 at 17.31 hours for 88 seconds. Call details of this Aircell mobile number 9716327942 were also called and he came to know that this mobile phone was being used by one Manohar Pandit of Jahangirpuri.
PW23 has further deposed that on the next day, i.e. 24/03/2010, he alone with HC Shesdhar and Ct Ramesh reached at Bhalaswa Dairy at the address of Umesh Kumar, where they came to know that Umesh Kumar was SC No. 40/1 20 working in SSI 63 Industrial Area, Jahangir Puri. Hence they reached there, where Umesh Kumar met them and he made inquiries about the mobile phone being used by him, who told that he did not get issue said mobile number. Umesh Kumar further told that he had applied for a new mobile connection of Vodafone at Mittal communication, I block Jahangir Puri, but the same could not be issued to him by that time. PW23 recorded the statement of Umesh Kumar and thereafter they came back to PS. PW23 has further deposed that in the evening of 24/03/2010, he applied for collecting more call details record till that date of the mobile phone of deceased, which was being used in the name of Umesh Kumar. On 25/03/2010, he obtained the call detail report and after going through the same, he came to know that two calls were received on this mobile phone from another vodafone number and in the evening, two outgoing calls were made on some other vodafone number and through that call record, it was revealed that one Anwar had made the said two calls from another mobile phone number 9953905326 on 23/03/10 to mobile number 9953654659 and he had also received two calls on this mobile phone number from mobile number 9953654659 on 24/03/2010. they collected the address of said Anwar and made inquiries from Anwar at his house at Swaroop Nagar Extension, who told that the said mobile phone number was of one Alam, who was his grandson from village relations and he had made call to Alam from this mobile phone to call him as they both were working together on 24/03/10 and he had also received calls from Alam.
PW23 has further deposed that thereafter they tried to find out Alam in the Jhuggies of SSI Industrial Area, Jahangirpuri area, Jahangir Puri, but at that time, he could not be found . They deployed the sources to find out SC No. 40/1 21 whereabouts of the Alam and on 27/03/2010 PW23 went on medical rest and again joined his duties on 09/04/2010. During this period, investigation of this case was carried out by SHO Shalimar Bagh Inspector Jogender Singh Joon and during that period, accused Mohd Alam, Mohd Saddam and Mohd Iqhlak @ Asif were arrested.
In my view, nothing came out from the cross examination of these witnesses to disbelieve them, so, the depositions of witnesses, who have corroborated each other and inspire confidence, prosecution has been able to prove that the information regarding the lying of dead body was received, which was recorded vide DD no.15B. It is also proved beyond reasonable doubts that on receipt of this DD, PW19 SI Baljeet Singh alongwith PW7 Ct Sandeep reached at the spot and conducted the proceedings. PW19 got registered the case, on the said DD. Dead body was identified by PW1 Deepak and PW2 Mangal Sain. PW6 HC Ram Asre also proved the fact that on receipt of rukka, he recorded the FIR of this case. PW8 SI Devender Singh has also proved that he inspected the scene of crime. PW11 Ct Subhash has also proved the photographs of place of occurrence From the deposition of PW23 Inspector Pooran Chand, prosecution has been able to prove beyond reasonable doubts that one cream colour shirt from the spot belonging to deceased was taken into possession, statement of Deepak was recorded in the evening of 22/03/2010, disclosed that Satish, when had left the house, was having one mobile phone no 9716084995 and was wearing wrist watch and he was also having some money. Satish was also wearing one cream colour shirt and one black colour stripe pant.
It is also proved beyond reasonable doubts from the deposition of witnesses that the said mobile phone number was having IMEI no. SC No. 40/1 22 354183030886300 , on which further details were taken and it was revealed that one number 9953654659 was issued to one Umesh Kumar and it was further revealed that for getting issued the number, Umesh Kumar had handed over the documents and it was further revealed that from this mobile number calls were made and received on the mobile number of one Anwar. So, prosecution has also been able to prove beyond reasonable doubts that mobile number of deceased having the said IMEI was activated with number 9953654659, issued in the name of one Umesh Kumar and the same was being used by one Alam.
Arrest of Accused persons and Recoveries made.
