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Delhi District Court

State vs . Sonu @ Gagan Singh on 25 July, 2013

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II 
         (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 34/2013
Unique Case ID No.: 02404R0023832012

State                                   Vs.          Sonu @ Gagan Singh
                                                     S/o Sh. Guru Dayal Singh
                                                     R/o D­1/20, Ramesh Enclave,
                                                     Delhi
                                                     (Convicted)


FIR No:                                              341/2011
Police Station:                                      Aman Vihar
Under Section:                                       302 Indian Penal Code

Date of committal to session court:                  19.1.2012

Date on which orders were reserved: 12.7.2013

Date on which judgment announced: 12.7.2013


JUDGMENT:

(1) As per the allegations, on 5.11.2011 between 9:00 PM to 7:00 AM at DDA Land, near Pratap Nagar the accused Sonu @ Gagan Singh committed the murder of Gautam by strangulating him with his own belt. CASE OF THE PROSECUTION/ BRIEF FACTS:

(2) The case of the prosecution is that on 6.11.2011 DD 13A was received at Police Station Aman Vihar pursuant to which SI Shubh Ram St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 1 along with Ct. Balbir reached House No. D­1/342, Gali No.7, Pratap Vihar­ III, where they found the dead body of a boy lying on a cot. The name of the deceased was revealed as Gautam and his father namely Shubh Narayan Prashad met the police who informed them that his son Gautam aged about 18 years was a student of 12th class and on 5.11.2011 at about 9:00 PM Gautam received a telephone call from his friend after which he left the house and did not return. According to Shubh Narayan Prashad he made efforts to locate his son and also made inquiries from his friends but he could not be located and in the morning at about 7:00 AM the son of his neighbour namely Rahul informed him that his Gautam was lying dead at DDA Ground on which he went to DDA Ground and saw his son Gautam lying there with a belt tied around his neck. He further informed the police that he removed the belt and threw it near the spot after which he lifted and took the dead body of his son at his house and made a 100 number call. On the basis of the statement of Shubh Narayan Prashad, the present case was got registered.

(3) During investigations a secret information was received that the deceased Gautam and the accused Sonu used to talk to one girl namely Sonia @ Pinki and the murder of Gautam was committed on account of the said girl. Thereafter inquiries were made from Sonia @ Pinki who revealed that she and Sonu were having an affair and on 5.11.2011 Gautam had seen her along with Sonu behind a tree in compromising position on which she expressed her apprehensions to which Sonu assured her that Gautam will St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 2 not be able to speak. At the instance of accused Sonu @ Gagan Singh was apprehended from his house and during interrogation the accused disclosed his involvement in the present case. The accused disclosed that after committing the murder of Gautam he removed his mobile phone from his pants and threw the SIM card in a pond and while committing the offence some thorns got entangled in his hairs after which he went to a barber shop near Police Station where he got himself bare headed. The accused further disclosed to the police that since he could not pay the full charges of barber, he sold the mobile phone of Gautam to a mobile shop. Thereafter the statements of the barber Ali and the mobile shopkeeper namely Shashi Kant were recorded. After completion of investigations charge sheet was filed against the accused Sonu @ Gagan Singh.

CHARGE:

(4) Charge under Section 302 Indian Penal Code was settled against the accused Sonu @ Gagan Singh to which he pleaded not guilty and claimed trial.

EVIDENCE:

(5) In order to prove its case the prosecution has examined as many as twenty eight witnesses as under:

Public witnesses:

(6) PW2 Arun Kumar has deposed that on 06.11.11 he identified the dead body of his nephew Gautam in the mortuary of Sanjay Gandhi St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 3 Hospital vide identification statement recorded by the IO vide Ex.PW­2/A. He has further deposed that dead body after postmortem was handed over to him and his brother Shubh Narayan against receipt. This witness has not been cross­examined on behalf of the accused despite opportunity and his entire testimony has gone uncontroverted.

(7) PW3 Shubh Narayan has deposed that he was doing a private job. He had three daughters and had two sons out of which his son Gautam had been murdered who was 18 years of age and running into 19 years and was a student of 12th class. He has further deposed that on 05.11.2011 after about 8.00 p.m. his son told him that he would be coming within few minutes as he had received some phone call on his mobile phone from his friend but thereafter his son never returned back. He has further deposed that he searched his son in the night at the houses of his friends and and in every gali in his locality till 2.00­2.30 AM He has further deposed that it was winter season so he along with his family remained in the house thereafter, in the early morning, at about 7.00 AM, he was informed by one Rahul, his neighbour who was friend of his son Gautam, that one dead body who was resembling Gautam was lying in the fields. He has further deposed that he immediately rushed towards the said fields and found that his son Gautam was lying dead and his belt was tied around his neck. According to him he opened the belt and left the same there in the fields and took the dead body of his son on his shoulder to his house and called the police by dialing 100 number on which police reached to his house and recorded his St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 4 statement which is Ex.PW1/B bearing his signatures at point A. He has further deposed that the police took him to the place where the dead body of his son was found. He has further deposed that he pointed out the place from where the dead body was found and lifted by him. He has further deposed that Investigating Officer prepared the site plan Ex.PW3/A. He has further deposed that the belt of his son was found lying there only was sealed by the Investigating Officer and taken into possession vide memo Ex. PW­3/B. Witness has deposed that the Crime Branch team also reached at the spot. He has further deposed that the scene of the occurrence was inspected and photographed. According to him thereafter the police along with Crime Team reached at his house and the photographs of the dead body of his son were taken. He has deposed that thereafter the dead body was shifted to the mortuary of Sanjay Gandhi Hospital where the police prepared certain documents. According to him his statement was recorded regarding the identification of dead body of his son which is Ex.PW3/C bearing his signatures at point A and after postmortem, he along with his brother Arun Kumar received the dead body of his son vide executing a receipt.

(8) He has further deposed that on 09.11.11 the Investigating Officer and SHO team reached at his residence and asked him about the house of Sonia. He has further deposed that he pointed out the house of Sonia which was in front of his house. According to him it was revealed that Sonia and accused Sonu @ Gagan were having love affair and his son Gautam saw St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 5 them in a compromising position on 05.11.11 at about 7.00­7.15 PM behind the house near the bushes and in order to finish the evidence, accused Sonu killed his son so that the story of their love affair should not be spread in the locality. He has further deposed that the said Sonia was interrogated by the Investigating Officer in the presence of one lady police who had disclosed the above said facts in his presence. According to the witness thereafter they all went to the house of accused Sonu @ Gagan and on the pointing out by Sonia, accused Sonu @ Gagan was arrested vide arrest memo Ex.PW3/D, his personal search was also conducted and the accused made his disclosure statement vide Ex.PW3/E. He has further deposed that Sonia was discharged by the police and the lady police official went to Police Station and thereafter they along with the accused went to the place of incident where the accused pointed out the same in his presence. The witness has deposed that the accused had disclosed that he had gone to a barber shop to get his hair cut as some of his hair got entangled in the bushes while committing the offence of murder and in order to finish the evidence to that effect, he got his hair cut completely. According to the witness, the police interrogated the said barber whose name was Ali, in his presence and who was running his shop near the Police Station Aman Vihar. He has further deposed that Ali told the police that on the night of 05.11.2011, the accused came at his shop in the night hours for getting his hair cut and there were thorns of the bushes in his hair at the time of cutting. Witness has further deposed that it was further told by the said barber that accused was having St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 6 only ten rupees with him and he had sold the mobile phone of his son which was taken by him after the incident. He has further deposed that the barber also went along with accused to a mobile shop where he sold the same for a sum of Rs. 300/­ and thereafter the accused gave Rs. 20/­ as the charges for cutting to the barber. He has further deposed that he had thrown the SIM of the mobile phone of his son in a pond in the area which was meant for Chhathpuja. He has further deposed that accused led them to the mobile shop belonging to one Shashi Kant and the accused pointed out the said shop. He has further deposed that Investigating Officer interrogated Shashi Kant who produced one mobile phone made in China and was of black colour. He has further deposed that he identified the said mobile phone as that of his son's and the said mobile was taken into possession by the Investigating Officer vide memo Ex.PW3/F. The witness has correctly identified the accused in the court. He has also identified the case property i.e. belt Ex.P1 and the mobile phone Ex.P2.

(9) In his cross­examination, the witness has deposed that on the night of 05.11.11, he did not call the police at 100 number about the missing of his son as he was making efforts of his own with the friends of his son to search him. He has further deposed that he reached within two minutes after receiving the information in the fields i.e. the place where the dead body of his son was recovered. He has further deposed that since he was not in proper condition to see the dead body of his son, he did not call the police at 100 number and it was in fact one of his neighbour namely Sharma St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 7 Ji who had called the police after about 15­20 minutes of the said information. He has further deposed that the information was simultaneously given when the dead body was brought to the house. He has further deposed that at the time when he reached the spot, police did not reach there. According to the witness the police directly reached to his house but he cannot tell the exact time when police reached as he was not seeing his watch but it might be around 7:11 to 7:12 AM . He has further deposed that there was no blood spots lying at the spot and has explained that blood was found in the nostrils of his son. He has further deposed that neither he nor his neighbours took photographs of the dead body of his son when the belt was tied around his neck. He has further deposed that police could not take photographs of his son Gautam when the belt was tied around his neck. He has further admitted that Sonia was having good terms with his son Gautam and has voluntarily explained that she being the neighbour and student of 9th class used to ask some questions from his son who was studying in class 12th. He has denied the suggestion that there was a love affair between Gautam and Sonia. According to him he did not know if Sonia had some liking towards the third person also. He has denied the suggestion that Sonia had ditched his son due to which he could not tolerate the same and committed suicide. He has denied the suggestion that he intentionally removed the belt from the neck of his son to give a colour of murder instead of suicide in the present case. He has further denied the suggestion that he did not see accused Sonu @ Gagan prior to incident and St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 8 has voluntarily explained that the accused used to come and go from their gali an from the fields which were just behind his house. He has deposed that accused Sonu was neither a friend of his son nor he was his enemy. He has denied the suggestion that site plan was not prepared in his presence or at his instance. The witness has denied the suggestion that due to said reason, his signatures did not appear on the site plan. He has further deposed that he did not remember the exact time when the site plan was prepared. According to the witness his statement Ex.PW1/B was recorded by the police after inspection of the spot. He has further deposed that in his statement he did not tell the police about the missing of his son's mobile phone. He has denied the suggestion that accused Sonu was arrested by the police on 07.11.11 and not on 09.11.11. He has further deposed that he could not tell if Ex.PW3/D was signed by him and states that it was later on filled in by the police. The witness has denied the suggestion that accused did not make any disclosure statement before the police in his presence or that he had signed on blank papers and the same was later on converted into disclosure statement of accused. He has denied the suggestion that he had been tutored by the police that day in the morning before deposing in the Court. He has denied the suggestion that accused was arrested on 07.11.11 and at that time, neither himself nor Sonia were present. He has further deposed that he can not tell the exact time taken by police in completing the proceedings on 06.11.2011 at the spot or at his residence. He has further deposed that the dead body was removed to mortuary by the police in the St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 9 morning hours but he did not recollect the exact time. He has also denied the suggestion that Investigating Officer and SHO did not go to the house of Sonia on 09.11.11. He has further denied the suggestion that police did not record statement of Sonia. He has denied the suggestion that Sonia did not point out the house of accused Sonu on 09.11.11 or that it was a false story concocted by police or that he was deposing falsely at the instance of police.

