Delhi District Court
State vs . Shyano Varghese on 20 September, 2013
State Vs. Shyano Varghese
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 42 of 2012
ID No. 02401R0288452012
AND
SC No. 64/2012
ID No. 02401R0437832012
FIR No. : 40/12
Police Station : Rajinder Nagar
Under Section : 302/201 IPC
State
Versus
Shyano Varghese
S/o Sh. Koshi C.G
R/o (H) Changaram Pallil Mannoor
Anchal, Kollam (Kerala).
..........Accused
Date of Institution : 17.06.2012
Date of Committal of case : 06.08.2012
Date of judgment reserved on : 11.09.2013
Date of judgment : 20.09.2013
SC No. 42/12 Page 1 of 51
SC No. 64/12
State Vs. Shyano Varghese
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Ashwin Vaish, Advocate, counsel for the accused.
JUDGMENT:
1. Briefly stated facts of prosecution case are that on March 14, 2012 at about 8.20 PM, Amit Madnani informed the local police of PS Rajinder Nagar from his mobile phone bearing No. 9971033070 that one dead body of a female was lying in a basement of property No. 1/100 Old Rajender Nagar, Delhi. The said information was recorded vide DD No. 25A (Ex.PW14/A) and same was assigned to ASI Om Parkash (PW14) who along with const. Devender left for the place of occurrence.
(i) On reaching there, dead body of a female was found in the basement of the said property. Amit Madnani (PW9) disclosed her name as Ms. Swapna. Though circumstances of the place of occurrence were found normal, yet crime team was summoned at the spot and spot was got photographed. Dead body was sent to Mortuary of MAMC hospital and it was got preserved for 72 hours initially, thereafter, for further 72 hours. On March 20, 2012 after inquest proceedings, dead body was sent for post-
mortem. Autopsy report was received on March 23, 2012 and as per the report, death was caused due to combined effect of head injury and manual strangulation. All injuries were found ante-mortem and fresh before death. On receipt of autopsy report, endorsement was made on DD No. 25A (ExPW4/A) and an FIR for the offence punishable under Section 302 IPC was got recorded.
SC No. 42/12 Page 2 of 51 SC No. 64/12State Vs. Shyano Varghese
(ii) It was alleged that on March 23, 2012, place of occurrence was again searched and during search, one mobile phone Model G-Five 1700 was recovered from the drawer of the table of the basement and from its CDR and CAF, its connection number was revealed as 9650623705 and same was found registered in the name of Mr. N Balakrishanan. It was alleged that Mr. N. Balakrishanan had also given another mobile phone having connection No. 9560345002 to the deceased and on checking the location of said phone was normally found in Kilori village, Bhagwan Nagar, Delhi. Accordingly, constable Satender was sent along with photographs of the deceased to make enquiry about the deceased. It was revealed that during enquiry, Gautam Rakshit identified the deceased as Rekha Joy and informed that she was the wife of his tenant Pankaj Bhatt. He also furnished the two mobile numbers of Pankaj Bhatt i.e. 8750152415 and 9717505475. Both phones were found switched off. However, from the CDR, phone No. 9650568004 was surfaced and contact was made on the said phone from Pankaj Bhatt who informed that he married with Rekha Joy in the year 2008. He was summoned to join the investigation on March 25, 2012. Accordingly, he joined the investigation and he also identified the photo of deceased and informed that his wife Rekha Joy was missing since March 9, 2012.
(iii) Constable Pratap was sent to the native village of deceased and on enquiry her real name was revealed as Marry Methew.
(iv) It was revealed that on analysing the CDR of mobile No. 9560345002, it was revealed that the said phone was in touch with phone No. 9650628229 several times on March 9, 2012 and location of both phones was lastly found between 6.20 PM to 6.40 PM at Rajender Nagar.
SC No. 42/12 Page 3 of 51 SC No. 64/12State Vs. Shyano Varghese However, the latter phone i.e. 9650628229 was found switched off and on checking it was found that on its IMEI number, another connection No. i.e. 8800279759 was in operation w.e.f March 10, 2012. On analysis the CDR, it was revealed that the said two numbers were in operation on the same IMEI number at different time and both numbers were found in contact with mobile No. 7838878818. On suspicion, call was made on the said number on March 27, 2012 and call was attended by Jino James who disclosed that phone No. 965062829 and 8800279759 belonged to Shyano Varghese. Accordingly, a raid was conducted at the residence of Shyano Varghese on March 27, 2012.
(v) It was alleged that accused Shyano Varghese was apprehended while he was going towards Sector 31-32, Gurgaon. During investigation, his disclosure statement was recorded and pursuant to his disclosure statement, he got recovered one laptop make Compaq and one ATM card of Axis bank. Thereafter, on March 28, 2012, accused led the police party to Sector 30, Gurgaon and pointed out green land and got recovered one mobile SIM Card of Airtel of deceased having connection No. 9560345002, same was seized by the police. However, mobile instrument of deceased could not be traced out.
(vi) During investigation, police also seized the footage of CCTV of Ganga Ram Hospital road for the period from 6 PM to 7 PM dated March 9, 2012 wherein accused was seen to travel in a cycle rickshaw.
(vii) During investigation, CDR of relevant phone numbers were seized. Exhibits were sent to FSL. Hard disk of CCTV was also seized and same were also sent to FSL.
SC No. 42/12 Page 4 of 51 SC No. 64/12State Vs. Shyano Varghese 2 After completing investigation, challan was filed against the accused for the offence punishable under Section 302/201 IPC.
3. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Court of Sessions on July 31, 2012. Thereafter, case was assigned to this Court on August 6, 2012. Accordingly, case was registered as Sessions Case No. 42/2012. Thereafter, investigating agency filed a supplementary charge-sheet against the accused and after complying with the provisions of Section 207 Cr. P.C, said challan was also committed to the Court of Sessions on October 04, 2012 and same was also assigned to this Court on October 8, 2012. Accordingly, same was registered as SC No. 64/12. Supplementary challan was clubbed with the main case on October 31, 2012.
4. Vide order dated September 3, 2012, a charge for the offence punishable under Section 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 24 witnesses:-
PW1 Sh. Jino James, friend of accused
PW2 Sh. Chandra Mohan Singh, proved the Metro smart
card used by accused
PW3 Sh. Pankaj Bhatt, husband of deceased
PW4 SI Mahesh Kumar, draughtsman, proved the scaled
site plan
PW5 HC Rajender Singh, duty officer, proved the FIR and
DD No. 21 A and DD No. 22A.
SC No. 42/12 Page 5 of 51
SC No. 64/12
State Vs. Shyano Varghese
PW6 Const. Dinesh, member of Mobile Crime Team, proved
the photographs
PW7 Const. Bharat Sharma, formal witness
PW8 Sh. Sunil Malhotra, Asstt. Vice President, Axis Bank
Rajender Nagar Branch, formal witness
PW9 Sh. Amit Madnani, landlord of the place of occurrence
PW10 Const. Devender Kumar, formal witness
PW11 Const. Prasannan, deposited the exhibits at FSL,
Rohini
PW12 Sh.Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd.,
proved the CDR of mobile phone of accused and
deceased
PW13 Const. Satpal, deposited the exhibits with FSL, Rohini
PW14 ASI Om Parkash, initial investigating officer
PW15 Sh. Manish Gupta, property dealer through whom
property was let out to the deceased
PW16 Const. Krishan Kumar, formal witness
PW17 Const. Pratap Chandran, formal witness
PW18 ASI Sunil Kumar, joined investigation with PW23
PW19 Insp. G. S. Sharma, joined the investigation with
PW23
PW20 Tulsi Das, supplied the footage of CCTV to SHO
PW21 Dr. Kulbhushan, proved the autopsy report
PW22 HC Rishi Pal, MHC(M)
PW23 Insp. Ramesh Chand, investigating officer
6. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all the incriminating evidence led by the prosecution and submitted that he was arrested on March 26, SC No. 42/12 Page 6 of 51 SC No. 64/12 State Vs. Shyano Varghese 2012 from his office and thereafter, he was taken to the office of Special Staff, Darya Ganj where he was confronted with Pankaj Bhatt. It was submitted that he was not taken anywhere for the purpose of recovery and he was produced before the media as the alleged culprit. It was submitted that he was arrested from his office in the presence of Mr. Suresh K.A., Regional Manager and PW1.
7. In order to prove his innocence, accused examined Sh. Bhupender Singh, his office colleague as DW1 and Suresh K. A, Regional Manger of the company as DW2.
8. Thereafter, learned Additional Public Prosecutor moved an application under Section 311 Cr. P.C seeking permission to examine Mr. N. Balakrishanan, which was allowed vide order dated July 18, 2013 subject to the cost of ` 5000/- to be deposited with PM Relief Fund, Mr. N. Balakrishanan was examined as PW24. Thereafter, additional statement of accused under Section 313 Cr. P.C was recorded.