PW22 Inspector Jogender Joon has stated that on 28/03/2010, he was posted as SHO at PS Shalimar Bagh and on that day, investigation of this case was handed over to him and on perusal of the case file, he came to know that accused persons were yet to be arrested, so he alongwith PSI Rakesh Duhan, HC Sheshdhar and other staff left the PS in government gypsy in search of accused and when they reached near jhuggies of SSI Industrial Area, GT Karnal Road, one secret informer met him and informed him about two of the accused persons and accompanied them. Secret informer pointed out towards a boy, who was standing in front of jhuggi, who was one of the accused Mohd Alam , who was apprehended by PW22 at the instance of secret informer. PW22 has further deposed that accused Mohd Alam was interrogated and was arrested in this case vide memo Ex.PW18/A and his personal search was also conducted vide memo Ex.PW18/B and he also got recorded his disclosure statement Ex.PW18/D. At the time of arrest of accused Mohd alam , he had produced one mobile phone make Nokia 1650 of black colour with battery having sim no. 9953654659 This mobile phone was SC No. 40/1 23 sealed with the seal of JS and was seized vide memo Ex.PW18/C. PW22 Inspector Jogender Joon has further deposed that thereafter accused Mohd Alam took them at C & D block , near railway line and pointed out the place of occurrence . PW23 prepared pointing out memo Ex.PW18/E and thereafter accused Mohd Alam took them in a jhuggi in the area of SSI Industrial Area, GTK road, where one boy was sleeping in the jhuggi and on seeing that boy, Mohd Alam told that he was Mohd Saddam @ Kalia, one of the coaccused. Accused Mohd Saddam was also apprehended, interrogated and was arrested vide memo Ex.PW18/F. His personal search was also conducted vide memo Ex.PW18/G . PW22 has further deposed that accused Mohd Saddam also made disclosure statement Ex. PW18/N and at that time, accused was wearing one wrist watch make Titan Sonata having black strip and same was seized vide memo Ex.PW18/H. PW22 has further deposed that thereafter accused Mohd Saddam also pointed out the place of occurrence vide memo Ex.PW18/I and both of accused led the police party near metro station, Jahangirpuri and pointed out a boy standing near the stairs of metro station, as their associate Iqhlak @ Asif. He was also apprehended, interrogated and he was arrested vide memo Ex. PW18/J and his personal search was conducted vide memo Ex.PW18/K. He also made disclosure statement Ex. PW18/M. At the time of arrest, accused Iqhlak was wearing black colour pant having stripes. Pant was sealed with the seal of JS and was seized vide memo Ex.PW18/L. Thereafter, accused Iqhlak pointed out the place of occurrence vide memo Ex.PW18/O and led the police party towards the bushes near railway line and took out one rubber pipe of blue colour and told that it was the same pipe,with which he had given beatings to the deceased. Pipe was sealed with the seal of JS and was seized vide memo SC No. 40/1 24 Ex.PW18/P. PW22 has further deposed that thereafter accused persons were sent for their medical examination and case property was deposited in the malkhana and accused persons were locked up. On 08/04/2010, he had also moved an application before concerned court for fixing TIP, copy of which is Ex.PW22/A and further investigation was handed over to Inspector Puran Chand.
PW22 has also identified the mobile phone make Nokia as Ex.P2, wrist watch make Titan sonata as Ex.P1, black colour pant as Ex.P3 and plastic pipe of blue colour as Ex.P5.
PW18 HC Shesh Dhar has also deposed the same facts as of PW22 Inspector Jogender Joon regarding arrest of all the three accused persons and recoveries made from them and has also identified the accused persons with case property before the Court.
In the cross examination, PW18 has stated that they left the PS at about 2.00 pm whereas PW22 has stated that they left the PS at about 1.30 pm, in my view this contradiction of time is minor one and is not affecting the trustworthiness of the witnesses. According to their further cross examination, they both have corroborated about the fact that gypsy in which the police party had gone was parked at a distance. Witnesses have also corroborated about the fact that secret information was received by PW22.
Ld defence counsel has contented that according to the cross examination of PW18 HC Sheshdhar, accused Alam was apprehended from outside the jhuggi cluster, whereas PW22 Inspector Jogender Joon has stated that accused Alam was standing outside his jhuggi.
To my mind, this is also minor contradiction and the variation SC No. 40/1 25 about the place of arrest is not much significant unless the place is entirely different, so it is not a major contradiction to disbelieve the testimonies of witnesses. Witnesses have also corroborated each other in the cross examination regarding the production of mobile phone by accused Mohd Alam, which was seized, in this case, after sealing the same. According to cross examination of PW18 HC Sheshdhar, disclosure statement of accused Alam was recorded at about 3.153.30 pm and this fact is also corroborated by PW22 Inspector Jogender Joon, who has stated that disclosure statement of accused Mohd Alam was recorded within 1015 minutes, at the place, where he was arrested and he was arrested at about 3.00 pm, so there is corroboration about the time of recording of disclosure statement also.
PW18 has stated that they stayed at the place of arrest of accused Alam till 4.30 pm, whereas PW22 has stated that police party left in their gypsy at about 4.15 pm, so the variation in the time is minor contradiction and is not affecting the reliability of the witnesses.
Regarding arrest of accused Saddam, there is not contradiction in the deposition of witnesses. However, Ld defence counsel has contended that wrist watch was not sealed, but PW22 Inspector Jogender Joon has not been specifically asked as to why the wrist watch was not sealed and even otherwise the wrist watch was of a particular make, so there was no necessity to seal the same in a pullanda.
PW21 SI Rakesh Duhan has also deposed the same facts as of PW22 Inspector Jogender Joon, regarding the arrest of accused persons and recovery made from their possession and at their instance.
Ld defence counsel has contended that PW18 HC Sheshdhar and PW22 Inspector Jogender Joon have stated that all the police officials were in SC No. 40/1 26 uniform, where as PW21 SI Rakesh Duhan has stated that he was in civil dress. Some of the police officials were in civil dress and some were in uniform . HC Sheshdhar was also in civil dress , which creates doubt in the deposition of witnesses as to whether they actually arrested the accused persons and made recoveries from them in the manner as deposed by them.
Ld defence counsel has further contented that PW21 SI Rakesh Duhan has also contradicted with PW18 HC Sheshdhar and PW22 Inspector Jogender Joon regarding the fact in which manner the rubber pipe was got recovered by accused Iqhlak and has stated that in the cross examination, it has come that they reached there at about 7.30 pm. There was dark and they were having torch with them and in the light of torch, pipe was recovered from accused. Ld defence counsel has further contended that neither PW18 HC Sheshdhar nor PW22 Inspector Jogender Joon has deposed before the court that accused Iqhlak got recovered the pipe in the light of torch, so the witnesses cannot be relied upon regarding the arrest of the accused persons in the manner as deposed and recoveries effected from their possession.