The witness has further denied the suggestion that accused did not point out any place of incident or that the accused did not sign any disclosure statement or that his signatures were obtained on blank papers by the police. He has further denied the suggestion that accused did not point out any barber shop or any mobile shop in his presence or that it was a story cooked by the police in order to solve the case or that neither the statement of barber namely Ali or owner of mobile shop Shashi Kant was recorded in his presence.

(10) The witness has deposed that the mobile phone Ex.P­2 was purchased by Gautam second hand and no cash memo / receipt was obtained by him. He has denied the suggestion that said mobile phone was planted upon the accused by the police with his connivance and due to this reason, the SIM card of the mobile phone not recovered by the police and has voluntarily explained that efforts were made to search SIM Card in the said pond. He has further denied the suggestion that he was deposing falsely on the lines of the police which is nothing but a concocted story just to falsely implicate the accused in the present case. Witness has deposed St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 10 that he was not an eye witness to the incident. He has denied the suggestion that accused has not committed murder of his son and he has been falsely implicated by the Investigating Officer to solve the case. (11) PW5 Sonia has deposed that in the month of November 2011, she was studying in class 9th at Sarvodaya Kanya Vidalaya, Nithari, Delhi, Gautam was her neigbhour and was her good friend. She has further deposed that Gautam was also studying in the same school in the second shift which was for boys in class 12th. She has further deposed that about one month prior to incident, accused Sonu started visiting her gali and started talking with her due to which they became friends. Witness has deposed that Sonu and herself started talking with each other and they became friends in very good terms. She has deposed that on 05.11.11 at about 7.00 PM she was standing behind a tree with accused Sonu and were talking intimately when deceased Gautam saw them in that position on which she got scared and showed her apprehension to Sonu that the deceased might not disclose the said state of affairs to his family members on which Sonu assured her not to worry and he would not make the deceased able to speak to anyone. According to the witness, accused Sonu was aware that she used to talk to Gautam also in a friendly way and she disclosed these facts to the police who recorded her statement. (12) In her cross­examination, Sonia has deposed that police made inquiries from her on 09.11.2011. She has denied the suggestion that in her statement to the police she had stated that she met the accused Sonu on St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 11 05.09.11 and not on 05.11.2011. Witness has been confronted with her statement Ex.PW5/A where the date is mentioned as 5.9.2011. Sonia has deposed that she had no physical relations with accused Sonu at any point of time. She has denied the suggestion that she was not in intimate relationship with accused on 05.11.11 or it was never so. She further denied the suggestion that she was never seen in said talking situation with accused so as to give an occasion for the said alleged apprehension in her mind. She has further denied the suggestion that she was having sexual relationship with deceased Gautam. She has further denied the suggestion that she has been made to understand her deposition to be made before the Court that day by the police officials outside the Court premises. According to the witness she did not know if there was any enmity between deceased and accused prior to that incident. She has deposed that if deceased and accused were known to each other prior to the said incident. She has denied the suggestion that accused Sonu did not meet her at 7 p.m. as deposed by her above. She has further denied the suggestion that she was falsely deposing at the instance of police officials in order to falsely implicate the accused in the present case.

(13) PW6 Ali is a person who is running a barber shop in Ramesh Enclave. He has deposed that on 05.11.11 one boy came for hair cut at about 9.00 or 9.15 PM and asked for bare heading him. The witness has identified the accused in the court as the said boy. He has further deposed that the accused was having some small thorns of bushes in his hair and he St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 12 (witness) asked as to how the said thorns came there in his hair on which he (accused Sonu) asked him to mind his own business. He has further deposed that he bare headed the accused by cleaning all the hair from his head and asked for Rs. 20/­ as charges but the accused gave him only Rs. 10/­. He has further deposed that he asked the accused that he was not working on credit so as to leave his Rs. 10/­ as charges with him on which the accused asked him to accompany him to a mobile shop so that he might sell his mobile phone and would give his remaining amount of Rs. 10/­. He has further deposed that he went along with accused to the mobile shop situated at 100 paces from his shop where the accused took Rs. 10/­ from the mobile shop owner and gave the same to him and he saw that the accused was having a mobile phone handset of Black and white colour. He has further deposed that he came back after taking Rs. 10/­ and the mobile shop owner might have checked the mobile after fixing SIM card in the same. He has further deposed that he did not know as to for what amount the said mobile phone was sold by the accused to the said mobile owner as he had come back after taking Rs.10/­. He has further deposed that on 09.11.11 two police officials along with the accused came to his shop at about 11.00 AM or 12.00 noon and asked him about the said hair cut of the accused to which he replied in affirmative. He has further deposed that the police also asked him for the hair of the accused to be given to them to which he showed inability as he used to throw the cut hair in the MCD vehicle used for taking garbage.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 13 (14) In his cross­examination, the witness Ali has denied the suggestion that in his statement to the police he had given the date as 05.0911 instead of 05.11.11. He has denied the suggestion that accused never came to his shop on the said date at about 9.00 or 9.15 p.m. for getting him bare headed. He denied the suggestion that no such demand of Rs. 20/­ was made or that no such Rs. 10/­ were given by the accused or that no such incident of taking him to the said mobile phone shop for remaining Rs. 10/­ as his charges took place. He denied the suggestion that on 09.11.11 the police did not come with the accused to his shop, as deposed by him above. He denied the suggestion that he did not cut the hair of the accused and for that reason, he could not produce his hair to the police. He denied the suggestion that police had tutored him his deposition before the Court and has volunteered, whatever he remembered and saw, he had deposed accordingly. He denied the suggestion that in order to solve a blind murder case, police has concocted this story and involved him as a witness in the case. He denied the suggestion that he was deposing falsely. (15) PW7 Shashi Kant has deposed that he was running a shop of photostate, mobile shop, recharge coupons for the mobile phones in front of Police Station Aman Vihar. He has further deposed that on 05.11.11 at about 8.45/9.00/9.15 p.m. accused Sonu came along with with a boy to his shop and accused Sonu told him that he wanted to sell his mobile phone of brand G­5 of black colour. The witness has deposed that he checked the mobile phone of the accused Sonu after fixing a new SIM from his shop on St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 14 which he found that it was in a working condition. He has further deposed that he offered accused Sonu Rs. 300/­ for the said mobile phone and he paid him Rs.300/­ for purchasing of said mobile phone, out of which Sonu gave Rs.10/­ to the said boy accompanying him and both the accused Sonu as well as he said boy thereafter left his shop. Witness has further deposed that accused Sonu used to purchase recharged coupons earlier also from his shop as he was residing in Ramesh Nagar itself and that is why he knew him. He has further deposed that on 09.11.11 two police officials came to his shop along with accused at about 11.00 AM and inquired from him as to whether accused Sonu had sold any mobile phone to him on which he produced the said mobile phone before the police which he had purchased from accused Sonu. He has further deposed that police took the said phone and his signatures were also obtained on one paper which is Ex.PW3/F. The witness has further deposed that on 10.11.11 at about 6.00 PM, police again came to his shop and inquired about the SIM used by him for checking the mobile phone of the accused Sonu to which he replied that he had sold the said SIM to one Sagar Dutta on 06.11.11 and thereafter took the police to the house of the said Sagar Dutta at Ramesh Enclave where Sagar Dutta was found present who handed over the SIM along with its container to the police and he informed the police that said Sagar Duta purchased the said SIM on the ID proof of his mother. According to the witness at that time also police got his signatures on one paper which is Ex.PW7/A. He has further deposed that on that day, he came to know that the said mobile St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 15 phone sold to him was stolen one belonging to a person who had been murdered. The witness has correctly identified the accused and also the case property i.e. mobile phone Ex.P2 and SIM card Ex.P3. (16) In his cross­examination, the witness has deposed that as he had started the said business of buying the mobile recently before the incident and being new in the business, he was not knowing that the mobile phones are to be purchased against their previous bills. He has further deposed that he did not check the bill while purchasing the mobile set Ex.P2 but he inquired from the said accused Sonu that if the said mobile was a stolen property or his own property on which accused Sonu replied in negative assuring him that he was his neighbour and the said mobile was not a stolen one. He has further deposed that police did not ask about any bill of the said mobile from him. He has denied the suggestion that the said mobile phone Ex.P2 was planted by the police in the case and he was asked to depose falsely about the said transaction with regard to the said mobile. He has denied the suggestion that for the said reason, the police did not obtain any bill from him for the said mobile phone. He has denied the suggestion that he had signed the blank papers which were later on converted by the police into seizure memos of the said mobile phone and SIM card. He has denied the suggestion that he has been tutored by the police outside the Court premises before deposing in the Court. He has also denied the suggestion that he has deposed falsely at the instance of police in order to concoct the said story. He has also denied the suggestion that accused Sonu St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 16 never visited his shop on 05.11.11.

(17) PW8 Sagar Dutta has deposed that on 06.11.11 at about 10.00 AM he purchased a SIM Card from the shop of Shashi Kant situated at opposite Police Station Aman Vihar for a sum of Rs. 100/­ on the ID proof of his mother Smt. Gita Dutta. He has further deposed that he gave his mobile phone for repair to said Shashi Kant and obtained one mobile handset for time being to use the same by putting the said SIM card in the said obtained mobile for two days and thereafter he did not use the said SIM. He has further deposed that on 10.11.11 at about 6.00 p.m. said Shashi Kant along with two police officials came to his house and the police officials took the said SIM card from him and recorded his statement and he also signed a paper to that effect which is Ex.PW7/A. He has further deposed that he had saved the mobile phone number of the said SIM card in his mobile phone and he had bought his said mobile phone and the said phone number was 8527532252 which the Court observed was the same as that mentioned in the seizure memo Ex.PW7/A. The witness has identified the SIM card Ex.P3 as the same which he had purchased from said Shashi Kant.

(18) In his cross­examination, he has denied the suggestion that he had been tutored by the police outside the Court premises before deposing in the Court. He has denied the suggestion that he had signed the blank paper which was later on converted by the police into a seizure memo. He has also denied the suggestion that he has deposed falsely at the instance of St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 17 police and Shashi Kant. He has further denied the suggestion that no SIM Card was handed over by him to the police.

(19) PW11 Govind Prasad has deposed that on 05.11.11 at about 8.00 p.m., one Pintu and Gautam had come to drink soup at his handcart on which he was selling chicken soup. The witness has deposed that he knew the said persons as they were residing behind the gali in which he was residing. He has further deposed that on the following morning, he came to know that the said Gautam had been murdered. He has further deposed that later on he had come to know that present accused whose name was not known to him but who is otherwise known to him, had committed the murder of Gautam.

(20) In his cross­examination, he has deposed that he had made his statement to the police but he had not stated in his statement to the police that the accused had committed the murder of the deceased. He has denied the suggestion that he has deposed falsely to that effect at the instance of the police as he had been given permission by the concerned police to sell the soup by the side of the road which is otherwise illegal. (21) PW12 Rahul has deposed that on 06.11.11 at about 7.00 AM he was coming back after easing himself from DDA Park of Partap Vihar. He has further deposed that he saw his neighbour namely Gautam lying on the ground in the said park. According to him, he went to his house and informed regarding the said fact to his father on which his father and other persons from the gali went to the said spot. He is not able to tell any reason St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 18 as to why he was lying and has explained that he is unable to tell because he (witness) had seen Gautam from a distance.

(22) In his cross­examination, he has deposed that he had not seen any belt around the neck of said Gautam when he was lying in the said state. He has further deposed that he did not inform the police regarding regarding the same.