9. Learned counsel appearing for the accused sagaciously conducted that prosecution case is based on the circumstantial evidences against the accused and there is no ocular evidence against the accused. Learned counsel astutely submitted that there are not sufficient circumstantial evidence against the accused to prove his culpability beyond the shadow of all reasonable doubts. It was argued that there is neither any motive to commit the alleged offence nor there is any last seen evidence. It was argued that prosecution case revolves around the conversation taken place between mobile no. 9650628229 and 9560345002. As per the prosecution version, the mobile phone having connection no. 9650628229 belonged to the accused but prosecution failed SC No. 42/12 Page 7 of 51 SC No. 64/12 State Vs. Shyano Varghese to produce any cogent evidence in this regard. It was further contended that the next circumstantial evidence produced by the prosecution is that accused was found seen travelling in a rickshaw on March 9, 2012 at the Ganga Ram Hospital road between 6 PM to 7 PM. It was contended that during trial, prosecution failed to prove the footage of the said CCTV as the investigating officer had sent the hard disk containing the footage of CCTV to FSL Rohini for analysis but FSL refused to analysis the same. It was submitted that none of the witnesses identified the accused in the alleged CCTV footage. It was further contended that the next circumstantial evidence produced by the prosecution is that certain belongings of the deceased were recovered at the pointing out of accused from his room. As per prosecution version, one laptop of deceased and ATM card which was given to her by PW24 were recovered from his room. It was submitted that the said recovery is planted because the alleged recovery was shown to be affected on March 27, 2012 whereas accused was arrested from his office on March 26, 2013 and since then he was detained at the office of Special staff at Darya Ganj. It was further contended that from the testimony of defence witnesses it is established beyond doubt that accused was lifted from his office on March 26, 2012. It was argued that once accused establishes that he was arrested on March 26, 2012, it proves that investigating officer had manipulated the record by showing that accused was arrested on March 27, 2012 and the alleged recovery also lost its significance. It was further contended that even there is no iota of evidence to establish that the alleged recovered laptop belonged to deceased. It was contended that on March 14, 2012, the place of occurrence was inspected by crime team and at that time nothing abnormal circumstance was found at the place of occurrence. Nothing was found at the place of occurrence which may connect the accused with the alleged offence. It was contended that in the instant case, the conduct of several persons including Pankaj SC No. 42/12 Page 8 of 51 SC No. 64/12 State Vs. Shyano Varghese Bhatt, husband of deceased, landlord Amit Madnani, property dealer Manish Gupta, N. Balakrishanan and even deceased are quite mysterious. It was submitted that on the contrary, the conduct of accused is quite normal as there was no change in his daily routine. It was further argued that accused had been arrested in this case only on the ground that he had made certain calls at the mobile phone of deceased on March 9, 2012 and on the basis of said conversation, prosecution alleged that murder was committed on March 9, 2012 whereas autopsy report proved that murder had taken place approximately on March 12, 2012 and even so called foster father of deceased (PW24) informed the police that deceased had died on March 14, 2012. It was, thus, contended that even prosecution has failed to prove that the deceased had died on March 9, 2012. It was further submitted that investigating officer had not conducted the investigation fairly and impartially and even he did not hesitate to manipulate the record and fabricate the evidence.
10. Per contra, learned Additional Public Prosecutor refuted the said contentions and contended that the deceased had died on March 9, 2012 and from the CDR of the mobile phone used by accused, it is established that accused had visited the place of occurrence on March 9, 2012 at about 6.33 PM and thereafter he dis-continued his mobile phone connection and started using a new connection at the same instrument. It was contended that besides the CDR of the mobile phone of the accused, Metro smart card used by the accused proves that he had visited the place of occurrence on March 9, 2012. In addition to that the footage of CCTV also proves the prosecution case that he had visited the place of occurrence on March 9, 2012 and since then victim did not return to her house. It was submitted that accused was arrested on March 27, 2012 and submitted that no reliance should be placed on the deposition of DW1 and DW2 as they are SC No. 42/12 Page 9 of 51 SC No. 64/12 State Vs. Shyano Varghese colleagues of accused, thus, they are interested in the acquittal of the accused. It was further submitted that after the arrest, accused made a disclosure statement before the investigating officer and got recovered one laptop and ATM card of deceased from his room which further establishes the culpability of the accused.
11. I have heard rival submissions made by counsel for both the parties at length, perused the record carefully and gave my thoughtful consideration to their contentions.
12. Before dealing with the contentions raised by counsel for the parties, I deem it appropriate to highlight the conduct of persons who were in the epicentre of the matter in question.
Conduct of Pankaj Bhatt and deceased:-
13. Pankaj Bhatt entered the witness box as PW3 and in his deposition, he testified that his marriage with Rekha Joy @ Rekha was solemnized on November 27, 2008 and he also identified the deceased Swapna as Rekha Joy. From his testimony, it is clear that deceased had disclosed her name as Rekha Joy to PW3 and the marriage certificate was also issued in the name of Rekha Joy. It was a love marriage between them. Though PW3 deposed that he had given a mobile phone having connection No. 9560812025 to his wife i.e. deceased but deposed that she did not use to carry the said mobile phone while going outside the house. It is admitted case of prosecution that deceased was found using two mobile connections i.e. 9560345002 and 9650623705. Both the said mobile phones were given to her by one person named N. Balakrishanan i.e SC No. 42/12 Page 10 of 51 SC No. 64/12 State Vs. Shyano Varghese (PW24). This shows that deceased was not using the mobile phone which was given to her by her husband while going outside the house; rather she used to use the mobile phones which were given to her by PW24.
13. PW3 testified that deceased had left from her house on March 9, 2012 in the morning and when she did not return in the evening, he did not try to know about her whereabouts and for that he furnished an interesting explanation that he had not made any such effort because deceased was used to not to come house in nights. He further testified that when deceased did not return to house on the next day i.e. March 10, 2012, he did not make any effort to search her. Rather he went to his office. He further deposed that since March 10, 2012, he started living with his friends at Mehrauli and for that he had again given a very funny explanation that since there was none in the family to cook food, he had shifted to his friend house at Mehrauli. In his cross-examination, he further deposed that after 4-5 days, he had made a call to PCR to make inquiry whether his wife had met with an accident or not? But admitted that he did not visit any hospital either in Noida or Delhi nor he visited any police station. He further deposed that since he did not know the address of the company where his wife was working, he did not visit her office to know her whereabouts. This shows what kind of husband he was? He was not bothered which phone was being used by his wife. He was not concerned whether his wife returned to house or not. He had not shown his anxiety or curiosity to search her when she failed to return home.
14. Due to the said unnatural conduct of PW3, police also suspected him and interrogated him about the murder of deceased. He deposed that police had lifted him along with his friends from Mehrauli between 1 AM to 2 AM either on March 26, 2012 or March 27, 2012. He SC No. 42/12 Page 11 of 51 SC No. 64/12 State Vs. Shyano Varghese further deposed that he did not want to see the face of deceased as deceased had not told her actual name to him. He deposed that from the police, he came to know that her actual name was Merry Methew. .
15. The actual name of deceased was Merry Methew but she represented herself as Rekha Joy @ Rekha to PW3 and solemnized marriage with him in the assumed name of Rekha Joy. Even in the marriage certificate, her name is mentioned as Rekha Joy. When deceased came to the contact of Amit Madnani (PW9) and Manish Gupta (PW 15), she introduced herself as Swapna. Similarly, she also introduced herself as Swapna to PW 24, her so called foster father. Though her husband had given a mobile phone to her but she did not use to carry the said mobile phone while going outside from the house. Rather she had taken two mobile phones from PW24. As per the deposition of PW24, he had also given ATM card to the deceased and he also used to recharge mobile phone SIM cards. From the testimony of PW3, it appears that deceased told him that she was working in a company at Noida but she did not disclose the address of the company. Deceased had not informed her husband that she had taken any premise on rent at Old Rajender Nagar to run Ayurvedic massage centre. She used to go to meet PW24 N. Balakrishanan as and when he visited Delhi and used to spend time with him. As per the statement of Manish Gupta (Ex. PW15/D1) deceased had visited the tenanted premises with her maternal uncle N. Balakrishanan (PW24). Thus, deceased introduced PW24 to Manish Gupta as her uncle but he was not so. From the above, it becomes clear that deceased was using different names before different persons, for her mother she was Merry Methew; for her husband, she was Rekha Joy and for others, she was Swapna and she used to conceal many things from her husband and her landlord as per her convenience.
SC No. 42/12 Page 12 of 51 SC No. 64/12State Vs. Shyano Varghese
16. From the above, it becomes lucid that the conduct of PW3 Pankaj Bhatt as well deceased was suspicious and mysterious.
Conduct of landlord and property dealer :
17. PW9 Amit Madnani is the landlord of the basement where the alleged murder had taken place and PW15 Manish Gupta is the property dealer through whom the alleged basement was let out to the deceased. PW9 in his cross-examination admitted that police had called him more than 20 times in a week as they were suspecting him in the incident. During investigation police had also recorded the statement of both the said persons. Statement of Manish Gupta is Ex. PW15/D1. During interrogation he (PW15) disclosed the police that deceased approached him for a property on rent as she intended to open Herbal Treatment Centre. Accordingly, property dealer Manish Gupta took the deceased to Amit Madnani, landlord on March 9, 2012. He is also stated that at that time deceased was accompanied with N. Balakrishanan and basement in question was let out to the deceased and accordingly the key was handed over to her and she told the landlord that she would get done wooden work in the basement. However, when they appeared in the witness box, they set up a new case that deceased approached them initially in January 2012 and initially the basement of property No. 1/127 was let out to her and the key was handed over to her. Thereafter, she went to Kerala and returned from Kerala in the first week of March 2012 and at that time, she found that there was leakage in the said basement. Accordingly, landlord had let out another basement in property No. 1/100. Admittedly, no agreement was executed either in January 2012 or in March 2012 when the basement in question was let out. PW9 admitted in his cross examination that premise SC No. 42/12 Page 13 of 51 SC No. 64/12 State Vs. Shyano Varghese was let out on the monthly rent between ` 15,000- ` 16,000/- and deceased had given ` 5000/- as security but admitted that he had not taken the rent from the deceased for the period January to March, 2012. It is seldom to believe that in Delhi any landlord would not take the rent for a period of three months from unknown tenant. Thus, the version of landlord and property dealer, which they tried to set up during their deposition that deceased approached them in January 2012 appears to be non-digestible.