In my view, except the contradiction as pointed out as to whether all the witnesses were in uniform or some were in uniform and some were in civil dress, there is no other contradiction as pointed out by Ld defence counsel in the deposition of PW18 HC Sheshdhar, PW21 SI Rakesh Duhan and PW11 Inspector Jogender Joon, so this can be treated as minor contradictions and only on this ground, testimonies of the witnesses cannot be disbelieved because on all other aspect in the examination in chief and in the cross examination, these witnesses have corroborated each other regarding the arrest of accused persons and recoveries made from their possession and made further at their instances.
SC No. 40/1 27
Even if, PW18 HC Sheshdhar and PW22 Inspector Jogender Joon have not deposed that rubber pipe was got recovered by accused Iqhlak in the light of the torch then it does not mean that they have deposed falsely before the Court or recovery of rubber pipe on the pointing out of accused Iqhlak is doubtful or that the pipe was planted upon the accused persons because the testimonies of witnesses are inspiring confidence and merely torch has not been referred by PW18 HC Baksheesh and PW22 Inspector Jogender Joon does not mean that no such pipe was got recovered by accused Iqhlak in furtherance of his disclosure statement, so to my mind, witnesses cannot be disbelieved in any manner on this point. More so, torch has been referred by PW21 in the cross examination and if this question was not asked from PW18 and PW22 then they were not having any opportunity to explain about the torch, so this is not a contradiction at all.
PW22 Inspector Jogender Joon has further deposed that on 10/04/2010, he recorded the statement of one Mantu Sahni to verify the call, which was made by accused Mohd Alam and collected the related document of mobile phone of Mantu Sahni and on 16/04/2010, he had collected the postmortem report of deceased Satish. On 21/04/2010, he also recorded the statement of one Ashok Kumar, owner of Mittal Telecom, who disclosed that he had received one photocopy of voter I/card and prepaid application form from Umesh Kumar for getting a new vodafone connection but later on, he did not come to collect the same. He further told that later on, he had given that SIM of Umesh Kumar to one Mohd Alam, who had come to his shop for renewing the connection and at that time, accused Mohd Alam had handed over to him one photo and one photocopy of voter I/Card. These documents were taken into possession vide memo Ex.PW12/A . Photocopy of voter I card SC No. 40/1 28 is Ex. PW12/B. Photograph of Mohd Alam is Ex.PW23/B. PW23 Inspector Puran Chand has further deposed that on 28/04/2004, he got conducted the TIP of case property from Ld Link MM, wherein PW Deepak Sharma, brother of deceased had correctly identified the articles. Copy of application for TIP Proceedings is Ex.PW23/C. He also obtained the copy of TIP Proceedings.
PW23 has further deposed that on 07/05/2010, he took draughtsman SI Manohar Lal at the spot, where he had prepared rough notes and measurements at his instance and later on, on the basis of those rough notes and measurements, he prepared scaled site plan, which is Ex.PW4/A. PW23 Inspector Puran Chand has further stated that on 08/06/2010, on his call, Anwar had come to the PS and handed over to him three documents regarding SIM number of his mobile number 9953905326 and payment receipt of Rs. 250/ and Rs. 260/ and Rs.800/, which were taken into possession by him vide memo Ex.PW10/A. The documents Ex. PW10/A, B and C are the same, which were taken into possession from Anwar.
PW23 Inspector Puran Chand has further deposed that during investigation, he collected photographs from photographer Crime Team and on 09/06/2010, he also collected the call detail record and customer application form of mobile no. 9716084995 of deceased from Aircell company alongwith photocopy of ID proof of deceased Satish. Call details Record is Ex.PW15/B, customer application forms is Ex.PW15/C and ID proof of deceased Satish is Ex.PW15/D. On 10/06/2010, PW23 had also collected CDR of mobile phone number 9953654659 of Umesh Kumar alongwith customer application form and photocopy of voter I/card. He also collected call details record of mobile SC No. 40/1 29 number 9953905326 of Anwar alongwith customer application form and photocopy of Voter I card, which are Ex.PW14/A, Ex.PW9/A, Ex.PW9/B and Ex.PW14/D and D1.
PW23 Inspector Puran Chand has further stated that on 23/06/2006, he had moved an application Ex.PW23/E before the concerned doctor for seeking subsequent opinion regarding the injuries with the recovered PVC Pipe and on completion of investigation, he filed the chargesheet.
PW20 Sh. Neeraj Gaur, the then Ld MM has stated that on 12/04/10, an application for conducting TIP was marked to him by Ld Link MM and he fixed the same for 15/04/2010 vide his endorsement on application Ex.PW20/A. On 15/04/2010, IO moved an application for cancellation of TIP on the ground that witness Deepak was not available and accordingly, he made his endorsement regarding cancellation of TIP on application Ex.PW20/B. PW20 has further deposed that again fresh application was moved before him by IO for fixing the TIP and he accordingly fixed the same for 28/04/2010 and his endorsement on the application is Ex.PW23/C. On 28/04/2010, he conducted the TIP proceedings of the case property Ex.PW1/P , which was signed by PW Deepak at point A. One copy of TIP proceedings was given to IO vide his endorsement Ex.PW20/D. Ld defence counsel has contented that wrist watch was produced before Ld MM in unsealed condition, hence TIP of the same and further identification by PW1 Deepak of the same is of no consequence. Ld defence has further contented that PW1 Deepak has stated in the cross examination that he had identified the articles belonging to his brother, whereas according to TIP proceedings, PW1 Deepak, stated before the concerned MM, that wrist SC No. 40/1 30 watch, mobile phone and pant are belonging to him, so there is possibility that these articles were belonging to PW1 Deepak and were planted against accused persons.