(23) PW13 Pintoo has deposed that he was an Entrant in CA. He has further deposed that on 05.11.11 he had given a call to his friend Gautam from his mobile phone No. 9599592370 on his mobile No. 9599592118 and invited him to join him for taking soup. Witness has further deposed that thereafter, Gautam came to him and they both took soup from a small shop in the gali and thereafter they smoked cigarette and thereafter they both went to their respective houses. He has further deposed that at about 9.00 or 9.15 PM the father of Gautam had come to his house to inquire about Gautam to which he replied that he not come to his house. He has further deposed that his father again came to his office at about 10.00 or 10.30 PM and he again showed his ignorance regarding whereabouts of Gautam. He has further deposed that thereafter, on the following morning, he came to know that somebody had committed murder of Gautam. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 19 Witness of medical record:

(24) PW17 Dr. Manoj Dhingra has deposed that he along with Dr. Deepak Sharma had conducted a postmortem on the body of Gautam S/o Shubnarayan on 06.11.11 with alleged history of found dead on 05.11.11.

According to the witness, on external examination the following injuries were found:

1. Ligature mark 31 cm long, round horizontal present all along neck. Ligature mark was also placed 6 cm below right mastoid process, 7 cm below left mastoid process and 6cm below tip of chin, 5 cm above sternal notch and 0.3 cm below posterior hairline. Its width was approx. 5 cm.

2. Abrasion 1 x 0.5 cm soft red over front of nose.

3. Liner abrasion / 0.5 cm below left eye.

4. Liner abrasion 0.5 cm below right eye, two in number.

(25) The witness has further deposed that on internal examination the Neck was observed to be on fine dissection of skin below ligature mark, effusion of blood present in soft tissue and muscles. According to the witness, the death was due to asphyxia consequent to strangulation however viscera has been kept, preserved in common salt, sealed and handed over to Investigating Officer for chemical analysis to rule out any common unknown poisoning or any other substance. The witness has proved his detailed report is Ex.PW17/A bearing his signatures at point A St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 20 and signed by Dr. Deepak Sharma at point B. He has further deposed that the total number of inquest papers were eleven which are Ex.PW17/B1 to Ex.PW17/B6, Ex.PW3/C, Ex.PW2/A, Ex.PW17/B7 to Ex.PW17/B9. He has further proved having given his subsequent opinion on the ligature material i.e. belt which opinion is Ex.PW17/C according to which the belt can be used in causing the strangulation. The witness has identified the case property i.e. belt which is Ex.P­1. This witness has not been cross examined on behalf of the accused despite opportunity in this regard. Nodal Officers:

(26) PW19 Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. has brought the record pertaining to the mobile number 8527532252 issued in the name of Mool Chand Sharma S/o Rewati Lal Sharma R/o H­1/16, Block­D, Aman Vihar, Kirari Suleman Nagar, Delhi, as per the customer application form Ex.PW19/A, voter identify card of Mool Chand Sharma furnished by him is Ex.PW19/B and CDR of the said mobile connection from 04.11.11 to 10.11.11 is Ex.PW19/C. He has placed on record the Certificate U/s. 65 B of Indian Evidence Act is Ex.PW19/D which was signed by him as such Nodal Officer authorized to sign the same. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 21 (27) PW20 Subodh Narayan Jha, Nodal Officer, Etisalat DB Telecom Pvt. Ltd., has brought the record pertaining two mobile numbers 9599592118 and 9599345134. He has deposed that these mobile connections were issued to Smt. Ramwati W/o. Sh. Shyam Kumar R/o.

H­2/359, T­Huts, Jahangir Puri, Delhi and to Sh. Shashi Kant Singh S/o. Sh. Budhan Singh R/o. S­34, S Block, Prem Nagar­II, Kirari Suleman Nagar, Delhi as per their customer application forms. He has placed on record the photocopy of the said forms Ex.PW­20/A and Ex.PW20/B, the CDR of the said mobile connection from 04.11.11 to 10.11.11 are Ex.PW20/C and Ex.PW20/D. He has placed on record the Certificate U/s 65 B of Indian Evidence Act which is Ex.PW20/E. In his cross­examination, the witness has admitted that without taking any ID proof, no connection can be issued. Police / official witnesses:

(28) PW1 HC Jai Singh has deposed that on 6.11.2011 he was posted as Duty Officer at Police Station Aman Vihar and was working as duty officer from 8.00 AM to 4.00 p.m. He has further deposed that at about 8.40 AM he received a rukka through Ct. Balbir sent by SI Sukhram on the basis of which he got the formal FIR recorded on the computer kept in the ordinary course of the business in the Police Station by computer operator which was according to the contents of rukka. Copy of FIR is Ex.PW1/A. He has further deposed that on the original rukka he also made endorsement at Point X which rukka is Ex.PW1/B which he had given in St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 22 original back to Ct. Balbir to be taken to the spot along with computerized printout of the FIR and subsequent investigation was entrusted to Inspector Vijay Kumar. This witness has not been cross­examined on behalf of the accused despite opportunity and his entire testimony has gone uncontroverted.

(29) PW4 HC Gayakwar has deposed that on 06.11.11 he was posted at Police Station Aman Vihar as Duty Officer from 12.00 mid night to 8.00 AM He has further deposed that at about 7.26 AM an information was received regarding strangulation of a boy at gali No. 7 Phase III, Partap Vihar behind Police Station Aman Vihar. He has further deposed that the information was reduced into writing by him vide DD No. 13A copy of which is Ex.PW4/A. He has further deposed that the register also contains DD No. 17A, 19A & 42A of the said date but he was not the author of the same and attested copies of the same are Ex. PW4/B, Ex.PW4/C and Ex.PW4/D. This witness has not been cross­examined on behalf of the accused despite opportunity and his entire testimony has gone uncontroverted.

(30) PW9 SI Anil Kumar has deposed that on 06.11.11 an information was received in the office of Mobile Crime Team to reach D1/342 Pratap Vihar from Police Station Aman Vihar and he along with Ct.

Ravi, photographer reached the said spot where the Investigating Officer of the case SI Shubhram was present. He has further deposed that in front of the said premises, a dead body of a male was lying on a cot who was St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 23 identified as Gautam and accordingly, the photographs of the said dead body were taken. He has further deposed that at a distance about 200 to 250 metres, there was a DDA land on which a cloth waist belt was lying and it was given to understand that the said belt was around the neck of the deceased. He has further deposed that he accordingly prepared his report which is Ex.PW9/A. This witness has not been cross examined on behalf of the accused and his entire testimony has gone uncontroverted. (31) PW10 SI Manohar Lal has deposed that on 06.12.11 he was posted as Draftsman in the N/W District and on that day, he was called by the Investigating Officer inspector Vijay Kumar at Police Station Aman Vihar. He has further deposed that from there, he along with SI Shubhram reached at the spot i.e. DDA land, near Pratap Vihar where on the pointing of SI Shubhram, he took rough notes and measurements and thereafter, on the basis of the same, he prepared scaled site plan which is Ex.PW10/A bearing his signatures at point A. He has further deposed that rough notes had been destroyed by him. In his cross­examination, he has deposed that said site plan was not prepared at the instance of complainant. (32) PW14 Ct. Om Prakash has deposed that on 06.11.11 he was posted at Police Station Aman Vihar as computer operator in the Police Station and on that day he recorded the FIR on the computer as the rukka given by the duty officer. He has further deposed that the said computer was kept in ordinary course of business of the Police Station. He has further deposed that the certificate U/s. 65(B) of Indian Evidence Act St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 24 issued by him has been seen by him and the same is Ex.PW14/A bearing his signatures at point A. In his cross­examination the witness has deposed that he received rukka at 8.40 AM (33) PW15 HC Anil Kumar has deposed that on 06.11.11 he was posted at Police Station Aman Vihar as Head Constable and on that day at about 7.30 AM he along with SHO inspector investigation, driver and operator went to the Gali No. 7, Partap Vihar, Part III for investigation of the present case. He has further deposed that in the gali, the dead body of one boy was found lying on a cot. He has further deposed that on inquiry his name was revealed as Gautam S/o Shubh Narayan. According to him a ligature mark was found on his neck and blood was noticed on his left ear. He has deposed that SI Shubh Ram, Ct. Balbir and Ct. Mugliah were already present at the spot. He has further deposed that statement of father of the deceased was recorded by SI Shubh Ram and he made his endorsement on the same and handed that over to Ct. Balbir for registration of FIR. According to the witness, after leaving behind Ct. Mugliah to guard the dead body, they proceeded for the spot which was at a distance of 250 or 300 yards from there and that was a DDA land acquired vacant land. He has further deposed that Crime Team was already summoned and reached there. He has further deposed that thereafter they all came back at Gali No. 7 and the Incharge Crime Team inspected the said place and the photographer took photographs of the dead body from different angles. The witness has deposed that the dead body was thereafter sent to mortuary of St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 25 SGM Hospital in the custody of Ct. Mugliah and they again went to the said spot with the crime team which was inspected by the team and photographs were also taken. He has further deposed that Ct. Balbir came back with the copy of FIR and original rukka and handed that over to Inspector Vijay Kumar to whom the investigation was entrusted. According to the witness the Investigating Officer prepared the site plan of the spot at the instance of complainant. The witness has deposed that from the spot, one black coloured belt was found lying near the bushes at the spot about which the complainant pointed out that it was a belt of his deceased son which was tied around his neck and the same was removed by him on seeing the condition of his son. Witness has deposed that the said belt was converted into a pullanda and sealed with the seal of SRC and seized vide seizure memo Ex.PW­3/B bearing his signatures at point B. He has further deposed that seal after use was handed over to SI Shubh Ram. He has further deposed that the member of Crime Team also examined and they were discharged from the spot.