Conduct of N. Balakrishanan:-
18. N. Balakrishanan (PW24) is a resident of Tamil Nadu and he considered himself as foster father of deceased. As per his deposition, he met with deceased first time in 2006 at domestic airport, Delhi and at that time she was crying and she told him that she had missed her flight. Consequently, he had fellow feelings with her and advised her to go back to her house and had also given his mobile phone number stating her that she could contact him if required and he had also given ` 200/- to her on that day. Since then victim used to make a call on his mobile phone and started talking casually and thereafter whenever he used to visit Delhi, deceased used to come to meet him. She used to meet him at Karol Bagh and whenever she asked for anything, he used to give her as he used to treat her as affectionate daughter. It is pertinent to state that that deceased was 22 years old in 2006 and PW24 was about 37 years old. Thus, as per him, a man of 37 years old considered a young girl as his daughter. One could believe that the relations between two persons of the said age could be of brother and sister but it is seldom to believe that their relations could be of father and sister. He further deposed that he had purchased two mobile sim cards of Airtel from Karol Bagh on his identity and gave the same to the SC No. 42/12 Page 14 of 51 SC No. 64/12 State Vs. Shyano Varghese deceased as she did not have any I.D proof. If there is any substance in the testimony of PW24, it means that deceased did not want to use her identity to procure SIM cards otherwise it would not be difficult for her to obtain SIM card as she was a married lady having marriage certificate. PW24 further deposed that he did not ask the deceased whether she was married or having any family member. However, in 2007 he came to know that she was living with her sisters. But he had never shown any interest in going to her house. He deposed that he had purchased the said SIM cards in 2010 and prior to that deceased used to make calls to him from different numbers; some time from mobile phone or sometime from landlines but he did not remember the same nor he ever saved her number in his mobile phone. Thus, he want to say that till 2010, he was not aware about any contact number of his so called foster daughter. Neither he had shown any interest in taking the contact number of his so called affectionate daughter nor he had shown any interest to know about the family of his so called loveable daughter. But in 2010, he had purchased two SIM cards for the deceased on his I.D proof on her simple asking. He further deposed that during the period 2010, his affection developed towards her as a lovable daughter and even after developing such love and affection, he did not try to meet her family or try to know where she was residing. He further deposed that being the father figure, he asked the deceased to plan for her marriage and she told him that she would marry at right time. If it was so, it means that deceased had concealed from PW24 that she had already married with PW3 in 2008. He deposed that deceased had a dream to become Air-hostess but he did not help her in any manner in fulfilling her dream. He further deposed that during February 13, 2012 to March 19, 2012, deceased used to make calls to him approximately thrice in a week. Though he considered himself as father figure and the deceased as his loveable daughter but he refused to claim her daughter's body stating that SC No. 42/12 Page 15 of 51 SC No. 64/12 State Vs. Shyano Varghese she had a family. Admittedly, police failed to trace her family members. Police had to cremate her dead body as unclaimed but the so called father figure refused to claim her dead body. It is not clear what kind of father figure he was. Due to the occult conduct of PW24, he was also one of the suspects and police asked him to stay in Delhi for few days. From the above, it can safely be culled out that it is seldom to believe that the relationship between deceased and PW24 was pious as he attempted to project, rather, the relationship appeared to be otherwise and the deceased had concealed the said relationship from her husband.
19. Now, I proceed to deal with the contentions raised by counsel for both the parties.
Time of Death:
20. Learned counsel appearing for the accused sagaciously contended that entire prosecution case is based on the theory that deceased was died on March 9, 2012 when accused allegedly visited the massage parlour of the deceased. However, during trial, prosecution has failed to produce any cogent evidence to establish that the deceased had died on March 9, 2012. It was submitted that on the contrary evidence adduced by prosecution establishes that deceased did not die on March 9, 2012. Rather she died after March 9, 2012.
21. Learned Additional Public Prosecutor refuted the said contentions by arguing that the deceased had died on March 9, 2013 and this fact is corroborated from the testimony of PW3 Pankaj Bhatt who deposed that his wife did not return to house after March 9, 2012 and the SC No. 42/12 Page 16 of 51 SC No. 64/12 State Vs. Shyano Varghese time of death is further corroborated from CDR of the mobile phone of deceased which shows that no call was made from the said phone after March 9, 2012.
22. It is admitted case of prosecution that the dead body of deceased was surfaced only on March 14, 2012 when police received a call at 8.20 PM from Amit Madnani, landlord of the premises. The inquest was conducted on March 20, 2012 by PW18 ASI Sunil Kumar. However, Crime team was summoned at the spot on March 14, 2012. Crime team also took the photographs. When the police team reached the spot, it found that the circumstances in the basement were normal and this fact is recited in the rukka Ex. PW18/6. Perusal of the rukka does not reveal that there was any sign of dust at the place of occurrence. Similarly, this fact is also not mentioned in DD No. 73B (Ex. PW14/C), which was recorded by ASI Om Parkash (PW14) after returning to the police station. If the murder had taken place on March 9, 2012 as alleged by the prosecution, there must be something unusual in the basement, which may suggest that the incident had taken place much prior to March 14, 2012. Even the photographs taken by the crime team do not show any sign of dust either on the floor or on the clothes or on the body of deceased or near the dead body. However, PW23 in his cross-examination deposed that there was a thin layer of dust on the floor and on the items lying in the basement. He further deposed that it was revealed that door of the basement was partially opened. When PW14 reached the spot first time, there was only one ventilator in the basement and it was covered from outside. He further deposed that though crime team attempted to pick up chance prints from the place of occurrence but it could not lift any chance print despite the fact that there was thin layer of dust. He also deposed that even crime team also failed to lift chance prints from the electric switch buttons.
SC No. 42/12 Page 17 of 51 SC No. 64/12State Vs. Shyano Varghese
23. It is admitted case of prosecution that deceased was running massage parlour from the said basement. If it was so, it is highly unbelievable that the chance prints of deceased would not be found in the entire basement. ASI Om Parkash (PW14) and SI Sunil (PW18) nowhere in their deposition deposed that they had noted any layer of dust. Had there been a layer of dust as deposed by PW23, ASI Om Parkash would have recited the same in DD No. 73B because layer of dust would render help to the investigating agency to assess that the deceased had died much prior to March 14, 2012 and in that eventuality, the investigating officer would not have mentioned in the rukka (Ex.PW18/G) that circumstances found in the basement were normal. Had there been any layer of dust at the place of occurrence, crime team would have certainly mentioned the same in its report and needless to say that layer of dust would preserve the finger prints of the assailants as well as of deceased, thus, it would not be difficult for the crime team to lift the same. But it was not so. Thus, it appears that PW23 had invented a new story during his deposition in order to establish that deceased died much prior to March 14, 2012 otherwise there was no reason for not bringing this fact on record.
24. No doubt, it is seldom to assess the time of death from the layer of dust. However, presence of layer of dust could only help the investigating agency to assess whether the incident had taken place on March 14, 2012 or earlier.
25. Autopsy report plays a significant role to assess the probable time of death and in the instant case post-mortem was got conducted on March 20, 2012 and autopsy report is Ex. PW21/A. Probable time since death in Ex. PW21/A is mentioned as about 9 days. Thus, as per autopsy report, deceased had died approximately on March 11, 2012. Post-mortem SC No. 42/12 Page 18 of 51 SC No. 64/12 State Vs. Shyano Varghese was conducted by PW21 Dr. Kulbhushan, Asstt. Professor of Safdarjung Hospital. During his deposition no effort was made on behalf of State to seek any clarification from him on what basis he had opined that death had taken place about 9 days ago. In other words, the autopsy report qua probable time since death remained unchallenged on the part of prosecution. Since PW21 was not cross-examined by learned counsel, it means that this fact is also not disputed by the defence during trial. It means that the finding of PW21 about the time since death in autopsy report (Ex. PW21/A) remained unchallenged. In the absence of any contrary evidence on record, this Court has no reason to disbelieve the unrebutted finding of PW21. Thus, as per prosecution version, the deceased had died about 9 days prior to the post mortem; it means that she died approximately on March 11, 2012.
26. The testimony of PW3 Pankaj Bhatt is not helpful to the prosecution in any manner to establish the time of death of deceased. From his testimony, it is abundantly clear that deceased was habitual in not coming home in night and even PW3 did not take seriously whenever deceased did not return to home in night. Thus, mere fact that deceased did not return to her house in the night of March 9, 2012 is not sufficient to hold that she was died on that day.
27. It is admitted case of prosecution that deceased was using two mobile phones having connection No. 9560345002 and 9650623705. Prosecution has placed the CDR of both the mobile phones w.e.f January 1, 2012 to March 14, 2012 and the CDRs are Ex. PW12/C and PW12/I respectfully. As per Ex. PW12/C, last call was received on mobile phone No. 9560345002 from mobile No. 9013790494 on March 9, 2012 at 20:38:59 hours and deceased had talked with the caller for 85 seconds. On SC No. 42/12 Page 19 of 51 SC No. 64/12 State Vs. Shyano Varghese the contrary, as per Ex. PW12/I, deceased had received last call on phone connection number 9650623705 from mobile no. 8233140534 on February 22, 2012 at 15:05:21 hours and she talked with the caller for 19 seconds. If this is the criteria to assess the probable time of death, thus as per Ex. PW12/I, prosecution can say that deceased had died on February 22, 2012. To my mind, the CDR can not be used as a conclusive evidence to prove the probable time of death particularly in the present case.