In my view, PW1 Deepak has explained that he got stitched pant and shirt from Meerut for himself, but later on he gave it to his deceased brother Satish Sharma, so there is no contradiction about the identity of the case property recovered from the possession of accused persons i.e. mobile phone, wrist watch and pant.
According to the deposition of police witnesses PW18 HC Sheshdhar, PW21 Rakesh Duhan and PW22, Inspector Jogender Joon, Mobile phone make Nokia 1650 and pant were sealed in a pullanda, at the spot after recovery from the accused persons and their testimonies are unshaken, in this respect.
Neither PW1 Deepak has stated that the case property was shown to him in the PS before joining the TIP nor it is suggested that to the police officials that case property after breaking the seal of the pullandas was shown to PW1 Deepak before he joined the TIP of the case property, so PW1 Deepak cannot be disbelieved on this aspect.
PW4 SI Manohar Lal has stated that on 07/05/2010, he was posted as draughtsman in North West District and on that day, on request of IO, he reached at the spot i.e. near railway line opposite C and D block, Haiderpur, Shalimar Bagh and there at the instance of the IO, he prepared rough notes and took measurements, on the basis of which he prepared scaled site plan Ex.PW4/A and thereafter he destroyed the rough notes and measurements.
According to the deposition of witnesses, mobile phone of deceased Satish was recovered from accused Mohd Alam. Deceased Satish was having SC No. 40/1 31 mobile number 9716084995 having IMEI no. 354183/03/088/630/9. According to the report Ex. PW15/A, this mobile phone number was belonging to deceased Satish resident of 443, Jahangirpuri, Delhi and according to call details record of this mobile phone, lastly it was found activated till 8.22 pm on 20/03/10. PW15 Sh Shishir Malhotra, Nodal officer, has proved the customer application form of Satish Sharma As Ex.PW15/C and photocopy of his voter I card Ex.PW15/D. According to the seizure memo, of the mobile phone, which was recovered from the possession of accused accused Mohd Alam, it was having the same IMEI number, which was of the mobile phone of deceased Satish Sharma as this IME I number is appearing in call details of mobile phone of deceased Satish Sharma Ex.PW15/E. The contention of Ld defence counsel that last digit of this IMEI number as mentioned in seizure memo Ex.PW18/C of mobile phone, recovered from accused Mohd Alam is not similar to the IMEI number on the call details of deceased Satish and accused Mohd Alam is not forceful in any manner because the IMEI number of mobile set, which was being used by deceased Satish and IMEI number of this mobile set,which was recovered from accused Mohd Alam is the same, so the recovery of mobile phone from accused Mohd Alam, which was belonging to deceased Satish cannot be doubtful, in any manner.
PW15 Shishir Malhtora has not been cross examined in any manner about the call details , customer application form and photocopy of voter I card of Satish Sharma. PW15 has also produced the certificate u/s 65(B)(4)(c) of Indian Evidence Act, which is Ex.PW15/A, so from the unrebutted and unshaken testimony of PW15, prosecution has proved beyond reasonable doubts that mobile phone of deceased Satish Sharma having IMEI number SC No. 40/1 32 334183/03/088/630 was recovered from the possession of accused Mohd Alam on 28/03/2010, which was also having the same IMEI no.
In respect of the mobile phone number 9953654659, which accused Mohd Alam was using by inserting the same in this mobile phone make Nokia 1650 of deceased Satish Sharma, PW12 Ashok Kumar has stated that he was running a shop of TV repair and mobile phone's spare parts of vodafone, Nokia and Airtell companies at I74, DDA market, Jahangir Puri, On 31/01/10, one Umesh Kumar, who was known to him previously, had come to his shop and he brought one mobile phone of Nokia 1650 and got changed the body of the same, and he also asked for a sim connection of Vodafone and handed over to him his identity proof , i.e. copy of voter I card and one photo on the application form and told that he will collect the same card later on. Thereafter, he did not come back. He used the sim card, which was issued in the name of Umesh Kumar for 23 days in his mobile phone make Nokia 1650 and one day, accused Alam came to his shop on 21/03/2010 and asked for a sim card. He also produced one mobile phone make Nokia 1650 and also got changed the body of the same. He handed over to him copy of voter I card and photo and also gave his mobile number to PW12 Ashok. PW12 Ashok Kumar has further deposed that he handed over the activated sim card to accused Mohd Alam and thereafter he did not deposit the documents given to him by accused Mohd Alam.
PW12 Ashok Kumar has further deposed that police came to his shop on 21/04/10 or 22/04/2010, and had taken into possession the documents, which were handed over to him by accused Mohd Alam. PW12 has also identified the documents given by Umesh, which are Ex.PW9/A, PW9/B and documents given by accused Mohd Alam i.e. photocopy of voter I SC No. 40/1 33 card alongwith his photograph as Ex.PW12/B and he also identified the seizure memo as Ex.PW12/A, vide which documents of Mohd Alam were seized.
PW12 has also stated that mobile number of sim card was 9953654659 and accused Mohd Alam had given his contact number 9953905326. Nothing came out from the cross examination of this witness to disbelieve his testimony and in the cross examination, PW12 has admitted that he handed over the activated sim card to accused Mohd Alam inadvertently as the person, to whom it was issued, had not collected the sim card till that time. So from the deposition of PW12 Ashok, it is proved that sim card, which was provided by PW12 on the documents of Umesh Kumar was given to accused Mohd Alam because Umesh Kumar did not collect the same and this fact has been corroborated by PW9 Umesh Kumar , who has stated that he had visited the shop of Ashok Kumar in the month of February 2010 and had given his voter I card with his photo to the shopkeeper for obtaining the sim card. It was sim of 9811285466 and mobile number 9953654659 was not issued to him.