(34) According to the witness on 09.11.11 he again joined the investigation of the present case and at about 9.00 AM he along with inspector Vijay Kumar left the Police Station for the investigation of the case and when they reached on the back side of the Police Station at about 9.15 AM a secret informer met them who informed that one boy Sonu who is resident of Ramesh Enclave Pratap Vihar was involved in the murder case of Gautam and he was also having a love affair with Sonia @ Pinki who St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 26 was also a friend of deceased Gautam. He has further deposed that he also informed that said Sonia @ Pinki is a resident of Gali No. 7, Pratap Nagar. He has further deposed that after receiving the said information they went to the house of the complainant and inquired from him about Sonia who told that Sonia is daughter of his neighbour Amar Dass. He has further deposed that on this information, W Ct. Seema was summoned and they all went to the house of Sonia and in the presence of said lady Ct. Seema, Sonia was interrogated and her statement was recorded who disclosed that deceased Gautam saw her in compromising position with the accused Sonu and that is why Sonu committed murder of Gautam out of the fear that the deceased would disclose about their said affair at her home. He has further deposed that thereafter he along with the IO, complainant, lady Ct. and Sonia went to the house of the accused as disclosed by Sonia, at Ramesh Enclave Partap Vihar­III. According to the witness on pointing out by Sonia, accused Sonu was apprehended and he was interrogated and after that he was arrested vide memo Ex.PW3/B, his personal search was conducted vide memo Ex.PW15/A. He has further deposed that the statement of Sonia was recorded and she and lady Ct. Seema were discharged from there. He has further deposed that the accused made disclosure statement Ex.PW3/E wherein he disclosed that he took out the mobile phone of the deceased from his pant and the SIM card of the same was thrown. He has explained that at the place of murder there were bushes having thorns which got entangled with his hair and that was why he went St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 27 to a shop of barber for hair cut and the barber demanded Rs. 20/­ as his charges but he was having only Rs. 10/­ and to arrange the remaining amount, he would sell the mobile phone of the deceased at a nearby shop and hence he took the barber with him to the said shop and after selling the said mobile for a sum of Rs. 300/­, after checking the same by feeding a SIM Card in the same and thereafter he gave Rs. 10/­ to the said barber and the accused pointed out the shop of the said barber and Investigating Officer recorded the statement of the barber, named Alim and thereafter the accused led them to the said shop of mobile phone whose proprietor was Shashi Kant who produced the said mobile of the deceased which was sold to him which was identified by the father of the deceased there and thereafter the same was seized vide seizure memo Ex.PW3/F. He has further deposed that statement of said Shashi Kant was recorded by the IO. According to the witness the colour of the mobile phone was black and white having silver lines on both the sides and it was make of G­Five. He has further deposed that thereafter the accused led them to the place of incident and pointed out the same vide pointing out memo Ex.PW15/B. He has further deposed that thereafter the said SIM card thrown by the accused was searched at the placed pointed out by him but that could not be traced as the said place was a pond used for worship on the festival of Chath Pooja. The witness has identified the accused as well as the case property. (35) In his cross­examination, the witness has deposed that they reached at the spot at about 7.35 AM He has denied the suggestion that St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 28 statement of the complainant was not recorded at the spot. He has further deposed that Ct. Balbir was sent with rukka at about 8.40 AM to Police Station and he came back at the spot at about 9.05 AM He has further deposed that in reaching the said DDA land, it took 2 or 3 minutes. He has further deposed that all the police officials had gone to the said DDA land. He denied the suggestion that the site plan of the spot at the said DDA land was not prepared at the instance of complainant. He further denied the suggestion that no belt was recovered as deposed by him from the place above. He has also denied the suggestion that the same was planted in order to solve the case or that accused has been falsely implicated in order to solve a blind murder case. He has further denied the suggestion that no informer met them nor he gave any such information and the entire story of arrest of accused, his disclosure statement, his hair cut at the said barber shop and resulting alleged sale of mobile phone of the deceased to the said Shashikant as deposed by him was a false story in order to create false and fabricated evidence in order to falsely implicate the accused. He has further denied the suggestion that accused as well as Sonia were seen in compromising position as allegedly disclosed by accused was a false and fabricated story in order to create a false motive for the accused. He has further deposed that the mobile phone Ex.P2 was not having as such any white colour but that was of black colour having lining surrounding that. He further denied the suggestion that no such mobile phone was recovered. He has further deposed that he could not say if IMEI number of the mobile St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 29 phone was detected or not. He further denied the suggestion that the said mobile phone was a planted one due to which IMEI number was not on record. He further denied the suggestion that accused had nothing to do with the murder of deceased Gautam nor the accused was knowing him. He further denied the suggestion that he was deposing falsely. (36) PW16 SI Amarjeet has deposed that on 19.12.11 he was posted at Police Station Aman Vihar. He has further deposed that he was directed to take the subsequent opinion of the Autopsy Surgeon with regard to the belt stated to have been used as weapon of offence as to whether deceased could have been killed with the said belt and accordingly, he took the sealed parcel with the seal of SRC from the MHC (M) and produced the same before Dr. Manoj Dhingra who gave his opinion and the belt was again sealed with the seal of SGMH Mortuary along with the sample seal was handed over to him which again deposited in the malkhana of the Police Station. This witness was not cross­examined on behalf of the accused despite opportunity and the entire testimony has gone uncontroverted. (37) PW18 HC Purshottam has deposed that on 14.12.11 he took a sealed wooden box sealed with the seal of SGMH Mangol Puri, stated to be containing Viscera, from MHC (M) and deposited the same with FSL Rohini vide RC No. 185/21/11 and acknowledgment of the same from FSL was deposited by him with the MHC (M). He has further deposed that so long as the parcel remained in possession the same was not tempered with. This witness has not been cross examined on behalf of the accused despite St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 30 opportunity in this regard.

(38) PW21 Ct. Balbir Singh has deposed that on 06.11.11 he was posted at Police Station Aman Vihar and he was on emergency duty with SI Shubh Ram and on receipt of DD No. 13A at about 7.26 AM regarding the murder at backside of Police Station at Pratap Vihar III, Gali No. 7 where a male dead body was found lying on a wooden cot in front of house No. D­1/342, Partap Vihar III, Gali No. 7 and the name of the deceased was revealed as Gautam. The witness has further deposed that the dead body was inspected by the Investigating Officer and ligature marks were found on his neck. He has further deposed that in the meanwhile SHO Vijay Kataria also reached at the spot with staff. He has further deposed that the father of the deceased whose name was Shubh Narayan got his statement recorded on which SI Shubh Ram prepared the rukka and handed that over to him for getting the case registered. He has further deposed that he went to the Police Station and after registration of the FIR, he came back at the spot and handed over the copy of the FIR and original rukka to SI Shubh Ram. He has further deposed that thereafter he was discharged. (39) The witness has further deposed that on 10.11.11 he again joined the investigation of the present case and he along with Investigating Officer inspector Vijay Kataria went to the photostat shop of Shashi Kant to know about the SIM of mobile phone no. 8527532252 and there they came to know that the said SIM was sold to Sagar Dutta and thereafter they went to the house of Sagar Dutta along with Shashi Kant at Ramesh Enclave where St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 31 Sagar Dutta met them and he told that the said SIM was purchased by him on the ID of his mother. According to the witness, on demand Sagar Dutta produced the SIM from the mobile phone which was taken into possession vide memo Ex.PW7/A. He has further deposed that thereafter he took the accused Sonu @ Gagan accused for medical examination and thereafter he was produced before the Duty MM Court from where he was remanded to Judicial Custody. He has further deposed that his statement was recorded by the Investigating Officer. The witness has identified the accused as well as the SIM Card Ex.P3.

(40) In his cross­examination, the witness has deposed that he left the Police Station at about 7:26 AM, Ct. Mugalia was also accompanying them to the spot and it took about 3­4 minutes to reach at the spot. He has further deposed that SHO with Inspector Investigation might have reached within 15­20 minutes after their reaching at the spot. According to the witness the statement of the complainant was recorded outside the said house number where the dead body was lying on the cot. He has denied the suggestion that no statement of the complainant was recorded at the spot or that it was recorded at the Police Station. He has further deposed that he reached at Police Station with rukka at about 8.30 AM and he came back at the spot at about 9.00 AM He has further deposed that on that day his statement was not recorded by the IO. He has further deposed that his statement was recorded at the place where SIM Ex.P3 was recovered. He has denied the suggestion that that he never visited the shop of Shashi Kant St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 32 or that no SIM card was recovered in his presence or that he was deposing falsely.

(41) PW22 Ct. Mughlaiya has deposed on 06.11.11 he was posted at Police Station Aman Vihar. He has further deposed that on that day, on receipt of DD No. 13A, he along with SI Shubh Ram and Ct. Balbir went to gali no. 7, Partap Vihar­III where a male dead body was found lying on a cot. He has further deposed that a ligature mark on the neck and blood was found coming from the ear of the dead body. He has further deposed that on inquiry, his name was revealed as Gautam S/o. Shubh Narayan. He has further deposed that in the meanwhile, SHO and Inspector Investigation Vijay Kataria with staff reached there. He has further deposed that statement of Shubh Narayan was recorded and a rukka was prepared by SI Shubh Ram who handed that over to Ct. Babir for getting the case registered. He has further deposed that in the meanwhile crime team also reached at the spot who inspected the dead body at the spot and took the photographs. He has further deposed that Investigating Officer gave an application to him for getting the dead body preserved at mortuary SGM Hospital. He has further deposed that he took the dead body to the said hospital and got the dead body preserved. He has further deposed that after some time inspector Vijay Kataria, SI Shubh Ram, complainant and his brother came at the mortuary where the dead body was identified by the complainant and his brother and thereafter PM on the dead body was got conducted and the dead body was handed over to his relatives. He has St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 33 further deposed that after postmortem autopsy surgeon handed over the exhibits to the Investigating Officer which were taken into possession vide memo Ex.PW22/A. (42) In his cross­examination, the witness has deposed that DD No. 13A was brought by Ct. Balbir at about 7.30 AM and they reached at the spot within 5­7 minutes. He has further deposed that he did not notice the exact time when SHO reached at the spot along with Inspector Investigation as he was asked to guard the dead body. He has further deposed that he did not remember the exact time when the statement of the complainant was got recorded and has explained that it was recorded at the spot. He has further explained that since he was guarding the dead body he did not notice how much time it took in recording the statement of the complainant or preparation of rukka. He has further deposed that he did not remember the time when Ct. Balbir went to Police Station with rukka for the same reason. He has further deposed that Crime Team reached at the spot after one hour of their reaching there. According to him his statement was recorded on the day of incident i.e. 06.11.2011. He has deposed that he does not recollect the exact time when the dead body was taken to hospital for postmortem and when SI Shubh Ram and Investigating Officer reached at the mortuary with the relatives of the deceased. He has denied the suggestion that he never joined the investigation in the present case and that is why he was not able to tell the time of any proceedings or any fact. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 34 (43) PW23 SI Shubh Ram has deposed on the same lines as deposed by PW21 Ct. Balbir Singh. According to SI Shubh Ram the complainant was asked to point out the place from where he found the dead body of his son on which he took the police to DD ground which his a vacant land having bushes in it and on inspection, a black coloured belt was found lying which was stated to be tied on the neck of the deceased and was belonging to the deceased as told by his father. According to the witness, the belt was taken into possession vide Ex.PW3/B. The witness has deposed that thereafter the IO prepared the site plan at the instance of the complainant. The witness has deposed that on 6.12.2011 he went to the spot i.e. DDA Land near the bushes along with SI Manohar Lal draftsman who took the rough notes and measurements of the spot at his instance for preparation of scaled site plan. He has identified the belt Ex.P1. (44) In his cross­examination, SI Shubh Ram has deposed that Ct. Balbir reached with DD No. 13A at about 7.30­7.35 AM He has further deposed that he was already out of the Police Station on a call when Ct. Balbir brought the said DD. He has further deposed that he met him just out of the police station. According to him it took about 5­6 minutes in reaching the spot as it was just behind the police station. He has further deposed that when they reached at the spot father of the deceased and other public persons were present at the spot. He has further deposed that the Crime Team was summoned after reaching at the spot and the crime team reached there within 45 minutes or one hour. He has further deposed that St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 35 he could not tell the exact time when the Crime Team was called. He has further deposed that SHO and inspection investigation reached at the spot before arrival of crime team. He has further deposed that he could not tell the exact time of their arrival. He has further deposed that he did not recollect the time when he started recording statement of the complainant. He has also deposed that he did not recollect the time of sending rukka to PS. He has further deposed that the complainant was taken to DDA vacant land after recording his statement and sending the rukka. He denied the suggestion that no belt was found or pointed out by the complainant at the said DDA land. He has denied the suggestion that in collusion with the complainant the said belt was planted upon the accused. He has further deposed that he visited SGM hospital on that day however, he did not accompany the Investigating Officer to the said hospital and states that he went later on. He denied the suggestion that the rough site plan was not prepared at the instance of the complainant. He denied the suggestion that the scaled site plan was not prepared at the instance of the complainant as he took the draftsman to the spot and at his instance the same was got prepared. He denied the suggestion that on 06.06.11 he did not visit the mortuary of SGM hospital. He denied the suggestion that he was deposing falsely being the initial Investigating Officer of the case. (45) PW24 Ct. Sandeep has deposed that on 06.11.2011 he was posted at Central Police Control Room at the PHQ and one Smt. Gayatri Devi informed from mobile phone no. 9650318160, that one boy has been St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 36 killed by strangulation at Partap Vihar, Gali No. 7, Part and at the back of Police Station Aman Vihar. He has further deposed that he recorded this information in the PCR form and transmitted the same for necessary action. He has further deposed that he had brought the original PCR form, which is Ex.PW24/A. This witness has not been cross examined on behalf of the accused despite opportunity.