28. As it is admitted case of prosecution that deceased used to maintain numerous phones and even her husband was not aware about the said two phones. While she used to remain at house, she used to use the mobile phone which was given to her by her husband and outside her house she used to use different phones. Admittedly, two sim cards were given to the deceased by PW24 only in 2010 whereas she was married with PW3 in the year 2008. It means that during the said period, deceased must be using some other phones as PW24 admitted in his deposition that deceased used to make calls from different phones but we are not aware about those numbers. In these circumstances, I am of the view that on the basis of said CDR, it cannot be held that she died on March 9, 2012 as contended by learned Additional Public Prosecutor for State especially when autopsy report is contrary to the said view.
29. Since, prosecution has failed to adduce any other cogent evidence to establish that deceased died on Mach 9, 2012, I am of the opinion that prosecution has failed to establish beyond the shadow of all reasonable doubts that deceased had died on March 9, 2012 .
Conversation of accused with deceased:
SC No. 42/12 Page 20 of 51 SC No. 64/12State Vs. Shyano Varghese
30. Learned Additional Public Prosecutor energetically contended that accused had talked with the deceased on her mobile phone bearing No. 9560345002 on March 9, 2012 during 16:29:30 hours to 18:33:19 hours. It was submitted that the location of both the phones was at Tower No. 8552-8553 between 18:01:53 hours to 18:33:19 hours, thus location of both the mobile phones holders was in the area of Old Rajender Nagar, Delhi where place of occurrence is located. It was submitted that this evidence establishes that accused had visited the place of occurrence on March 9, 2012 and remained there till 18:33:19 hours. It was submitted that since thereafter the mobile phone of the accused was switched off which shows the guilty intention of the accused. It was submitted that accused was using mobile phone number 9650628229 at that time and this fact is proved by the testimony of PW1 and PW12.
31. On the other hand, learned defence counsel vehemently refuted the said contentions by arguing that there is no evidence on record to establish that the phone number 9650628229 was belonged to the accused. It was submitted that the testimony of PW1 does not prove that the said phone belonged to the accused. It was further argued that even if we presume that the said phone belonged to the accused, it does not help the prosecution in any manner because as per CDR of the phone of deceased, she was in continuous touch with numerous persons after 18:33:19 hours. It was submitted that she was in touch with as many as 22 persons on March 9, 2012 from 18:38:13 hours to 20:38:59 hours. It was submitted that during the trial, prosecution failed to establish with whom she was talking during the said period.
32. From the above submissions, first question emerges as to whether the mobile phone number 9650628229 belonged to the accused or SC No. 42/12 Page 21 of 51 SC No. 64/12 State Vs. Shyano Varghese not?
33. In order to prove that the said phone belonged to the accused, prosecution has relied upon the testimony of PW1 & PW12. PW12 Vishal Gaurv is a Nodal officer. He deposed that the connection No. 9650628229 was issued in the name of Mr. Johnson Joy and at the time of obtaining the connection he had furnished the copy of his driving licence. The Customer Application Form and copy of driving license are exhibited as Ex. PW12/D and PW12/E respectively. It is not the prosecution case that accused had obtained the said connection by furnishing false and fabricated document in the name of Mr. Johnson Joy. In the application form, the address of Johnson Joy is mentioned as 5565, New Chandrawal, Jawahar Nagar, Delhi and the said connection was purchased from Kanika Communication, Dilshad Colony, Delhi. During the trial, prosecution has failed to examine either Johnson Joy or Kanika Communication to establish that the said phone connection was either purchased by accused or the same was given to him by Johnson Joy.
34. No doubt PW1 in his examination-in-chief deposed that Shyano Varghese i.e. accused was having mobile connection number 9650628229 and he had disclosed the said number after checking the same from his mobile phone. However, the same was disputed by the accused and during his cross-examination a suggestion was given that the said phone did not belong to Johnson Joy but same was denied by PW1. It is not clear from the testimony of PW1 when he had stored the said connection in his mobile phone. No doubt, the testimony of PW1 shows that he used to talk with Shyano Varghese i.e. accused on the said connection but it is not sufficient to hold that the said phone belonged to the accused.
SC No. 42/12 Page 22 of 51 SC No. 64/12State Vs. Shyano Varghese
35. Moreover, there is no explanation from the prosecution why investigating agency had not interrogated Mr. Johnson Joy. Prosecution has failed to establish the relationship or link between Johnson Joy and the accused. In the absence of connecting evidence, it is difficult to establish beyond the shadow of all reasonable doubts that said phone belonged to accused Shyano Varghese.
36. Assuming for the sake of arguments that the said phone belonged to the accused Shyano Varghese as deposed by PW1. As per the CDR of the said phone, holder of the said phone contacted holder of mobile phone number 9560345002 i.e. deceased first time on March 9, 2012 at 16:29:07 hours and they talked to each other for 236 seconds and thereafter they talked with each other at 17:11:47 hours. Thereafter, accused made 5 calls between 18:01:49 hours to 18:33:19 hours and during the said period the location of both the mobile phone holders was at Cell ID No. 11006 i.e. Jor Bagh. Thereafter, at Cell ID No. 12973 i.e. Jhandewalan. Thereafter, Cell I.D number 39116 i.e. H. No. 16/36, Old Rajender Nagar and thereafter at Cell ID No. 8551 i.e. H. No. 1/118, Old Rajender Nagar, Delhi. The CDR of mobile phone of accused is exhibited as Ex. PW12/F.
37. As per CDR of deceased's phone Ex. PW12/C, the location of both the mobile phones was shown at Cell I.D No. 8552 and 8553 i.e. H. No. 1/118, Old Rajender Nagar, Delhi during the period 18:01:53 hours to 18:33:19 hours.
38. From the CDR of above mobile phones, it is established that the holder of both the mobile phones were in the area of Old Rajender Nagar at about 18:33:19 hours.
SC No. 42/12 Page 23 of 51 SC No. 64/12State Vs. Shyano Varghese
39. On the basis of facts disclosed by the accused in his disclosure statement Ex. PW18/E, learned Additional Public Prosecutor contended that deceased demanded more money from the accused at the time of massage and also threatened that if the amount was not paid, she would call her male friends who were waiting outside the Massage Centre. Accordingly, a scuffle had taken place between accused and deceased as accused tried to snatch the mobile phone and in that process he had strangulated the deceased and hit her head against stretcher lying there and when Ms. Swapna died, accused had snatched her phone. He switched off his phone but kept her phone switch on.
40. I have perused the disclosure statement of accused Ex. PW18/E. As per his disclosure statement, he reached the place of occurrence at about 6.40 PM and when he entered the basement, deceased had closed the entry gate from inside and thereafter accused paid ` 500/- for massage but deceased asked to pay ` 1000/-. consequently, he paid ` 1000/-. During the massage, deceased asked the accused to pay ` 1000/- more and threatened otherwise she would call her male friends who were standing outside and they would beat him. Consequently, he stood up and try to snatch her mobile phone to prevent her to contact her male friends. However, deceased pulled her hand and threatened the accused that she would be calling her friends. As per the disclosure statement, when he found that Ms. Swapna had died, he picked up black laptop bag containing the laptop and switched off his mobile phone. However, he kept the mobile phone of deceased on and left from there between 7 to 7.30 PM.
41. Thus, as per the disclosure statement of accused, he reached the basement i.e. place of occurrence at 6.40 PM and left from there SC No. 42/12 Page 24 of 51 SC No. 64/12 State Vs. Shyano Varghese between 7 to 7.30 PM. Though there are serious doubts about the fact that any Massage Centre was being run from the said basement and this fact will be dealt with later on. As per the CDR Ex. PW12/C, deceased had made or received 51 calls during the period 18:38:13 hours to 20:38:59 hours and during these 51 calls she had talked with as many as 22 persons. No doubt, as per the disclosure statement of accused, he had kept mobile phone of deceased on but he nowhere deposed that during the said period he had talked with any person on the said phone nor it is the case of prosecution.
42. As per the CDR Ex., PW12/C deceased received only one call from phone number 9790264113 at 18:38:13 hours. Thereafter, she had made a call at mobile phone No. 9560599120 at 19:50:32 hours. It means that deceased had received only one call when accused reached the basement and left from between 7 PM to 7.30 PM. Thus, the prosecution case that deceased was receiving calls while doing massage does not corroborate from CDR of the phone of deceased itself.
43. As per the disclosure statement Ex. PW18/E, accused had left from the basement between 7 to 7.30 PM and prosecution has not disputed this fact, thus it is admitted case of prosecution that accused had left from the basement between 7 PM to 7.30 PM. However, as per the said CDR, deceased had talked with as many as 50 times during 7.50 PM to 20:38:59 hours. Deceased had talked with as many as 22 persons during the said period. If accused had left from the basement during 7 PM to 7.30 PM as he disclosed before the police in his disclosure statement Ex PW18/E, it means that deceased was alive when he left from the basement.