According to the case of prosecution, PW9 Umesh Kumar has not supported the case of prosecution, so he has been cross examined. In the cross examination, PW9 has identified the documents given by him to Ashok Kumar for obtaining sim card as Ex.PW9/A and Ex.PW9/B. PW9 has further deposed that Shopkeeper Ashok Kumar told him that photocopy of the I Card was not clear, hence he was asked to provide another copy of voter I card, so he handed over the second copy of Voter I card to Ashok Kumar. In such circumstances believing the deposition of PW9 Umesh Kumar, it is proved that on the documents of Umesh, PW12 Ashok Kumar, owner of Mittal communication obtained mobile phone no. 9953654659, which he handed SC No. 40/1 34 over to accused Mohd Alam on the documents given by accused Mohd Alam, but infact this number was got issued by PW12 Ashok Kumar in the name of Umesh Kumar, so PW12 to save his skin has deposed that inadvertently he handed over the activated sim card to accused Mohd Alam. So, from the deposition of witnesses, prosecution has also been able to prove beyond reasonable doubts that mobile phone no. 9953654659 was obtained by accused Mohd Alam on 21/03/2010, from PW12 Ashok Kumar, owner of Mittal communication and at that time, he had also given his contact number 9953905326.
PW17 Ct Ramesh has stated that he was posted at PS Shalimar Bagh on 21/04/2010 and on that day, he joined the investigation of this case with IO Inspector Puran Chand. One Ashok son of Laxmi Narain came to PS and handed over the photocopy of one I card, which was in the name of Mohd Alam son of Mohd Aslam and the same was seized vide memo Ex.PW12/A. PW17 has also identified the photocopy of voter I card as Ex.PW12/B. Ld defence counsel has contented that according to PW12, police came to his shop on 21/04/2010 and on 22/04/2010, police had taken into possession the documents, which were given to him by accused Mohd Alma, which shows that documents were taken into possession by the police at the shop of PW12 Ashok Kumar, whereas according to PW17, the documents were taken into possession in PS and PW23 Inspector Puran Chand has nowhere deposed as to where the documents relating to accused Mohd Alam were seized either at the shop of PW12 Ashok Kumar or in the PS, so the seizure of documents relating to accused Mohd Alam is doubtful.
In my opinion, this is a minor contradiction and is not affecting the testimony of the witnesses, in any manner because PW12 Ashok Kumar SC No. 40/1 35 has further clarified in the cross examination that he had noted down the date, on which he had handed over the sim card to accused Mohd Alam with mobile phone number and the same is appearing in red encircled portion at point X on the back of Ex.PW12/B i.e. date 21/03/10, V9953654659. PW12 has further disclosed that he recorded the date and mobile number of the sim on the back of Ex.PW12/B, at the same time, when he handed over the number to accused Mohd Alam, so only the point as to whether the documents were seized in the PS or at the shop of PW12 Ashok Kumar, the same cannot be doubted.
PW12 Ashok Kumar has denied the suggestion that he had mentioned the date and mobile phone number of the sim card on the back of the Ex.PW12/B at the instance of police, so there is nothing to disbelieve, the deposition of PW12 Ashok Kumar, in this respect and it is proved beyond reasonable doubt that mobile phone number 9953654659 was handed over to accused Mohd Alam on 21/03/10.
PW16 Mantoo Sahani has stated that he was having one mobile phone of 9716327942 of Aircell company, at the time of purcahse of said mobile, ID Proof of his friend Manohar Pandit was given, who was working with him and living in Jahangirpuri as tenant. He had given his ID proof as PW16 was not having any ID Proof with him of Delhi. One Alam also used to work with him as labour and he had worked with him only for 25 days and at that time, he was not having any mobile phone with him.
PW16 has not supported the case of prosecution, so he has been cross examined by Ld APP, wherein PW16 has admitted that in the month of February and March 2010, accused had worked with him but had denied the suggestion that on 22/03/2010, accused Alam had called him and told him about his new phone number i.e. 9953654659. PW16 has also denied that SC No. 40/1 36 accused Mohd Alam had called from his mobile phone number and had demanded Rs. 500/ as his dues. PW16 has been confronted with his statement Ex.PW16/A, but again he has admitted that he did not receive any phone call from accused Alam after this, which proves that he received call on 22/03/2010, at about 5.35 pm, accused Mohd Alam disclosed to PW16 about his new phone number and also demanded Rs.500/ as dues. Accused Alam has also been identified by PW16 before the Court.
So from the deposition of PW16 prosecution has also been able to prove that on 22/03/2010, accused Alam was having phone number 9953654659. This witness has not been cross examined by Ld defence counsel, in any manner, hence testimony of this witness is unrebutted and unshaken.