(46) PW25 Ct. Ravi Malik has deposed that on 06.11.11 he was posted at Mobile Crime Team, Outer District and an information was received from Control Room to reach Partap Vihar behind T.N. Public School near Police Station Aman Vihar. He has further deposed that accordingly he along with crime team reached there where Investigating Officer along with staff was found present and at the instructions of Investigating Officer, he took 13 photographs of the spot from different angles negatives of those photographs are Ex.PW25/A1 to Ex.PW25/A13 and the photographs are Ex.PW25/B1 to Ex.PW25/B13. This witness has not been cross examined on behalf of the accused despite opportunity. (47) PW26 Ct. Amit has deposed that on 06.06.11 he was posted at Police Station Aman Vihar and on that day, he took special report given by the Duty Officer to him and delivered the same to the senior officers i.e. DCP Outer District, Joint CP Northern Range and the concerned MM. He has further deposed that he went on government motorcycle bearing No. DL IS S 3397 at about 9.00­9.15 AM and came back in the Police Station at about 5:15 PM since in between that period the said motorcycle was St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 37 punctured. He has further deposed that his statement was recorded by the Investigating Officer. This witness has not been cross examined on behalf of the accused despite opportunity.

(48) PW27 Ct. Parveen has deposed that on 25.11.11 he was posted at Police Station Aman Vihar and on that day inspector Vijay Kataria handed over two letters to him, one was for Nodal Officer of Bharti Airtel, Delhi Circle and other was for the Nodal Officer of DB Telecom Pvt. Ltd., Delhi Circle for getting the CDRs of mobile phones of the respective companies. However, he does not recollect the said mobile phone numbers. He has further deposed that he did not recollect the period for which the said CDRs were sought by the Investigating Officer. The witness has deposed that he went to the said companies at their respective offices and obtained the CDRs of the mobile phones and after collecting the same, he handed over the same to the Investigating Officer. According to the witness he had seen the CDRs which were brought by him which are Ex. PW­20/A to Ex. PW­20/E and Ex.PW­19/A to Ex. PW­19/D respectively. (49) In his cross­examination, the witness has deposed that the CDRs brought by him from the said offices of the companies were open and one letter was in an envelope. He has deposed that he did not see the envelope and hence, he could not tell what document was lying in that. He has further deposed that the CDRs were received by him on the same day by both the said mobile companies.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 38 (50) PW28 Inspector Vijay Kataria has deposed that on 06.11.11 he was posted at Police Station Aman Vihar as Inspector investigation and on that day he along with HC Anil, SHO Inspector Anil Kumar reached at Partap Vihar in pursuance to the DD No.13A Ex.PW­4/A on which SI Shubh Ram, Ct. Mughlai and Ct. Balbir were already present at the spot. He has deposed that a male dead body aged about 18 years was lying on a cot opposite of house No. D­1/342, Gali No. 7, Partap Vihar, Delhi and they came to know that the name of the deceased as Gautam S/o. Shubh Narayan. According to the witness the body was having ligature mark on its neck and blood was also found on his ear. He has further deposed that the Crime team was already summoned and it reached after their arrival and the Crime team took the photographs of the dead body. According to the witness, SI Shubh Ram recorded the statement of the complainant which is Ex.PW1/B and prepared rukka Ex.PW23/A and handed over the same to Ct. Balbir for registration of the case at Police Station. He has also deposed that thereafter they all went to the spot which was a DDA land, opposite Gali No. 7, Partap Vihar leaving Ct. Mughlia at the spot and a belt of black colour was found lying at the spot which was stated by the deceased's father to be belonging to his deceased son. The witness has further deposed that he took the said belt and kept the same in a pullanda and sealed the same with the seal of SRC and seized vide seizure memo Ex.PW3/B. He has further deposed that the Crime team inspected the said spot and took the photographs Ex.PW25/B­1 to B­13. He has further deposed that St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 39 meanwhile Ct. Balbir came along with the copy of FIR and original rukka and handed over the same to him. According to the witness he prepared the rough site plan Ex.PW3/A at the instance of father of deceased, the complainant. The witness has deposed that he recorded the statement of members of crime team and they were discharged. He has further deposed that he prepared the application for performing autopsy on the dead body which is Ex.PW17/B1 and the dead body was shifted to mortuary SGM Hospital through Ct. Mughlia. He has further deposed that the inquest papers Ex.PW­17/B­2 to B­6, Ex. PW­3/C, Ex. PW­2/A, Ex. PW­17/B­7, Ex. PW­17/B­8 & Ex. PW­17/B­9 were prepared and the postmortem on the dead body of deceased Gautam was got conducted vide PM report Ex. PW­17/A. According to the witness after postmortem the dead body was handed over to relatives of the deceased. He has further deposed that the autopsy surgeon after the postmortem handed over the sealed exhibits and viscera of deceased which were taken into possession by him vide memo Ex.PW­22/A. (51) According to the witness, on 09.11.11 he along with HC Anil was present in the area of Partap Vihar for investigation of the present case when a secret information was received by him that accused Sonu @ Gagan and deceased Gautam were in love with a girl namely Pinki @ Sonia. He has further deposed that on this information, they reached at the house of deceased where the father of deceased met him and on inquiry he told him St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 40 that Pinky @ Sonia was residing in his neighbourhood and she was having friendly relations with his son. According to the witness thereafter he along with HC Anil and complainant went to the house of Pinki @ Sonia and he called one lady Ct. Seema from Police Station and in the presence of said lady Ct. Seema, he made inquiries from Pinki. He has further deposed that she told them that she was having good friendly relations with deceased Gautam and one month prior to the incident she developed friendship with accused Sonu who used to pass through her gali. He has further deposed that she further told that on 05.11.11 at about 7.00 PM. she was standing at the corner of her gali behind a tree, opposite DDA land with accused Sonu and was indulged in kissing with each other and were talking and was seen by deceased Gautam due to which she felt nervous & scared and she told Sonu that Gautam would disclose all these things to her family members on which accused gave assurance to her she need not to worry and that he would finish him today itself. He has further deposed that he recorded the statement of Pinki U/s. 161 Cr.P.C. at her house. He has further deposed that he along with Pinky, complainant, HC Anil and Lady Ct. Seema went to Ramesh Enclave where Pinky pointed out towards the house of the accused Sonu and when they entered in the house, accused Sonu was found present there inside his house. He has further deposed that his all hair were cut at that time and Pinky had pointed out towards the accused Sonu. He has further deposed that he apprehended the accused and interrogated him. Thereafter, he was arrested vide memo Ex.PW­3/D, her personal search St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 41 was conducted vide memo Ex.PW­15/A. He has further deposed that accused made disclosure statement which is Ex.PW­3/E. He has further deposed that Pinky and Lady Ct. were discharged from there. He has further deposed that pursuant to his disclosure statement accused Sonu took them to the shop of Ali the barber from where he got his hair cut on the night on 05.11.11. He has further deposed that he recorded statement of Ali who had told that the accused came to his shop with thorns of bushes in his hair and he asked Ali to get his hair cut and after his hair cut accused could not give Rs. 20/­ demanded by barber as accused was having only Rs. 10/­ with him and told that he would sell his mobile phone and then would give balance amount of Rs. 10/­ to him. He has further deposed that he recorded the statement of Ali U/s. 161 Cr. P.C. His shop is opposite to Police Station Aman Vihar. He has further deposed that accompanying the said barber along with with them, accused took them to the shop of Shashi Kant who was selling mobile phones. He has further deposed that accused pointed out the shop where he had sold the mobile to Shashi Kant on the night of 05.11.11. He has further deposed that Shashi Kant produced the mobile phone sold by the accused on the said night to him. He has further deposed that the said mobile phone was identified by complainant as that of his deceased son Gautam. He has further deposed that the mobile phone was make G­Five of black and silver colour. He has further deposed that he took the said mobile phone into possession vide memo Ex.PW3/F and he recorded statement of Shashi Kant U/s. 161 Cr. P.C. He has further deposed St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 42 that thereafter he discharged the complainant, Shashi Kant and Ali and he along with accused and HC Anil went to the spot where accused pointed out the place of incident which is Ex.PW15/B. He has further deposed that thereafter the accused was produced before the concerned Court and his one day Police Custody Remand was obtained vide his application Ex.PW28/A. He has further deposed that on 10.11.11 he along with Ct. Balbir took the accused to the shop of Shashi Kant in the morning and he inquired from him about the SIM by putting which he checked the said mobile at the time of purchasing from the accused on the night of 05.11.11. He has further deposed that he replied that he had sold the SIM to one Sagar Dutta resident of Ramesh Enclave, opposite Police Station Aman Vihar. He has further deposed that Shashi Kant took them to house of Sagar Dutta who produced the said SIM which was on the ID of his mother Smt. Geeta Dutta and the same was taken into possession by him vide memo Ex.PW7/A. He has further deposed that thereafter the accused was produced before the concerned Court from where he was remanded to JC.

(52) According to the witness on 06.12.11 SI Manohar Lal the draftsman was called in the Police Station and from there he along with him and SI Shubh Ram went to the spot where he took the rough notes and measurements at the instance of SI Shubh Ram. He has further deposed that thereafter on 07.12.11, he prepared scaled site plan Ex.PW10/A and handed over to him. He recorded the statement of SI Shubh Ram and SI Manohar Lal. He has further deposed that on 14.12.11 he sent exhibits to FSL and St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 43 obtained subsequent opinion of doctor on the ligature material which is Ex.PW17/C. He has further deposed that he collected the CDRs of the mobile phones of deceased and of Shashi Kant and of Sagar Dutta from their concerned companies and the same are Ex.PW­19/A to Ex.PW­19/D and Ex.PW­20/A to Ex.PW­20/E respectively. He has further deposed that he also collected the PCR form Ex.PW­24/A. He has further deposed that he recorded the statement of public witnesses Rahul, Pinto and Gobind Prasad. He has further deposed that he obtained the FSL result which is Ex. PX and tendered the same in the Court.

(53) In his cross­examination, witness has deposed that the investigation was handed over to him after registration of FIR but he had already reached the spot at about 8.00 AM He has further deposed that the rukka was sent on 06.11.11 but date of incident was of the night intervening between 05/06.11.11. He has further deposed that he had called the Crime Team, which Crime Team reached at the spot at about 8.35 AM. He has further deposed that the site plan without scale was prepared at the instance of the complainant in the presence of SI Shubh Ram but the signatures of the complainant were not taken on that. He has further deposed that the site plan was prepared on 06.11.11. He has further deposed that Ct. Balbir came to the spot with the rukka and copy of FIR at about 9.20 AM. He denied the suggestion that no such secret informer met him or that he received no secret information or that in connivance with the complainant, he had concocted the a false story in order to falsely implicate the accused. He has St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 44 further deposed that he had gone to the house of the Sonia on 09.11.11 at about 9.45 AM and at that time lady Ct. Seema was accompanying them. He has further deposed that there is typing mistake in the charge­sheet of the date 05.09.11 when Sonia met with the accused which date should have been 05.11.11 and to be read as such. He has further deposed that there is clerical mistake to that effect also in recording the statement of said Sonia as well as that of PW Ali and Shashi Kant also. He has further deposed that they reached the house of the accused Sonu at about 10.15 AM He denied the suggestion that there was no haircut of accused Sonu at that time or that he took him to the Police Station where he got the haircut done. He denied the suggestion that no disclosure statement was made by accused Sonu or it was fabricated by him by getting his signatures only. He denied the suggestion that no shop of barber was pointed out by accused nor he pointed out the shop of Shashikant nor he pointed out the place of occurrence nor he pointed out the SIM card thrown in the pond. He has also denied the suggestion that mobile phone and belt were planted in connivance with the complainant in order to solve a blind murder case or that the accused has been falsely implicated in the present case.

STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:

(54) After completion of prosecution evidence the statement of the accused has been recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him, which he has denied. He has stated St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 45 that he is not known to deceased Gautam nor he ever met him. According to him, Sonia is his friend. He has further stated that he is a married man and having a little child and the Investigating Officer in connivance with the complainant falsely implicated him in this case. The accused has also stated that he had no grudge with the deceased. According to the accused, he is innocent and has been falsely implicated in this case. Though initially the accused Sonu @ Gagan Singh had stated that he wanted to examine witness in his defence for which he was granted an opportunity but later despite opportunity he did not examine any witness in his defence.

COURT WITNESSES:

(55) Since there was a confusion with regard to the ownership of SIM No. 8527532252 this Court has examined Vinod, Mool Chand Sharma and Amit Gupta as Court Witnesses.

(56) CW1 Sh. Mool Chand Sharma has deposed that he had never purchase any SIM bearing No. 8527532252. According to him, about one and a half year to two years ago he got converted his reliance No. 8010336877 from Reliance Company to Airtel Company through a Shop Keeper namely Amit Gupta R/o F­91, Aman Vihar, Delhi pursuant to which he handed over his ID proof and one photograph to him which document is Ex.PW19/A bearing his photograph and the document Ex.PW19/B is his ID proof but he never applied for the mobile number 8527532252. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 46 (57) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he never used the number 8527532252 and had only given his ID proof to the shop keeper Amit Gupta from where he had got his Reliance number changed to Airtel and has voluntarily explained that the number remained same and the service provider was changed from Reliance to Airtel. According to him, Amit Gupta had his shop at Aman Vihar only. He has not been cross­examined by the Ld. Addl. PP for the State.

(58) CW2 Sh. Amit Gupta has deposed that he has a shop of mobile phones at his residence i.e. F­91, Aman Vihar, Delhi. According to him, about one and a half years to two years ago, his friend Mool Chand came at his shop to transfer his mobile number 8010336877 from Reliance Company to Airtel Company via MNP (Mobile Number Portability) and handed over his ID proof and the photographs to him for the above said change of his mobile number from Reliance to Airtel. He has further deposed that he handed over the documents to Vinod for the above said transfer. The witness has also deposed that the photograph shown in Ex.PW19/B and the ID proof Ex.PW19/B was given by Mool Chand to him which was handed over by him to Vinod for the above said change and has clarified that Mool Chand never applied for the mobile number 8527532252.

(59) In his cross­examination by the Ld. Defence Counsel the witness has deposed that Vinod was the Salesman for the Airtel SIM Cards St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 47 and he had given the ID proof of Mool Chand to Vinod since Mool Chand wanted to change the service provider from Reliance to Airtel in respect of his number 8010336877 but he is unable to tell as to how his ID proof stands attached with the record of Sagar Dutta and has voluntarily explained that only Vinod can tell about this mix­up. He has not been cross­examined by the Ld. Addl.PP for the State despite opportunity. (60) CW3 Vinod has deposed that he has a shop of mobile at A­129, Ramesh Enclave, Kirari, Suleman Nagar, Delhi­86 and also used to work as a Salesman for Bharti Airtel Ltd. According to the witness, he used to visit the shops of mobile phones to provide the SIM of Airtel and to collect the ID proofs and the photograph of the customers from the shop which is used to submit to the Distributor of the Airtel. He has testified that he frequently visited the shop of Shashi Kant at Ramesh Enclave and Amit Gupta of Aman Vihar and about one and a half to two years back he collected the ID proofs and the photographs of Sagar Dutta S/o Rajender Dutta for the Airtel number from the shop of Shashikant and also collected the ID proof and photograph of Mool Chand Sharma S/o Revti Lal Sharma from the shop of Amit Gupta for transfer of Reliance number to the Airtel number through MNP. He has further deposed that he handed over these documents to the distributor. According to him, the Customer Application form Ex.PW19/A bearing the photograph of Mool Chand bear his mobile number 9999889839 and Ex.PW19/B is the ID proof of Mool Chand but the SIM of mobile number 8527532252 was never handed over to Mool Chand Sharma. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 48

He has clarified that it was by mistake that the documents given by Sagar Dutta and Mool Chand Sharma got exchanged and due to mistake that photograph of Mool Chand and particulars of Mool Chand were filled in the customer application form of SIM of mobile number 8527532252. According to him, the SIM of mobile number 8527532252 was handed over to Sagar Dutta and the mobile number provided by Mool Chand Sharma of Reliance was converted to Airtel through MNP in favour of Mool Chand Sharma.

(61) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he remained as a salesman for Airtel only for four months and used to supply SIM card of Airtel to both Shashikant who had sold the SIM of Airtel to Sagar Dutta and to Amit Gupta who had sold the SIM of Airtel to Mool Chand on his old number. According to the witness, the changing of the ID proof in respect of Mobile 8527532252 which was sold by Shashi Kant to Sagar Dutta was made by him by mistake as he attached the ID proof of Mool Chand on the Customer Application Form. He has not been cross­examined by the Ld. Addl. PP for the State despite opportunity.

FINDINGS:

(62) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have considered the written memorandum of arguments filed by the parties and also gone St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 49 through the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.

 Sr.          Name of the                                   Details of deposition
 No.            witness

Public Witnesses

1.       Arun Kumar                   He is the uncle of the deceased Gautam who has proved  
         (PW2)                        that on 06.11.11 he identified the dead body of his nephew  

Gautam in the mortuary of Sanjay Gandhi Hospital vide identification statement recorded by the IO vide Ex.PW2/A and after postmortem the dead body was handed over to him and his brother Shubh Narayan against receipt.

2. Shubh Narayan He is the father of the deceased and has deposed on the (PW3) following aspects:

1. That his son Gautam 18 years of age and was a student of 12th class.

2. That on 05.11.2011 after about 8.00 PM his son told him that he would be coming within few minutes as he had received some phone call on his mobile phone from his friend but thereafter his son never returned back.

3. That he searched his son in the night at the houses of his friends and and in every gali in his locality till 2.00­2.30 AM.

4. That in the early morning at about 7.00 AM, he was informed by one Rahul, his neighbour who was friend of his son Gautam, that one dead body who was resembling Gautam was lying in the fields.

5. That he immediately rushed towards the said fields and found that his son Gautam was lying dead and his belt was tied around his neck.

6. That he opened the belt and left the same there in the fields and took the dead body of his son on his shoulder to his house and called the police by dialing 100 number on which police reached to his St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 50 house and recorded his statement which is Ex.PW1/B.

7. That the police took him to the place where the dead body of his son was found and he pointed out the place from where the dead body was found and lifted by him.

8. That Investigating Officer prepared the site plan Ex.PW3/A.

9. That the belt of his son was found lying there only was sealed by the Investigating Officer and taken into possession vide memo Ex.PW3/B.

10. That the Crime Team also reached at the spot after which the scene of the occurrence was inspected and photographed.

11. That thereafter the dead body was shifted to the mortuary of Sanjay Gandhi Hospital and his statement was recorded regarding the identification of dead body of his son which is Ex.PW3/C.

12. That after postmortem, he along with his brother Arun Kumar received the dead body of his son.

13. That on 09.11.11 the Investigating Officer and SHO team reached at his residence and asked him about the house of Sonia on which he pointed out the house of Sonia which was in front of his house.

14. That it was revealed that Sonia and accused Sonu @ Gagan were having love affair and his son Gautam saw them in a compromising position on 05.11.11 at about 7.00­7.15 PM behind the house near the bushes and in order to finish the evidence, accused Sonu killed his son so that the story of their love affair should not spread in the locality.

15. That Sonia was interrogated by the Investigating Officer in the presence of one lady police who had disclosed the above said facts in his presence.

16. That thereafter they all went to the house of accused Sonu @ Gagan and on the pointing out by Sonia, accused Sonu @ Gagan was arrested vide arrest memo Ex.PW3/D, his personal search was also conducted and the accused made his disclosure St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 51 statement vide Ex.PW3/E.

17. That they along with the accused went to the place of incident where the accused pointed out the same in his presence.

18. That the accused had disclosed that he had gone to a barber shop to get his hair cut as some of his hair got entangled in the bushes while committing the offence of murder and in order to finish the evidence to that effect, he got his hair cut completely.

19. That the police interrogated the said barber whose name was Ali, in his presence and who was running his shop near the Police Station Aman Vihar.

20. That Ali told the police that on the night of 05.11.2011, the accused came at his shop in the night hours for getting his hair cut and there were thorns of the bushes in his hair at the time of cutting.

21. That it was further told by the said barber that accused was having only ten rupees with him and he had sold the mobile phone of his son which was taken by him after the incident.

22. That the barber also went along with accused to a mobile shop where he sold the same for a sum of Rs.

300/­ and thereafter the accused gave Rs. 20/­ as the charges for cutting to the barber.

23. That the accused disclosed that he had thrown the SIM of the mobile phone of his son in a pond in the area which was meant for Chhathpuja.

24. That the accused led them to the mobile shop belonging to one Shashi Kant and the accused pointed out the said shop.

25. That Investigating Officer interrogated Shashi Kant who produced one mobile phone made in China and was of black colour.

26. That the mobile phone of his son was taken into possession by the Investigating Officer vide memo Ex.PW3/F. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 52 The witness has correctly identified the accused Sonu @ Gagan in the court. He has also identified the case property i.e. belt Ex.P1 and the mobile phone Ex.P2.

3. Sonia (PW5) This witness has deposed on the following aspects:

1. That in the month of November 2011, she was studying in class 9th at Sarvodaya Kanya Vidalaya, Nithari, Delhi and the deceased Gautam was her neigbhour and was her good friend.

2. That Gautam was also studying in the same school in the second shift which was for boys in class 12th.

3. That about one month prior to incident, accused Sonu started visiting her gali and started talking with her due to which they became friends.

4. That she and Sonu started talking with each other and they became friends in very good terms.

5. That on 05.11.11 at about 7.00 PM she was standing behind a tree with accused Sonu and were talking intimately when deceased Gautam saw them in that position on which she got scared and showed her apprehension to Sonu that the deceased might not disclose the said state of affairs to his family members on which Sonu assured her not to worry and he would not make the deceased able to speak to anyone.

6. That accused Sonu was aware that she used to talk to Gautam also in a friendly way and she disclosed these facts to the police who recorded her statement.

4. Ali (PW6) He is a person who is running a barber shop in Ramesh Enclave. He has deposed on the following aspects:

1. That on 05.11.11 the accused Sonu came for hair cut at about 9.00 or 9.15 PM and asked for bare heading him.

2. That the accused was having some small thorns of bushes in his hair and he (witness) asked him as to how the said thorns came there in his hair on which he (accused Sonu) asked him to mind his own business.