44. To cover up the said lacuna, learned Additional Public SC No. 42/12 Page 25 of 51 SC No. 64/12 State Vs. Shyano Varghese Prosecutor contended that it was accused who talked from mobile phone of deceased and from the CDR of the phone shows that the location of phone of deceased was in the area of Gurgaon.
45. Admittedly, as per CDR Ex. PW12/C, the location of the said phone was found in the area of Gurgaon. But there is no evidence on record to show that accused had made any call from the said phone. As per the CDR, 22 persons contacted on the said phone, either they made call or received calls. If prosecution wants to say that accused had made calls and received calls during the said period, prosecution should have examined the persons who had made calls on the said phone during 19:50:32 hours to 20:38:58 hours but prosecution failed to produce even a single person among these 22 persons. In the absence of this important piece of evidence, it is seldom to believe the prosecution case that accused had taken the said mobile phone from the said basement. Moreover, it is otherwise difficult to believe that accused would either carry the said mobile phone or if he would carry he would keep it open or if he would be kept it open, he would talk with as many as 22 persons.
46. Since CDR proves that deceased had received calls and made calls after 7.30 PM when allegedly accused left from the premise, it means that Ms. Swapna was alive at that time, if she was alive, accused cannot be held liable for her death.
CCTV Footage & Metro card:
47. Learned Additional Public Prosecutor contended that detail of Metro card used by the accused proves that he had visited the place of occurrence on March 9, 2012. Similarly from the footage of CCTV seized SC No. 42/12 Page 26 of 51 SC No. 64/12 State Vs. Shyano Varghese by the police establishes beyond the shadow of doubt that accused had visited the place of occurrence on March 9, 2012.
48. On the other hand, counsel appearing for accused contended that the said piece of evidence is not sufficient to conclude that accused had visited the basement where the alleged incident had taken place. It was submitted that no effort was made to seize the footage of CCTV of Metro station, thus the detail of Metro card is not sufficient to establish that accused had used the said card. It was further submitted that though the investigating officer had seized CCTV footage of the road opposite to Ganga Ram hospital but that CD was never displayed during trial. Even hard disk which was sent to FSL for analysis was not examined by the FSL and no opinion was placed on record by the prosecution.
49. To prove the fact that accused had travelled from the Metro train, prosecution has relied upon the testimony of PW2 Chandra Mohan Singh, Asstt. Manager, Delhi Metro. He deposed that an application Ex. PW2/A was moved by the police to seek information about the Metro Smart Card No. 00513385944 (Ex. PW2/B), which was allegedly recovered from the accused. He further deposed that the said card was issued on March 9, 2012 at 17:17 hours at M.G Road for ` 50/-. Thereafter, the card holder travelled and exited from the Metro station via Karol Bagh at 18:20 hours. As per the location of CDR of the phone (Ex. PW12/F) allegedly used by accused, his location at that time was in that area. Assuming for the sake of arguments that said Metro card was recovered from the possession of accused, it only proves that he had travelled at Metro train through said card and visited the area of Karol Bagh. But it does not prove that he also visited the basement where the alleged incident had taken place.
SC No. 42/12 Page 27 of 51 SC No. 64/12State Vs. Shyano Varghese
50. PW20 Tulsi Dass is the person who had handed over the footage of March 9, 2012 between 6 PM to 7 PM to the police. In his examination-in-chief, he deposed that on March 28, 2012, ASI Sunil came to him to check the recording of March 9, 2012 between 6 PM to 7 PM. On his request, he had recorded the relevant portion of footage in two CDs and handed over the same to ASI Sunil Kumar. Thereafter, the said CDs were sealed in a pullanda in his presence and he also signed the memo (Ex. PW18/L). He further deposed that on June 6, 2012, ASI Sunil again came to him and asked to hand over the hard disk of the system. Accordingly, he handed over the hard disk which was sealed by him and seized vide memo Ex. PW18/M. His examination-in-chief was deferred on the request of learned Additional Public Prosecutor for want of hard disk and CDs. Thereafter, the hard disk and CDs were produced on the next date of hearing and same were identified by the witness. Accordingly, same were exhibited as Ex. P-7 and P8 respectively.
51. Assuming for the sake of arguments that the said CD and hard disk were given by PW 20 to the police but the said CD was never displayed by the prosecution in the Court. Thus, there is no evidence on record to show what were the contents of the said CD. Moreover, before placing any reliance on the contents of the CD, prosecution is duty bound to establish that the CD was not tempered in any manner. The only way to ensure that the CD was not tempered or could not be tempered, it was the duty of investigating officer to note down the hash value of the CD when it was seized. PW20 in his cross-examination admitted that he did not know what was the hash value of the CD when it was given to the police. Further police had seized the hard disk with an intention to send the same to the FSL to analysis that there was no tempering in the said footage. In this regard the report of FSL is quite relevant. As per the report Ex. PW23/A, SC No. 42/12 Page 28 of 51 SC No. 64/12 State Vs. Shyano Varghese the hard disc was sent back to the police with remark that the facility for examination and analysis for Ex. HDD1 (Hard disk) was not available in the laboratory, hence data could not be retrieved from the said hard disk. It means that in the FSL, the said hard disk could not be examined and investigating agency did not make any effort to get it examined from any other source. Thus, there is no iota of evidence whether the said hard disk contained any such footage as claimed by the prosecution. Moreover, the investigating officer also did not mention the hash value of the said hard disk when it was seized. Since hash value was not mentioned, the possibility of tempering with the contents of hard disk cannot be ruled out.
52. Hard disk was containing the primary evidence which prosecution failed to retrieve during examination, there is nothing on record which may prove that the CDs which were allegedly prepared on the basis of said hard disk contains the same contents or not. As already stated that even the hash value of said CD was also not noted down by the investigating officer. Thus, the possibility of tempering with its contents can not be ruled out. At last but not least that the said CD was not played in the Court and none of the witnesses had deposed that accused is visible in the said footage.
53. As per the disclosure statement of accused, he hired the cycle rickshaw from metro station Karol Bagh to Rajender Nagar where the alleged incident had taken place. As per his disclosure statement, he left from the place of occurrence between 7 PM to 7.30 PM and he again hired cycle rickshaw to reach the Metro station. If there is any substance in the information divulged by him during his disclosure statement, it means that accused must have taken the same route while going back to metro station from Rajender Nagar. But PW20 in his cross-examination deposed that the SC No. 42/12 Page 29 of 51 SC No. 64/12 State Vs. Shyano Varghese said person was not seen going back on that day. Admittedly, the footage for the period 6 PM to 7 PM were seized. When accused in his disclosure statement disclosed that he left from the premises between 7 PM to 7.30 PM, why the investigating agency had not seized the footage of the said period. If accused was visible while going towards the place of occurrence, he must be visible while coming back. During investigation, no evidence was collected to the effect that he had chosen another route to reach the metro station. Since, he hired cycle rickshaw while going and coming back, it is difficult to believe that cycle rickshaw puller would take different route while going back as generally rickshaw pullers take same route. It is admitted case of prosecution that accused was a resident of Gurgaon, it means that he was not well conversant with the geography of the said area, thus in the absence of any cogent evidence, it is difficult to believe that he would take unknown route to escape. The subsequent portion of judgment will reveal the reason why the said footage was not seized by the police.
54. As already discussed, we assumed that accused visited the place of occurrence, but as per the CDR, it is established that deceased was alive till 8.20 PM on March 9, 2012 whereas prosecution case is that accused had left from the premises between 7 PM to 7.30 PM. As per the CDR Ex. PW12/C, 51 calls were attended on the mobile of deceased during 19:50:32 to 20:38:58 hours and there is no evidence that the said calls were not attended by the deceased.
55. Keeping in view the aforesaid discussion, I am of the opinion that the metro card along with footage of CCTV are not sufficient to prove the guilt of accused.
SC No. 42/12 Page 30 of 51 SC No. 64/12State Vs. Shyano Varghese Arrest of the accused and recovery of the articles from accused:-
56. Prosecution has set up a case that accused was arrested on March 27, 2012 from Sector 31 Gurgaon and thereafter, he was interrogated and during interrogation he made a disclosure statement Ex. PW18/E and pursuant to his disclosure statement some articles belonging to the deceased were recovered from his room. On the contrary, the defence version is that accused was lifted from his office on March 26, 2012 and thereafter he was falsely implicated in this case.
57. To prove its case, prosecution has relied upon the testimony of PW18 ASI Sunil Kumar, PW19 inspector G.S. Sharma and PW23 inspector Ramesh Chand. They all in one tone deposed that on March 27, 2012, they reached property No. 100/P, Indira Villa, Sector 41 Gurgaon i.e. at the residence of accused and came to know that accused Shyano Varghese had left from his room just a minute ago and he was wearing pink colour shirt and black colour pant. Accordingly, police party left in different directions to search the accused and he was apprehended while coming from Sector-31 side. Thereafter, accused was interrogated and he made a disclosure statement Ex. PW18/E and pursuant to that recovery of certain articles were affected from his room and same were seized vide Ex. PW18/F. They also deposed that one mobile phone make Nokia E-11 and Metro card were recovered from his possession at the time of arrest and same were seized vide memo Ex. PW18/G and PW18/H respectively.
58. It is admitted case of the prosecution that accused was using mobile phone number 8800279759 w.e.f March 10, 2012 on his previous SC No. 42/12 Page 31 of 51 SC No. 64/12 State Vs. Shyano Varghese mobile instrument make Nokia E-71 having IMEI number 359357034474900. Earlier on the said instrument, he was using connection number 9650628229. But after the incident, he changed the above SIM card.