According to PW10 Anwar, the mobile number 9953905326 was belonging to him. PW10 has deposed that that accused Alam is his grandson from his village relations and accused was working with him and except loading and unloading of goods. accused Alam was not doing any other work and accused used to meet him daily and they also used to talk on phone with each other. PW10 has further deposed that that police had obtained two bills of his mobile number and were taken into possession vide seizure memo Ex.PW10/A and he has also proved the copy of payment receipt of mobile bill as Ex.PW10/B and Ex.PW10/C and Ex.PW10/D. This witness have also not supported the case of prosecution, so PW10 has also been cross examined by Ld APP, wherein he has not supported the case of prosecution that accused Alam had made extra judicial confession before him and PW10 has been confronted with his statement Ex.PW10/E. PW10 has admitted that on 23/03/10, he had called accused Mohd SC No. 40/1 37 Alam, on his mobile for unloading of goods and the number might be 9953654659. PW10 has further admitted that police had made inquiries from him about mobile phone no. 9953654659 and he had told that it was of accused Alam. PW10 has further deposed that on 24/03/10, accused had also made a telephone call from the above said mobile no. 9953654659 to go to gym. So, in the cross examination, PW10 has supported the case of the prosecution. Hence in all, PW10 has denied the case of prosecution regarding Extra Judicial confession also made by accused Mohd Alam before him, but has admitted the case of prosecution to the extent that accused Mohd Alam had made a call from his mobile phone no. 9953654659.
PW14 Israr Babu has proved the summoned record of mobile phone of 9953905326 of Anwar and 9953654659 of accused Mohd Alam. According to the record, mobile number of accused Mohd Alam was issued in the name of one Umesh Kumar, on the basis of document Ex.PW9/A and B. Call details of this mobile phone of accused Mohd Alam from 01/01/10 to 10/06/10 are Ex.PW14/A, certified by Nodal Officer captain Anuj Bhatia at point A. PW14 has also produced the documents of Anwar on which the above mobile phone number was issued to him, copy of application is Ex.PW14/B and copy of Pan Card is Ex.PW14/C. PW14 has also produced the call details record of mobile phone from 01/01/10 to 10/06/10, which are Ex.PW14/D and Ex.PW14/D1. He has also produced the certificate u/s 65B(4) (3) regarding the call details of both the mobile phones as referred above, Ex.PW14/E and Ex.PW14/F. Nothing came out from the cross examination of PW14 Israr Babu to disbelieve his testimony. He has proved the record as maintained by company and has no motive to depose falsely against the accused persons. SC No. 40/1 38 According to the call details Ex.PW14/A of mobile number of accused Mohd Alam, he had received calls on 23/03/2010, from mobile phone of Anwar , which were incoming calls and had made two calls on 24/03/2010, which were out going calls.
According to the call details of the mobile phone number 9716084995 of deceased Satish, IMEI number of this phone was 354183030886300, whereas according to the call details of mobile no 9953654659 issued in the name of Umesh Kumar, which was handed over to accused Mohd Alam by PW12, Ashok Kumar, owner of Mittal communication, IMEI of phone of this number was 354183030886300, so prosecution has been able to prove from the call details record Ex.PW15/B and Ex.PW14/A that the mobile phone of deceased Satish was in possession of accused Mohd Alam, which he got activated on 21/03/2010, whereas Satish was murdered in the night of 20/03/2012.
Regarding the recovery of wrist watch from the accused Saddam, Ld defence counsel has contended that PW1 Deepak has identified the wrist watch according to the TIP proceedings Ex.PW1/B as his own, so it cannot be said that wrist watch was belonging to deceased Satish. Ld defence counsel has further contended that wrist watch was not sealed in a pullanda at the time of its recovery from accused Saddam, hence there was possibility of plantation of wrist watch against accused Mohd Saddam.
To my mind, the same is not material because statement of PW1 Deepak was recorded on 22/03/10 u/s 161 Cr.PC, wherein it was disclosed by him that his brother Satish Sharma, when had left the house on 20/03/10, was having one mobile phone no. 9716084995, one wrist watch, some money and he was wearing cream colour shirt and black colour stripe pant, whereas SC No. 40/1 39 accused persons were arrested on 28/03/2010, so the belongings of deceased Satish, which he was having at the time, when he left the house were already disclosed to the police by PW1 Deepak, hence it cannot be said that these articles have been planted upon the accused persons, hence the contention of Ld defence counsel is not tenable, in any manner.
One black colour pant was recovered from accused Iqhlak and he further got recovered one pipe in furtherance of his disclosure statement, from nearby the place of incident, which was sealed and seized, in this case. PW1 Deepak has also identified this pant before the Court and also during the TIP proceedings.
According to PW13 Dr. K. Goyal, who conducted the postmortem of dead body of Satish on 22/03/10, on general examination, he observed certain external injuries. There were three rail road pattern bruises, transversely and slightly oblique placed over left gluteal region of sizes 7 x 1.25 cm to 11x 2.5 cm. The whole penis and scrotum were extensively bruised and swollen and on cut sections blood and clots were present in the scrotal sacs with mark bruising of testies. All bruises were red in colour.
According to PW13 Dr. K. Goyal, all the injuries were antemortem in nature caused by blunt force impact. Rail Road pattern bruises were caused by blunt cylindrical object. Penile and scrotal injuries were caused by kicks and/or blows. The cause of death was vasovegal shock as a result of testicular injuries and sufficient to cause death in ordinary course of nature. Mode of death was homicidal. Time since death was about 3839 hours.
PW13 Dr. K. Goyal has further deposed that blood sample of the deceased was preserved and it was sealed and handed over to police. He had also prepared his detailed report Ex. PW13/A. SC No. 40/1 40 PW13 has further deposed that later on, an application was moved dated 10/06/10 by the Investigating Officer Inspector Puran Chand for obtaining subsequent opinion regarding the weapon of offence and he produced one sealed packet sealed with the seal of JS. On opening the packet, it was found containing one blue colour PVC pipe of 24½ inch length and diameter of 0.75 inches. According to PW13, on the rail road pattern bruises mentioned in PM report Ex. PW13/A were possible by this pipe or similar such type of other object. After examination, PVC pipe was resealed with the seal of KG and was handed over to ASI Azad Singh of PS Shalimar Bagh alongwith sample seal. His report in this respect is Ex. PW13/B. PW13 has also identified PVC pipe, which was examined by him for giving subsequent opinion as Ex.P5 and sample seal as Ex.P6.