3. That he bare headed the accused by cleaning all the hair from his head and asked for Rs.20/­ as charges St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 53 but the accused gave him only Rs.10/­.

4. That he asked the accused that he was not working on credit so as to leave his Rs.10/­ as charges with him on which the accused asked him to accompany him to a mobile shop so that he might sell his mobile phone and would give his remaining amount of Rs.10/­.

5. That he went along with accused to the mobile shop situated at 100 paces from his shop where the accused took Rs.10/­ from the mobile shop owner and gave the same to him.

6. That he saw that the accused was having a mobile phone handset of Black and white colour.

7. That he came back after taking Rs.10/­ and the mobile shop owner might have checked the mobile after fixing SIM card in the same.

8. That he did not know as to for what amount the said mobile phone was sold by the accused to the said mobile owner as he had come back after taking Rs.10/­.

9. That on 09.11.11 two police officials along with the accused came to his shop at about 11.00 AM or 12.00 noon and asked him about the said hair cut of the accused to which he replied in affirmative.

10. That the police also asked him for the hair of the accused to be given to them to which he showed inability as he used to throw the cut hair in the MCD vehicle used for taking garbage.

5. Shashi Kant He was running a shop of photostate, mobile shop, (PW7) recharge coupons for the mobile phones in front of Police Station Aman Vihar and has deposed as under:

1. That on 05.11.11 at about 8.45/9.00/9.15 PM accused Sonu came along with with a boy to his shop and accused Sonu told him that he wanted to sell his mobile phone of brand G­5 of black colour.

2. That he checked the mobile phone of the accused Sonu after fixing a new SIM from his shop on which he found that it was in a working condition.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 54

3. That he offered accused Sonu Rs.300/­ for the said mobile phone and paid him Rs.300/­ for purchasing of said mobile phone, out of which Sonu gave Rs.

10/­ to the said boy accompanying him and both the accused Sonu as well as he said boy thereafter left his shop.

4. That accused Sonu used to purchase recharged coupons earlier also from his shop as he was residing in Ramesh Nagar itself and that is why he knew him.

5. That on 09.11.11 two police officials came to his shop along with accused at about 11.00 AM and inquired from him as to whether accused Sonu had sold any mobile phone to him on which he produced the said mobile phone before the police which he had purchased from accused Sonu.

6. That police took the said phone and his signatures were also obtained on one paper which is Ex.PW3/F.

7. That on 10.11.11 at about 6.00 PM, police again came to his shop and inquired about the SIM used by him for checking the mobile phone of the accused Sonu to which he replied that he had sold the said SIM to one Sagar Dutta on 06.11.11.

8. That he took the police to the house of the said Sagar Dutta at Ramesh Enclave where Sagar Dutta was found present who handed over the SIM along with its container to the police and he informed the police that said Sagar Duta purchased the said SIM on the ID proof of his mother.

9. That police got his signatures on one paper which is Ex.PW7/A.

10. That on that day, he came to know that the said mobile phone sold to him was stolen one belonging to a person who had been murdered.

6. Sagar Dutta He is the mobile shop owner who has deposed as under:

(PW8) 1. That on 06.11.11 at about 10.00 AM he purchased a SIM Card from the shop of Shashi Kant situated at opposite Police Station Aman Vihar for a sum of Rs. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 55

100/­ on the ID proof of his mother Smt. Gita Dutta.

2. That he gave his mobile phone for repair to said Shashi Kant and obtained one mobile handset for time being to use the same by putting the said SIM card in the said obtained mobile for two days and thereafter he did not use the said SIM.

3. That on 10.11.11 at about 6.00 PM said Shashi Kant along with two police officials came to his house and the police officials took the said SIM card from him and recorded his statement and he also signed a paper to that effect which is Ex.PW7/A.

4. That he had saved the mobile phone number of the said SIM card in his mobile phone and he had bought his said mobile phone and the said phone number was 8527532252 which the Court observed was the same as that mentioned in the seizure memo Ex.PW7/A. The witness has identified the SIM card Ex.P3 as the same which he had purchased from said Shashi Kant.

7. Govind Prasad This witness has deposed on the following aspects:

(PW11) 1. That on 05.11.11 at about 8.00 PM one Pintu and Gautam had come to drink soup at his handcart on which he was selling chicken soup.

2. That he knew the said persons as they were residing behind the gali in which he was residing.

3. That on the next day morning, he came to know that the said Gautam had been murdered.

4. That later on he had come to know that present accused whose name was not known to him but who is otherwise known to him, had committed the murder of Gautam.

8. Rahul (PW12) This witness has deposed on the following aspects:

1. That on 06.11.11 at about 7.00 AM he was coming back after easing himself from DDA Park of Partap Vihar.

2. That he saw his neighbour namely Gautam lying on the ground in the said park.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 56

3. That he went to his house and informed regarding the said fact to his father on which his father and other persons from the gali went to the said spot.

4. That he is not able to tell any reason as to why he was lying and has explained that he is unable to tell because he (witness) had seen Gautam from a distance.

9. Pintoo (PW13) He is the friend of deceased Gautam and has deposed on the following lines:

1. That on 05.11.11 he had given a call to his friend Gautam from his mobile phone No. 9599592370 on his mobile No. 9599592118 and invited him to join him for taking soup.

2. That thereafter, Gautam came to him and they both took soup from a small shop in the gali and thereafter they smoked cigarette and thereafter they both went to their respective houses.

3. That at about 9.00 or 9.15 PM the father of Gautam had come to his house to inquire about Gautam to which he replied that he had not come to his house.

4. That the father of Gautam again came to his office at about 10.00 or 10.30 PM and he again showed his ignorance regarding whereabouts of Gautam.

5. That on the next day morning, he came to know that somebody had committed murder of Gautam.

10. Dr. Manoj He is the Autopsy Surgeon who has proved the postmortem Dhingra (PW17) report of the deceased which is Ex.PW17/A according to which on external examination the following injuries were found:

1. Ligature mark 31 cm long, round horizontal present all along neck. Ligature mark was also placed 6 cm below right mastoid process, 7 cm below left mastoid process and 6cm below tip of chin, 5 cm above sternal notch and 0.3 cm below posterior hairline. Its width was approx. 5 cm.

2. Abrasion 1 x 0.5 cm soft red over front of nose.

3. Liner abrasion / 0.5 cm below left eye.

4. Liner abrasion 0.5 cm below right eye, two in number.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 57

The witness has proved that on internal examination the Neck was observed to be on fine dissection of skin below ligature mark, effusion of blood present in soft tissue and muscles. He has proved having opined that the death was due to asphyxia consequent to strangulation however viscera has been kept, preserved in common salt, sealed and handed over to Investigating Officer for chemical analysis to rule out any common unknown poisoning or any other substance. He has also proved the inquest papers which are Ex.PW17/B1 to Ex.PW17/B6, Ex.PW3/C, Ex.PW2/A, Ex.PW17/B7 to Ex.PW17/B9.

He has further proved having given his subsequent opinion on the ligature material i.e. belt which opinion is Ex.PW17/C according to which the belt can be used in causing the strangulation.

Nodal Officers

11. Vishal Gaurav He is the Nodal Officer, Bharti Airtel Ltd. and has proved (PW19) that:

1. The mobile number 8527532252 issued in the name of Mool Chand Sharma S/o Rewati Lal Sharma R/o H­1/16, Block­D, Aman Vihar, Kirari Suleman Nagar, Delhi, as per the customer application form Ex.PW19/A, voter identify card of Mool Chand Sharma furnished by him is Ex.PW19/B.

2. The Call Detail Record of the said mobile connection from 04.11.11 to 10.11.11 is Ex.PW19/C.

3. Certificate U/s. 65 B of Indian Evidence Act is Ex.PW19/D.

12. Subodh Narayan He is the Nodal Officer from Etisalat DB Telecom Pvt. Ltd.

Jha (PW20) who has proved that:

1. Mobile number 9599592118 was issued to Smt. Ramwati W/o. Sh. Shyam Kumar R/o. H­2/359, T­ Huts, Jahangir Puri, Delhi.

2. Mobile number 9599345134 was issued to Sh.

Shashi Kant Singh S/o. Sh. Budhan Singh R/o. S­34, S Block, Prem Nagar­II, Kirari Suleman Nagar, Delhi.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 58

3. The Customer Application Forms of both the mobile numbers are Ex.PW20/A and Ex.PW20/B.

4. The Call Detail Record of the said mobile connections from 04.11.11 to 10.11.11 are Ex.PW20/C and Ex.PW20/D.

5. Certificate U/s 65 B of Indian Evidence Act which is Ex.PW20/E. Police / Official witnesses:

13. HC Jai Singh He is a formal witness being the Duty Officer who has (PW1) proved the copy of FIR which is Ex.PW1/A and his endorsement on the rukka which is Ex.PW1/B.

14. HC Gayakwar He is also a formal witness being the Duty Officer who has (PW4) proved the DD No.13A copy of which is Ex.PW4/A; DD No. 17A copy of which is Ex.PW4/B; DD No.19A which is Ex.PW4/C and DD No.42A which is Ex.PW4/D.

15. SI Anil Kumar He is again a formal witness being the Crime Team (PW9) Incharge who has proved having inspected the spot and prepared his report which is Ex.PW9/A.

16. SI Manohar Lal He is also a formal witness being the Draftsman who has (PW10) proved having prepared the scaled site plan which is Ex.PW10/A.

17. Ct. Om Prakash He is again a formal witness being the Computer Operator (PW14) who has proved having recorded the FIR on the official computer and has proved the certificate U/s. 65(B) of Indian Evidence Act issued by him which is Ex.PW14/A.

18. HC Anil Kumar This witness had reached the spot along with the Inspector (PW15) Investigations Vijay Kumar and has proved having joined the investigations with him. Apart from the documents proved by the other witnesses, he has proved the personal search memo of the accused which is Ex.PW15/A and pointing out memo which is Ex.PW15/B.

19. SI Amarjeet This witness has proved having taken the subsequent (PW16) opinion of the Autopsy Surgeon on the belt. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 59

20. HC Purushottam This witness has proved having taken the sealed wooden (PW18) box containing Viscera from MHC (M) and deposited the same with FSL Rohini vide RC No. 185/21/11.

21. Ct. Balbir Singh This witness had visited the spot along with SI Shubh Ram (PW21) and has proved the various proceedings conducted by them.

22. Ct. Mughaliya He had also visited the spot alongiwht SI Shubh Ram and (PW22) Ct. Balbir Singh and has proved the seizure memo of the exhibits handed over to him by the Autopsy Surgeon.

23. SI Shubh Ram This witness has proved having visited the spot along with (PW23) Ct. Balbir Singh and Ct. Mughaliya. He has proved having convicted the various proceedings which have been proved by the earlier witnesses.

24. Ct. Sandeep He is a formal witness being posted at Central Police (PW24) Control Room at the PHQ and has proved the PCR form which is Ex.PW24/A.

25. Ct. Ravi Malik He is also a formal witness being the Crime Team Incharge (PW25) who has proved the photographs of the spot from different angles negatives of which photographs are Ex.PW25/A1 to Ex.PW25/A13 and the photographs are Ex.PW25/B1 to Ex.PW25/B13.

26. Ct. Amit (PW26) He is also a formal witness being the Special Messenger who has proved having delivered the Special Report to the senior officers i.e. DCP Outer District, Joint CP Northern Range and the concerned MM.