59. To resolve this crucial issue as to whether accused was arrested on March 27, 2012 or March 26, 2012, testimony of PW1 and PW12 are quite relevant. Prosecution case is that police officials had never visited the office of accused. It is admitted case of prosecution that accused and PW1 Jino James were working in the same office. PW1 in his cross- examination deposed that 5-6 police officials in plain clothes visited his office in the month in which murder had taken place. Manager of the company called him in his chamber where police officials were sitting and they interrogated him because they had noted his mobile number in the CDR of the phone of accused Shyano Varghese. They enquired him about phone number 8800279759. Since he did not recall to whom the said phone belonged to, he made a call at the said number and came to know that said phone belonged to Shyano Varghese. He further clarified that the police officials visited his office in lunch time and testified that police officials had also called Shyano Varghese but at that time they sent him out of the chamber. He further deposed that thereafter police officials took the accused from his office and since then he did not see the accused Shyano Varghese in the office. No doubt, testimony of PW1 is not sufficient to establish that accused was apprehended on March 26, 2012 as alleged by the defence, however his testimony is relevant to prove the fact that the police officials in plain clothes visited the office of Shyano Varghese in lunch time and they apprehended the accused Shyano Varghese from his office.
60. In order to prove the fact that he was arrested on March 26, SC No. 42/12 Page 32 of 51 SC No. 64/12 State Vs. Shyano Varghese 2012, accused had examined two witnesses i.e. DW1 Bhupender Singh, Administrative officer and DW2 Suresh K. A, Regional manager of his company. Both the said witnesses corroborated the testimony of PW1 that police officials in plain clothes visited their office and they apprehended the accused Shyano Varghese from the office. DW1 in his examination-in-chief deposed that on March, 26, 2012, police officials in civil dress visited their office and at that time, he was sitting at reception counter. He further deposed that he had seen police officials while they were taking the accused from his office and they interrogated the accused in the Conference hall in the presence of Mr. Suresh (DW2). He further deposed that when police took the accused from their office, his service was terminated on the very same day. He deposed that police officials had taken the accused at about 12.30 PM.
61. DW2 corroborated the testimony of DW1 by deposing that on March 26, 2012 some police officials from Crime Branch came to his office to investigate a murder case. Firstly, they made inquiry about Jino James (PW1) and after talking with Jino James, they made enquiry about accused Shyano Varghese. Thereafter, they interrogated accused Shyano Varghese in his presence in the conference room of his office. Thereafter, they told that accused was required for further interrogation in a murder case and accordingly, they took him from his office. He further deposed that they had not given any document to him while taking away the accused and since then accused Shyano Varghese did not attend the office. He further deposed that on March 26, 2012 they also informed the family members of accused that police had taken the accused to interrogate in a murder case. Though both the witnesses were cross examined by learned Additional Public Prosecutor, yet nothing could be extracted in their cross-examination which may cause any dent in their testimony.
SC No. 42/12 Page 33 of 51 SC No. 64/12State Vs. Shyano Varghese
62. From the deposition of DW2 it becomes clear that police officials of Crime Branch were also involved in the investigation of this case. However, prosecution denied this fact. In this regard the testimony of PW3 Pankaj Bhatt is also relevant. In his cross-examination he deposed that police officials who were in plain clothes visited the house of his friend Arindum Bhattacharya at Mehrauli where he was residing since March 10, 2012. He further deposed that the police team was headed by inspector Satender Singh of special staff and they visited the said premises between 1 AM to 1.30 AM and they brought him along with his 6-7 other friends to the police station. In his cross-examination he further deposed that investigating officer from police station Rajender Nagar was also present when he was interrogated by the special staff. He categorically deposed that he was interrogated by inspector Satender Singh and his team and DCP. He further deposed that during the said interrogation, investigating officer of the case was not present in the room. He further testified that he met with the accused in the police station either on March 26, 2012 or March 27, 2012. Thus, the testimony of DW2 is corroborated by the prosecution witness that the special staff of crime branch were also involved in the investigation of the case. It is pertinent to state that the deposition of PW3 to that extent was not challenged by the prosecution during trial.
63. Though PW18 admitted in his cross-examination that Pankaj Bhatt and accused were got confronted to each other in the police station, yet he took a plea that they were got confronted to each other either on March 28, 2012 and March 29, 2012. Thus, he tried to show that they were confronted to each other after the arrest of accused. But in his next breath, he admitted that Pankaj Bhatt was brought in the police station only once i.e. on March 25, 2012 but the factum of confrontation is not mentioned in SC No. 42/12 Page 34 of 51 SC No. 64/12 State Vs. Shyano Varghese the case diary. If Pankaj Bhatt was not called in the police station after March 25, 2012, how he could be confronted either on March 28, 2012 or on March 29, 2012.
64. Though initially PW23 in his cross-examination deposed that after March 25, 2012, Pankaj Bhatt was called in the police station 2-3 times for the purpose of investigation, but admitted that there is no reference of his visit in the case diary. Then in his next breath PW23 deposed that Pankaj Bhatt was not interrogated after March 25, 2012. If it was so, the testimony of PW18 that he was got confronted with accused either on March 28, 2012 or March 29, 2012 becomes doubtful. PW23 admitted in his cross-examination that he knew inspector Satender Singh of Special Staff but deposed that he had no role in the investigation of present case and further deposed that as per his knowledge inspector Satender, Special Staff had not interrogated Pankaj Bhatt. Admittedly, Pankaj Bhatt has no relation with inspector Satender Singh. If inspector Satender Singh had not interrogated Pankaj Bhatt, he would not be in a position to know the name of inspector Satender Singh.
65. In these circumstances, there is no reason to disbelieve the testimony of PW3 to the extent that he was lifted from the house of Arindum Bhattcharya at Mehrauli and thereafter he was interrogated by inspector Satender Singh.
66. Moreover, the story of prosecution version qua Pankaj Bhatt is also quite suspicious. PW23 deposed that on March 25, 2012 after analysing the phone calls, he made a call to Pankaj Bhatt and asked him to come police station on March 25, 2012. Accordingly, Pankaj Bhatt of his own reached the police station and joined the investigation. It is pertinent SC No. 42/12 Page 35 of 51 SC No. 64/12 State Vs. Shyano Varghese to state that after missing of his wife, Pankaj Bhatt himself fled away from his house and started living at the house of his friend at Mehrauli and he did not try to contact police to trace out his wife. It appears quite unbelievable that he would join the investigation of his own just by receiving a call. Moreover, police also failed to place the CDR of phone of Pankaj Bhatt to show that any such call was made to him. In these circumstances, the testimony of PW3 to the extent that he was lifted from the house of his friend Arindum Bhattcharya by the team of inspector Satender Singh and thereafter he was interrogated appears more plausible and trustworthy.
67. There is another important piece of evidence to demolish the prosecution case that accused was arrested on March 27, 2012. It is admitted case of prosecution that at the time of arrest accused was using mobile phone connection number 8800279759. The prosecution has filed the CDR of the said phone till March 14, 2012. However, during his cross- examination, PW12 also furnished the CDR of the said connection w.e.f March 26, 2012 to March 31, 2012. PW12 in his cross-examination deposed that last out going call was made from the said phone on March 26,2012 at 11:08:35 hours and at that time location of the said mobile phone was at cell I.D No. 60691 which means his location was at Signature Tower Gurgaon. He further deposed that the location of said mobile holder on March 26, 2012 during the period 18:02:35 hours to 18:20:42 hours was at cell I. D number 48413, which means his location was at Bazar Sita Ram, Asaf Ali Road i.e. Darya Ganj. Accused in his statement recorded under Section 313 Cr. P.C took a plea that he was arrested from his office on March 26, 2013. Thereafter, he was taken to the office of Special Staff at Darya Ganj where he was confronted with Pankaj Bhatt. PW12 further deposed that on March 27, 2012 from 19:02:48 hours to 19:07:17 hours the location of said mobile holder was at cell I.D N0. 19022 which means his SC No. 42/12 Page 36 of 51 SC No. 64/12 State Vs. Shyano Varghese location was at Old Rajender Nagar. The CDR for the said phone is exhibited as Ex. PW12/D1. This further proves that the mobile holder was in the area of New Rajender Nagar on March 27, 2012 at about 7.02 PM to 7.07 PM.
68. Though PW12 deposed that last outgoing call from the said phone number was at 11:08:35 hours, but CDR reveals that the last call was made at 13:19:38 hours. But the same was not attended by anyone. This further corroborates the testimony of defence witnesses that accused was apprehended by the police of crime branch in lunch time. Had accused been arrested on March 27, 2012 from the area of Gurgaon, his CDR would have not shown his location in Delhi either on March 26, 2012 or March 27, 2012. Similarly, if he was apprehended from Gurgaon on March 27. 2012, CDR would have shown his location in the area of Gurgaon at the time of his arrest but it is not so. This further falsifies the prosecution version that accused was arrested from Gurgaon on March 27, 2012.
69. In view of the aforesaid discussion it becomes abundantly clear that accused was apprehended by the special staff of Crime Branch on March 26, 2012 in the presence of PW1, DW1 and DW2 and thereafter, he was brought to Darya Ganj at the office of Crime Branch and he was got confronted with Pankaj Bhatt and then projected as he was arrested from Gurgaon on March 27, 2012.