In the cross examination, PW13 Dr. K. Goyal has denied the suggestion that he gave his report Ex.PW13/A on the basis of alleged history. So nothing came out from the cross examination of PW13 to disbelieve his testimony, which also corroborates with the injuries sustained by deceased Satish Kumar, which were possible by PVC pipe got recovered by accused Iqhlak on 28/03/10, after his arrest in furtherance of his disclosure statement from nearby the place of incident.
According to the statement of accused Mohd Alam recorded u/s 313 Cr.Pc, accused Alam has admitted that he used to work with PW16 Mantoo Sahani and had worked with him for 25 days . He has also admitted that he is grand son of Anwar and was working with him for loading and unloading of goods. So the identity of witness Mantoo Sahani and Anwar are not in dispute and further that they were knowing accused Mohd Alam.
In the statement recorded u/s 313 Cr.PC, none of the accused has SC No. 40/1 41 given any explanation about the possession of mobile phone, wrist watch and pant of deceased by them nor any of the accused has examined any defence witness.
In view of the above discussion, prosecution has been able to prove, beyond reasonable doubts the recovery of mobile phone from possession of accused Mohd Alam on 28/03/2010, belonging to deceased Satish Kumar having same IMEI number, which has been proved from the call details of mobile phone number of Satish and call details of vodafone mobile number, which accused Mohd Alam was using . According to the deposition of Deepak, Satish had left the house on 20/03/2010, at about 11.00 pm night, whereas according to the call details of number of vodafone recovered from accused Mohd Alam and also from the deposition of PW12 Ashok, owner of Mittal communication, this number was given to accused Mohd Alam on 21/03/2010, which was actually in the name of Umesh and further from the call details, it is proved that from this vodafone number, calls were made to Anwar, who was known to accused Mohd Alam. The testimonies of witnesses regarding the recovery of mobile phone from the possession of accused Mohd Alam are inspiring confidence and nothing came out to disbelieve their testimony, in any manner.
In support of same, I rely upon 2010 CRI. L.J. 85 titled as Ramesh Kumar alias Rameshwar Vs State, wherein it has been held that "
the testimony of police officers who have proved information given by appellant which led to recovery of articles cannot rendered untruthful merely because public witness was not associated with the recovery."
It has been further held that "recoveries made in pursuant to disclosure statement of accused is chain of circumstances, where from it can SC No. 40/1 42 safely be said that appellant was murderer."
The mobile phone has been identified during TIP proceedings by PW1 Deepak before Ld MM and merely that he had stated before Ld MM that the articles i.e. mobile phone, wrist watch and pant belongs to him, does not mean that the same are actually belonging to him because it has been proved from the call details record and application form that mobile phone having IMEI no. 354183030886300 was being used by deceased Satish, so the contention of Ld defence counsel that these articles have been planted upon the accused persons is not forceful, in any manner.
In support of this, I further rely upon 2010 CRI.L.J.3675 titled as Suresh Vs State (NCT) of Delhi, wherein it has been held that "further recovered articles have been correctly identified then the same is credible and TIP successfully conducted, which inspires confidence and proved that fruit of crime was recovered at the instance of accused."
It has been held in 2009 CRI.L.J.1070 titled as Chandramohan Shau @ Chandramohan Saw V. State of Orissa that "time proximity between offence of murder committed and entry of truck into premises was very close then the presumption could be drawn that he killed deceased persons, threw them on side of road and took away vehicle with tyres loaded on it, hence chain of circumstances was complete to prove the charge of murder , robbery and forgery."
In this case, deceased Satish left at about 11.00 pm, and according to the PM report, which was done at about 3.15 pm on 22/03/10 time since death was 3839 years, which comes in between 11 to 12 pm on 20/03/2010 and accused Mohd Alam obtained vodafone number on 21/03/2010 itself and from the call details, it is proved that accused Mohd Alam was using the SC No. 40/1 43 mobile phone of deceased Satish having IMEI No 354183030886300 on 21/03/10 itself. So the proximity of time is too closed and it leads to irresistible inference that accused in furtherance of their common intentuion with coaccused persons had committed robbery and murder of accused Satish.
The prosecution has also been able to prove beyond reasonable doubts, recovery of one wrist watch belonging to deceased Satish from accused Mohd Saddam, which has also been identified during TIP by PW1 Deepak. Accused Mohd Saddam has not explained about the possession of wrist watch with him, hence this is also leading to the irresistible inference that the accused in furtherance of their common intention with coaccused persons, committed robbery and murdered of Satish.
The pant belonging to Satish was recovered from accused Iqhlak, which has also been identified during the TIP proceedings by PW1 Deepak and he has also explained in the cross examination that pant, was actually belonging to him, but it was given to his brother Satish. Accused Iqhlak has also not explained about the possession of pant of Satish, with him. In furtherance of his disclosure statement, accused Iqhlak also got recovered the PVC pipe with which Satish was beaten at the time of robbery due to which he died.
It has been held in 2010 CRI.L.J. 85 Ramesh Kumar alias Rameshwar Vs State that " if articles is not visible to naked eye and hidden in bushes and appellant himself retrieved same from within bushes then the recovery were not tainted and inspire confidence, but for accused the Investigation Officer could not have laid his hand thereon."