70. Once it is held that accused was not arrested from Gurgaon on March 27, 2012 as projected by prosecution, the entire proceedings conducted by PW 18, PW19 and PW23 at Gurgaon on March 27, 2012 showing that some articles of deceased were recovered at his pointing out becomes totally doubtful, hence no reliance can be placed on the alleged SC No. 42/12 Page 37 of 51 SC No. 64/12 State Vs. Shyano Varghese recovery.
71. However, I prefer to deal with the prosecution case in order to demonstrate how the investigating agency manipulated the record and created false evidence.
Recovery of laptop bag etc.:-
72. Prosecution has built up a case that one bag containing laptop and ATM card was recovered pursuant to the disclosure statement made by the accused from his room and the said items belonged to the deceased.
73. First question arises as to whether any laptop was present at the place of occurrence or not and whether said laptop was belonged to the deceased or not?
74. It is admitted case of prosecution that on March 14, 2012 when the dead body was surfaced, crime team was summoned and crime team had inspected the place of occurrence and photographer took the photos of the place of occurrence.
75. PW14 ASI Om Parkash in his cross-examination deposed that he could not admit or deny whether laptop, ATM card, cell phone and leather bag were lying on the table at the place of occurrence or not. So he expressed his ignorance about the same. But when PW18 graced the witness box, he deposed that he did not notice any personal belongings such as bag, mobile phone at the place of occurrence. However, he admitted that one ration card of the deceased and some other documents SC No. 42/12 Page 38 of 51 SC No. 64/12 State Vs. Shyano Varghese were found from the drawer of the table but the said documents were not placed on the judicial file. He further clarified that about 40-50 documents were found in the said drawer but investigating officer did not prepare the seizure memo either of the ration card or of the said documents. When PW23 inspector Ramesh graced the witness box he also admitted that certain documents were recovered from the drawer and further deposed that one credit credit card was found in the bag of deceased and admitted that the said bag is not visible in the photographs placed on record and deposed that he did not seize the said ladies bag and he did not know to whom he had given the said bag. He further deposed that he also found 1-2 photographs of the deceased.
76. Now from the testimony of PW18 and PW23, it becomes crystal clear that one ration card, some documents and 1-2 photographs of deceased were recovered from the drawer of the table and besides that one ladies bag was also recovered from the place of occurrence. But these items were neither seized by the investigating officer nor placed on the court record; even the nature of said documents is not disclosed. It is admitted case of the prosecution that crime team was summoned and photographer took the photographs and same are on Court record. But in none of the photographs neither the table nor ladies bag nor documents including ration card and photographs of deceased are visible. This only means that either the experienced police officials i.e PW14, PW18 and PW23 did not know how to investigate the matter or they deliberately did not ask the photographer to take the photographs of the said items. This further shows that the crime team had also not inspected the place of occurrence impartially and fairly to find out the truth and the crime team in collusion with the investigating officers had taken the photographs of only those articles which suited to them. Such type of tainted investigation can SC No. 42/12 Page 39 of 51 SC No. 64/12 State Vs. Shyano Varghese never help the prosecution to prove the guilt of any offender. This shows that the items were kept deliberately beyond the focus of camera just to enable the investigating officer to use the same during the investigation to create false evidence against the suspect if they fail to collect any other evidence against the suspect. Otherwise there was no occasion for the police officials to keep the table where belongings of the deceased were lying out of the focus of the camera.
77. It is admitted case of the prosecution that landlord Amit Madnani (PW9) was also present at the place of occurrence when the proceedings were conducted by the police. PW9 in his cross-examination demolished the entire prosecution case by deposing that when he entered the basement lights were on and he had seen one black hand bag in the basement appears to be a leather bag which was probably belonged to the deceased and same was lying on the table. Simultaneously, he had also seen one laptop, one mobile phone, one credit card and key. Laptop was on the table whereas other items were in the drawer of table. He further deposed that he did not touch anything. Thus, his deposition establishes that the laptop, which was allegedly shown to have got been recovered by the accused from his room, was in fact lying at the table of basement where the ladies bag was also lying and seen by PW23. The mobile phone was also present at the spot which was allegedly to be shown to be recovered later on. Probably, this was the reason that the photographs of the table had either not been taken or the same were not placed on the Court record. Further, this is the reason that the investigating officer had not seized the footage of CCTV beyond 7 PM because it would show that accused was not carrying any laptop bag while going back to the Metro Station.
78. PW3 Pankaj Bhatt in his cross-examination deposed that when SC No. 42/12 Page 40 of 51 SC No. 64/12 State Vs. Shyano Varghese deceased left from her house she was wearing gold chain, couple of rings, ear rings and was also wearing red colour shirt. She also carrying one black colour handbag. He further deposed that she was not carrying any items such as laptop etc. There are only two persons with whom deceased had relation; one is PW3 Pankaj Bhatt, her husband and another is PW24, her so called foster father but both did not either deposed any thing about the laptop or identified that the said laptop belonged to the deceased. In this regard the testimony of PW23 is also relevant. He deposed that he presumed that the said laptop belonged to the deceased because one or two photographs of deceased were found in the said laptop. Mere fact that one or two photograph of a person is found in the laptop does not prove that the said laptop belonged to that person. It is a very common feature that a person stores the photograph of numerous persons in his or her laptop. During the investigation, investigating officer failed to collect any cogent evidence to prove that that any person had seen the deceased with the said laptop at any point of time. Nor investigating officer collected any evidence to show that the said laptop was ever identified by any person stating that same was belonged to the deceased. Unless prosecution adduces the evidence that the alleged recovered laptop belonged to the deceased, prosecution cannot establish that the alleged recovered laptop belonged to the deceased. Moreover, PW9 categorically deposed that the laptop was at the place of occurrence when he reached the spot and during trial, prosecution had failed to furnish any explanation where the said laptop had gone. Nor prosecution sought any clarification from PW 9 about his deposition. Thus, there is no reason to disbelieve his testimony.
79 Now coming to the recovery of alleged SIM card of deceased. Prosecution has set up a case that on March 28, 2012 accused got recovered a SIM card of deceased from green land located between SC No. 42/12 Page 41 of 51 SC No. 64/12 State Vs. Shyano Varghese Sector 30 and Sector 41 and the said SIM belonged to the phone of deceased having number 9560345002, however the phone instrument could not be recovered. Thus, prosecution intends to say that the said mobile phone must have been picked up by unknown passers by. If it was so, investigating agency could easily trace out the said phone also through its IMEI number because if the said phone was picked up by any passers by, it is difficult to believe that he would not have used the said phone instrument at least once. But no such effort was made in this regard. Probably police knew that the recovery is false as it is already proved from the aforesaid discussion.
Recovery of another mobile phone of deceased:-
80 Prosecution propounded a case that one mobile phone make G-Five Model No.1700 having connection number 9650623705 was recovered from the place of occurrence on March 23, 2012. As per memo Ex.PW18/D, the said phone was recovered from the drawer of the table found in the basement. This Court is unable to understand what prosecution wants to convey by saying that the said phone was recovered on March 23, 2012. Does it intend to say that police officials do not know how to search a premise in murder case? It is admitted case of the prosecution that on March 14, 2012 place of occurrence was searched by the police officials as well as members of crime team. PW 18 and PW23 in their cross-examination admitted that they had also searched the drawer of the table from where certain documents including ration-card and photograph of deceased were found. If the drawer was searched on March 14, 2012, is it believable that the said mobile would not be noticed by the experienced police officials. On the contrary, laymen i.e. PW9 Amit Madnani SC No. 42/12 Page 42 of 51 SC No. 64/12 State Vs. Shyano Varghese in his cross-examination deposed that he had seen the mobile phone on March 14, 2012 in the drawer of the table. If he could see the mobile phone in drawer on March 14, 2012, how can it be believed that the same was not seen by the police officials. This only shows that the investigation is tainted and investigating officer has acted casually and in a irresponsible manner. There is no hesitation to hold that the said phone must have been recovered much earlier than as projected by the prosecution.
Disclosure statement:-
81. Now coming to the so called disclosure statement Ex. PW18/E. Prosecution has set up a case that after arrest accused had made a disclosure statement Ex. PW18/E and pursuant to his disclosure statement he got recovered laptop and other items.
82. Relevant portion of disclosure statement pertaining to the recovery of laptop bag is as under:-
" During the enquiry, I have handed you a black laptop bag with one laptop and also one ATM card from Axis bank on the name of N. Balakrishanan."
83. From the said disclosure statement, it becomes clear that the alleged laptop was handed over by the accused during enquiry itself and it is admitted case of the prosecution that inquiry was conducted on the road where accused was arrested. If it was so, it means that no such recovery was affected pursuant to his disclosure statement. Interestingly, there is over writing over the word 'have'. In this regard, the testimony of PW18 ASI SC No. 42/12 Page 43 of 51 SC No. 64/12 State Vs. Shyano Varghese Sunil Kumar, PW19 inspector G. S. Sharma and PW23 inspector Ramesh Chand are relevant. PW18 in his cross-examination admitted that in Ex. PW18/E it is not mentioned that accused could get recovered laptop and ATM card but when PW19 appeared in the witness box, he became little bit intelligent and deposed that the recovery was affected in his presence from the room of accused at about 4.15 PM. However, he admitted that he had recorded the disclosure statement Ex. PW18/E at the dictation of investigating officer and same was recorded at the road from where the accused was arrested. He further admitted that in portion A to A of Ex. PW18/E it is recited that accused have handed over the laptop during the inquiry. Since he made a contradictory statement, Court put a question to him as to whether the laptop was recovered before recording the disclosure statement or it was recovered pursuant to information divulged in the disclosure statement Upon this he deposed that items were not handed over by the accused when he made a disclosure statement and admitted that in this regard portion A to A of Ex. PW18/E is incorrect. He further admitted that in Ex. PW18/E it was nowhere recited that he had kept the said items in his room and he could get recovered the same from his room.
84. PW23 in his cross-examination gave an interesting explanation that there is overwriting on the word 'would' but gave the explanation that the word 'have' has been changed into 'would'. Thus, he wants to say that it should not be read as 'have' but it should be read as 'would'. Admittedly, this disclosure was recorded by PW19 and he nowhere deposed that the said word is 'would' he deposed that as per portion A to A of Ex. PW18/E one laptop, laptop bag and ATM card were handed over by the accused during enquiry. Moreover, the word 'would' also does not grammatically appropriate there. This shows that someone later on changed the word 'have' into 'would' just to show that the recovery was affected later on and SC No. 42/12 Page 44 of 51 SC No. 64/12 State Vs. Shyano Varghese not prior to and during the disclosure statement. Such type of mistakes prone to be happened in a tainted investigation.
Whether deceased was running any massage centre:-
85. As per prosecution case, deceased was running a Ayurvedic Kendra i.e. massage centre at the place of occurrence but there are serious doubt about the factum of operation of the said Ayurvedic Kendra. In this regard, the testimony of PW9 and PW15 are relevant. PW9 is the landlord and in his examination-in-chief he deposed that initially he had let out the basement of property No. 1/127 Old, Rajender Nagar to the deceased and after some time she had gone to Kerala and when she returned from Kerala, she made a complaint that there was a leakage in the said basement, accordingly, he shifted the deceased in the basement of property No. 1/100, Shankar Road, Delhi. He further testified that she shifted in the said basement in the first weeks of March, 2012. In his cross- examination, he clarified that deceased returned from Kerala either on March 05, 2012 and March 06, 2012. It means that deceased had shifted in the basement of property No. 1/100 after March 05, 2012 and March 06, 2012. He further deposed that deceased had not started Ayurvedic Kendra as some renovation work was going on and for that he had not handed over the key of the premises to her. Thus, as per the testimony of PW9, the premises was not ready for running the massage centre.
86. PW 15 in his testimony deposed that the possession of the basement of property No. 1/100, Old Rajender Nagar was handed over to deceased on March 09, 2012. Thus, as per PW15, the premises was handed over to her only on March 09, 2012. Thus, the testimony of above said witnesses indicate that the premise was not ready for massage centre.
SC No. 42/12 Page 45 of 51 SC No. 64/12State Vs. Shyano Varghese If the premises was not ready for running massage centre on March 09, 2012, it become difficult to believe the prosecution version that deceased was running massage centre on March 09, 2012 when accused allegedly visited in the said premises.
Delay in lodging the FIR:-
87. It is admitted case of the prosecution that the dead body was surfaced first time on March 14, 2012 but formal FIR was registered only on March 23, 2012. On March 14, 2012, ASI Om Parkash (PW14) made an arrival entry in the police station vide DD No. 73B (Ex. PW14/C) wherein it was recited that scratches were found on the abdomen of the dead body and the circumstances were found suspicious but further action would be taken on receipt of the autopsy report. Whereas in the rukka Ex. PW18/C it was recited that though circumstances were found normal at the basement, yet crime team was summoned. Admittedly, FIR was registered on receipt of autopsy report on March 23, 2012. From the above, it appears that investigating officers intend to convey that earlier FIR was not registered as nothing abnormal was found at the spot.
88. In this regard the testimony of PW18 and PW23 are relevant. PW18 in his cross-examination deposed that they did not notice blood anywhere in the premises except at the mouth of the deceased. Besides that they had also noticed some scratch marks on the abdomen and leg of the deceased and reddish marks on her neck. He further testified that on cursory examination of the place of occurrence, it was revealed that she was murdered. He further deposed that inquest was conducted in the basement but no panchnnama was prepared at that time. He further SC No. 42/12 Page 46 of 51 SC No. 64/12 State Vs. Shyano Varghese deposed that SHO informed the senior police officers that murder had taken place. PW18 further deposed that after inspecting the place of occurrence, it was revealed that massage centre was being run from the said premises and they realized that present case could be the case of robbery and murder. He candidly admitted that murder and robbery are cognizable offence, but no FIR was got registered on that day since no witness confirmed their suspicion. On the contrary, PW23 in his cross-examination deposed that after seeing the dead body and circumstances, he realized that same were giving the impression of some suspicion over the death but he did not get any impression that the deceased was assaulted before her death. Thus, the testimony of PW23 is contrary to the deposition of PW18 as the circumstances found at the places of occurrence were given impression to PW18 that it was a case of robbery and murder whereas the same circumstances were giving the impression to the PW23 that deceased was not assaulted before her death.
89. As per autopsy report Ex. PW21/A as many as 10 external injuries were found on the dead body. Despite that PW23 did not get any impression that deceased was assaulted before her death. Thus, the testimony of PW23 to that extent does not inspire any confidence. If the circumstances were indicating the commission of a cognizable offence of robbery and murder as deposed by PW18, it is not explained by the prosecution why the FIR was not registered immediately. Thus, there is not only delay in lodging the FIR but delay also remained unexplained by the prosecution.
Circumstances produced by the prosecution do not make a complete chain:-
SC No. 42/12 Page 47 of 51 SC No. 64/12State Vs. Shyano Varghese
90. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. while dealing with circumstantial evidence, Apex Court held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of Apex Court, before conviction could be based on circumstantial evidence, must be fully established and the same are:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
91. In the instant case, prosecution has set up a case against the accused on the following circumstantial evidences: (i) that accused had made calls to the deceased on March 9, 2012 in the evening; (ii) that accused had visited the place of occurrence and he was visible in the SC No. 42/12 Page 48 of 51 SC No. 64/12 State Vs. Shyano Varghese CCTV footage of March 9, 2012 during period 6PM to 7PM; (iii) that after 6:40 PM, he switched off his mobile phone and did not make any call from his mobile phone; (iv) that he started using another sim card on his mobile instrument since March 10, 2012; (v) that deceased was murder on March 9, 2012 in the evening approximately when accused visited the place of occurrence for the purpose of massage; (vi) that accused was arrested on March 27, 2012 and made a disclosure statement to the police; (vii) that pursuant to his disclosure statement accused got recovered one laptop bag containing the laptop and credit card of deceased; (viii) that accused pursuant to his disclosure statement got recorded the SIM card of the mobile phone of deceased on the next date i.e. March 28, 2012.
92. As already discussed during the trial, prosecution has failed to even establish that deceased had died on March 9, 2012; it has also failed to establish that deceased was not alive when accused admittedly left from the premises. As already discussed, deceased attended as many as 51 calls on her mobile phones and talked with different 22 persons and prosecution has failed to examine any one among these 22 persons; that prosecution has also failed to establish that accused was arrested on March 27, 2012. On the contrary accused has succeeded to establish that he was lifted from his office by the crime branch of Delhi Police on March 26, 2012 itself; that prosecution has also failed to establish that accused had got recovered any article of deceased pursuant to his disclosure statement; prosecution has also failed to establish that the alleged recovered laptop belonged to the deceased. On the contrary there are evidence to establish that laptop and mobile phone were lying on the table at the place of occurrence on March 14, 2012 and police deliberately did not focus the camera on the table where the said articles were lying.
SC No. 42/12 Page 49 of 51 SC No. 64/12State Vs. Shyano Varghese
93. From the above, it is pellucid that prosecution has miserably failed to establish a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Thus, prosecution case is liable to be fail. Accordingly, I hereby acquit the accused Shyano Varghese from the charge for the offence punishable under Section 302 IPC.
94. As already discussed that there are numerous loopholes and inherent defects in the investigation. Even accused has succeeded to establish that he was not arrested in the manner in which prosecution projected before the Court. There are inherent defects in the inspection of place of occurrence conducted by the crime team. Investigating officer had deliberately not brought on record all the relevant documents/articles found at the place of occurrence. Photographs were taken in such a manner that the same did not depict true picture of the place of occurrence. Needless to say that object of taking photographs of the place of occurrence is to assist the Court to analyse evidence found on the place of occurrence. But the photos taken by the crime team hardly provided the requisite assistance to the courts in analysing the evidences found on the place of occurrence. Generally, crime team takes the photographs either in close-up mode or in portrait mode. It never takes the photo of place of occurrence in landscape mode. If some of the photographs of place of occurrence be also taken in landscape mode, it will provide immense help to the courts to appreciate the evidence available on the place of occurrence. Simultaneously, such photographs shall also minimize the scope of fabrication and manipulation as done in the present case.
95. No purpose can be achieved by such type of sub-standardized SC No. 42/12 Page 50 of 51 SC No. 64/12 State Vs. Shyano Varghese investigation. Such investigation only erodes the faith of public at large in the System as a whole. In the hope and trust that competent authority shall take necessary steps to make the investigation more transparent and reliable, copy of judgment be sent to Commissioner of Police for taking appropriate steps as he deems fit and with direction to issue necessary directions to all the crime teams of all districts to take some photographs of the place of occurrence in landscape mode also and send the compliance report to this Court within four weeks from the date of receipt of the copy of judgment.
Announced in the open Court
on 20th September, 2013 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI.
SC No. 42/12 Page 51 of 51
SC No. 64/12