The prosecution has also been able to prove beyond reasonable SC No. 40/1 44 doubt from the deposition of PW13,Dr. K. Goyal, who gave specific opinion regarding this PVC pipe that the rail road pattern bruises mentioned in postmortem report Ex.PW13/A were possible with pipe or similar such type of object.
PW8 SI Devender Singh, Incharge Crime team has also observed the marks of beating on the back of the dead body. It has also held in 2010 CRI.L.J. 3675 titled as Suresh Vs State, that "if weapon of offence got recovered by the accused was possible weapon of offence is also, though very weak, further incriminating evidence."
It has been further held that " motive of accused was to murder deceased with object of committing theft, hence the said evidence was sufficient to hold that prosecution has proved its case against accused."
In such circumstances, the prosecution has been able to complete the chain of circumstantial evidence against accused persons to the extent that mobile phone of deceased Satish was recovered from accused Mohd Alam on 28/03/2010, which he got activated on 21/03/2010, whereas Satish was murdered in between 11 to 12 night on 20/03/10. secondly, on 28/03/2010 also one wrist watch was also recovered from possession of accused Mohd Saddam belonging to deceased Satish for which no explanation has been given by accused Mohd Saddam about the same. Similarly, no explanation has been given by accused Mohd Alam about the possession of Mobile phone. Thirdly, pant belonging to deceased Satish was also recovered from accused Iqhlak on 28/03/2010 and he also got recovered one PVC pipe, from the hereby the place of occurrence which was used as a weapon of offence as testified by PW13 Dr. K. Goyal, who conducted the postmortem on the body of deceased Satish that the rail road pattern bruises could be possible with the said PVC SC No. 40/1 45 pipe and gave his specific opinion, in this respect.
The recovered articles from these accused persons have been identified by PW1 Deepak, during TIP proceedings. The mobile phone and pant were sealed and seized at the time of recovery. Accordingly, this complete chain of circumstantial evidence against accused persons, which taken together is sufficient to lead the irresistible inference that the accused persons while committing robbery gave beating to Satish with intent to commit his murder, which is further fortified from the deposition of PW13 Dr. K. Goyal, who has stated that penile and scrotal injuries were caused by kicks and/or blows and the cause of death was vasovegal shock as a result of testicular injuries, which were sufficient to cause death in ordinary course of nature. Causing injuries on the private parts itself shows that the accused persons were wanting to commit murder of Satish. In such circumstances, all the three accused persons while committing robbery acted in furtherance of their common intention and caused injuries with PVC pipe and also on the private part of the deceased Satish, which were sufficient to cause death in the ordinary course of nature.
In support of same, I rely upon 2010 CRI.L.J. 1713 titled as Ishwawri Prasad Sahu Vs State of Chandigarh, wherein it has been held that "circumstances taken together sufficient to lead irresistible inference that accused alone entered into house of deceased and caused fatal injuries resulting into her death and has removed ornaments from her body."
Ld defence counsel has further contended that prosecution has not been able to prove any motive on the part of the accused persons to commit murder of Satish, hence in absence of any motive, prosecution has not been able to prove the offence of murder committed by accused persons.
The contention of Ld defence counsel that no motive has been SC No. 40/1 46 attributed on the part of the accused persons to commit murder of deceased Satish by the prosecution is also not forceful in any manner, as it has been held in 2010 CRI.L.J. 3675 titled as Suresh Vs State that "motive of accused was to murder deceased with object of committing theft." This judgment is applicable to the facts and circumstances of the present case. Otherwise also the accused persons in furtherance of their common intention committed robbery and caused fatal injuries to the deceased with intent to commit murder, who died thereafter, at the place of occurrence itself.
It has been held in 2010 CRI.L.J 1316 titled as Rijo V. State of Kerala, that "intention or motive of accused established in view of ferocious attacks on victims, number of injuries inflicted and manner in which it was inflicted and gravity of those injuries, the acts of accused cannot escape falling under Cl.3 or cl.4 of S.300 of IPC."
According to PW13, Dr.K.Goyal, on external examination there were three diffused bruises, coalescet and scattered all over the chest and back of chest, abdomen all over at places, multiple discrete bruises with over lying abrasions scattered all over four limbs at places. There were three rail road pattern bruises, transversely and slightly oblique placed over left gluteal region of sizes 7 x 1.25 cm to 11x 2.5 cm. The whole penis and scrotum were extensively bruised and swollen and on cut sections blood and clots were present in the scrotal sacs with mark bruising of testies. All bruises were red in colour. These injuries itself shows that deceased Satish was beaten mercilessly with the PVC pipe and also with kicks and blows all over his body and also on his private parts, which left no possibility of survival of deceased Satish. All these injuries were antemortem in nature and were SC No. 40/1 47 sufficient to cause death in ordinary course of nature and were caused by blunt force impact, so motive itself as held in judgment relied upon, is evident from the injuries and act of the accused persons.
In view of the above discussion, prosecution has been able to complete the chain of circumstantial evidence against the accused persons beyond reasonable doubts. Accordingly, accused all three are held guilty and are convicted for the offence u/s 392 read with section 34 of IPC and also held guilty and convicted for the offence punishable u/s 302 of IPC read with section 34 of IPC. As the accused persons have been convicted for offence of robbery hence they are not being held guilty and convicted for offence u/s 411 of IPC, separately.
Announced in the open court On 26th April, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track court, Rohini SC No. 40/1 48 SC No. 40/1 49