27. Ct. Parveen This witness has proved having gone to the Nodal Officer (PW27) of Bharti Airtel, Delhi Circle and other was for the Nodal Officer of DB Telecom Pvt. Ltd., Delhi Circle and collected the CDRs which are Ex.PW20/A to Ex.PW20/E and Ex.PW19/A to Ex. PW19/D.

28. Inspector Vijay He is the Investigating Officer of the present case and apart Kataria (PW28) from the documents proved by the various others witnesses, he has proved having obtained the Police Custody Remand of the accused vide his application Ex.PW28/A and also having obtained the FSL result which is Ex.PX. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 60

(63) Coming now to the microscopic evaluation of the evidence against the accused.

Motive of the offence:

(64) The case of the prosecution is that the sole motive of the offence was to ensure that the deceased Gautam who had seen the accused Sonu @ Gagan Singh with a young girl Sonia who was studying in the same school and was her neighbour in compromising / intimate position.

Fearing that Gautam may disclose this fact to somebody, the accused Sonu @ Gagan in order to remove all traces of the same killed Gautam by strangulating him with his own belt. In this regard the prosecution has placed its heavy reliance on the testimony of Ms. Sonia who has been examined as PW5.

(65) Before coming to the evidence on merit, I may observe that Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 61 the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

(66) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (67) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].

(68) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 62 commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].

(69) Applying the settled principles of law to the facts of the present case, I may observe that Sonia (PW5) in her testimony before the Court has very specifically deposed that on 5.11.2011 at about 7:00 PM she was standing behind a tree with accused and was talking intimately with him when Gautm had seen her on which she got scared and showed her apprehensions after which the accused assured her not to worry and he would ensure that the deceased will not be able to speak to anybody. According to her on the next day she came to know that Gautam had been murdered. The relevant portion of the testimony of Sonia (PW5) is as under:

".......... In the month of November 2011, I was studying in 9th class at Sarvodaya Kanya Vidyalaya, Nithari, Delhi. Gautam was my neighbour and was my good friend. He was also studying in the same school in the second shift which was exclusively for boys in class 12th. About one month prior to the incident, accused Sonu who is present in the Court today started coming in my Gali and started talking with me due to which we became friends. Sonu and myself started talking with him and we became friends in very good terms.

On 5.11.2011, at about 7 p.m, I was standing behind a tree with accused Sonu and were talking intimately when deceased Gautam saw us in that position on which I got scared and showed my apprehension to St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 63 Sonu that the deceased may not disclose the said state of affairs to my family members on which Sonu assured me not to worry and he would not make the deceased able to speak to anyone. Next day, I came to know that Gautam had been murdered. Accused Sonu was aware that I used to talk to Gautam also in friendly terms. Police recorded my statement...."

(70) Sonia has been cross­examined at length but she has stood by her version and confirmed what she had earlier told the Investigating Officer and what she had deposed in her examination in chief. (71) At the very Outset I may observe that Sonia is a young girl who at the time of the incident was studying in class Nine in the same school as that of the deceased Gautam who was also her neighbour. She was known to the deceased in that capacity and hence when the deceased saw her in an intimate position with the accused Sonu, her embarrassment and apprehensions were natural and probable considering the social strata to which they belonged and local perception. Hence, feeling apprehensive when she expressed her fears to the accused Sonu @ Gagan Singh, he assured her that deceased would not be in a position to do, what she was apprehending. There is no reason to disbelieve her testimony on that aspect. No girl worth the name would put her as well as the reputation of her family at stake only to falsely implicate the accused. The accused Sonu was neither a friend nor an enemy of deceased Gautam and hence there was no reason why he would harm him. It is this reason / motive for the offence St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 64 which is explained by Sonia which appears probable and credible. (72) This being the background, I hereby hold that the prosecution has been able to prove the motive of the crime i.e. to silence Gautam to ensure that he should not disclose to anybody his affair with Sonia. Ocular Evidence / Last Seen:

(73) Ocular evidence/ eye witness count is the best evidence in any case. Unfortunately in the present case there is no eye witness and the entire case of the prosecution rests upon the testimonies of the father of the deceased namely Subh Narayan Prasad (PW3) and his friend Pintoo (PW13) who were the last persons to see him alive on the fateful day. The case of the prosecution is that the deceased Gautam a young boy of 18 years and was a student of 12th class had seen his neighbour Sonia (PW5) a young girl studying in class 9th behind a tree with the accused Sonu @ Gagan Singh in a compromising / intimate position. On seeing Gautam, Sonia got scared and expressed her apprehensions to Sonu that Gautam may disclose about her affairs to her family members. On this accused Sonu @ Gagan Singh assured Sonia that he would ensure that the deceased is not able to speak anyone. The deceased Gautam had gone out with his friend Pintoo (PW13) to have soup at around 8:00­8:15 PM and after having the soup and smoking a cigarette both of them went back to their houses. Thereafter the accused Sonu @ Gagan Singh took the victim Gautam to DDA Park where he committed his murder by strangulating him with his (deceased) own belt St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 65 and threw his body in thorny bushes in which process the thorns of the bushes also got entangled in his (deceased) hairs. Thereafter the accused Sonu went to the Barber namely Ali (PW6) at about 9:00­9:15 PM for getting himself bare headed which he did in order to destroy all evidence.

When Ali (PW6) asked Sonu about the thorns in his head the accused rudely stated to him, that it is none of his business. After getting himself bare headed the accused Sonu was unable to pay the charges of Rs. 20/­ since he was only carrying Rs.10/­ with him. When Ali insisted the accused Sonu told him that he would pay the charges by selling his mobile phone pursuant to which the accused Sonu went to the neighbouring shop of Shashi Kant (PW7) who is into sale and repair of mobile phones and sold the mobile phone make G­Five of black colour belonging to the deceased Gautam for a sum of Rs.300/­ out of which he paid Rs.10/­ to Ali. Meanwhile the father of the deceased namely Shubh Narayan Prashad got disturbed since Sonu had not returned back home and started searching for him in the area. Thereafter Shubh Narayan Prashad went to the house of Pintoo at around 9:00­9:15 PM but Pintoo told Shubh Narayan Prashad that Gautam had not come to his house. Shubh Narayan Prashad searched for his son in the entire area till about 2:00­2:30 AM but since it was Winter Season he stopped his search and in the morning at about 7:00 AM one Rahul a friend of his son came to him and informed that a dead body resembling with Gautam was lying in the DDA Ground on which Shubh Narayan Prashad immediately rushed towards the fields and found the dead St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 66 body of his son Gautam with his belt tied around his neck lying there. He immediately lifted the dead body of his son on his shoulder and took it to his house but left the belt as the spot and thereafter made a PCR call to the police.

(74) Coming first to the testimony of Shubh Narayan Prashad (PW3) the father of the deceased, I may observe that he is one who had last seen his son Gautam alive at about 8:00 PM when Gautam left the house alone after receiving a telephone call and thereafter did not return. The relevant portion of his testimony is as under:

"..... I am doing a private job. I have 3 daughters and had two sons out of which my son Gautam has been murdered who was 18 years of age and running into 19 years. He was a student of 12th class. On 05th day of 11 month of the year 2011, after about 8:00 pm, my son told me that he would be coming within few minutes as he had received some phone call on his mobile phone from his friend and thereafter my son never returned back. I searched of my son during the night at the houses of his friends and in every gali in our locality till 2:00­2:30 am. It was winter season so I alongwith my family remained in the house thereafter, in the early morning, at about 7:00 am, I was informed by one Rahul, our neighbour who was friend of my son Gautam, that one dead body who was resembling Gautam was lying in the fields. I immediately rushed towards the said fields and found that my son Gautam was lying dead and his belt was tied around his neck. I opened the belt and left the same there in the fields and took the dead body of my son on my shoulder to my St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 67 house. Thereafter, I called the police by dialing No.100. Police reached at my house and recorded my statement which is Ex.PW1/B which bears my signatures at point A. Thereafter, police took me to the place where the dead body of my son was found. I pointed out the place from where the dead body was found and lifted by me. IO prepared the site plan Ex.PW3/A. The belt of my son which was found lying there only was sealed by the IO and taken into possession vide memo Ex.PW3/B. The Crime Branch Team also reached at the spot. The seen of occurrence was inspected and photographed. Thereafter, the police alongwith Crime Team came at my residence and the photograph of the dead body of my son was taken. Thereafter, the dead body was shifted to the mortuary of Sanjay Gandhi Hospital where the police prepared certain documents. My statement was recorded regarding the identification of dead body of my son which is Ex.PW3/C which bears my signatures at point A and after postmortem, I alongwith my brother Arun Kumar received the dead body of my son vide executing a receipt (the receipt is at present not on the judicial record nor on police file).

On 09.11.11, the IO and the SHO with team reached at my residence and asked me about the house of Sonia. I pointed out the house of Sonia which was in front of my house. It was revealed that Sonia and accused Sonu @ Gagan Singh present in the court today were having love affair and my son Gautam saw them in a compromising position on 05.11.11 at about 7:00/7:15 pm behind the house near the bushes and in order to finish the evidence, accused Sonu killed my son so that the story of their love affair should not be spread in the locality. The said Sonia was interrogated by the IO in the St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 68 presence of one Lady Police who had disclosed the above said facts in my presence. Thereafter, we all went to the house of accused Sonu @ Gagan Singh and on the pointing out by Sonia, accused Sonu @ Gagan Singh present in the court today was arrested vide arrest memo Ex.PW3/D which bears my signatures at point A and his personal search was also conducted. The accused made his disclosure statement which is Ex.PW3/E which bears my signatures at point 'A'. Sonia was discharged by the police and the lady police official went to the police station and thereafter we along with accused went to the place of incident where the accused point out the same in my presence. He disclosed that he had gone to a barber shop to get his hair cut as some of his hair got entangled in the bushes while committing the offence of murder and in order to finish the evidence to that effect, he got his hair cut completely.

The police also interrogated the said barber whose name was Ali in my presence and who was running his shop near the police station Aman Vihar. He told the police that on the night of 05.11.2011, the accused had come to his shop in the night hours for getting his hair cut and there were thorns of the bushes found in his hairs at the time of cutting.

It was further told by the said barber that accused was having only ten rupees with him and he had sold the mobile phone of my son which was taken by him after the incident. The barber also went along with the accused to a mobile shop where he sold the same for a sum of Rs.300/­ and thereafter the accused gave Rs.20/­ as the charges of cutting to the barber. The accused disclosed that he had thrown the SIM of mobile phone of my son in a pond in the area which was meant for Chhathpuja. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 69 Thereafter, the accused led us to the mobile shop belonging to one Shashi Kant and the accused pointed out the said shop. IO interrogated Shashi Kant who produced one mobile phone and it was made of China and was of black colour. I identified the said mobile phone as that of my son's and the said mobile was taken into possession by the IO vide memo Ex.PW3/F....."

(75) Shubh Narayan Prashad has been subjected to a sustained cross­ examination wherein he has denied that his son was having an affair with Sonia or that since Sonia was into an affair with Sonu, she ditched his son Gautam which he could not tolerate and hence committed suicide. He has admitted that on the night of 5.11.2011 he did not call the police at 100 number regarding the missing of his son since he was making efforts to trace his son and it was in the morning that the body of his son was discovered. He has also explained that on seeing the body of his son he had become extremely disturbed and hence he did not make any PCR call and it was his neigbour namely Sharmaji who had called the police after 15­20 minutes of the information regarding his son being received by him. He has further explained that no photograph of the dead body of his son was taken by him or by his neighbour at the time when the belt was tied around his neck and even the police could not take the photographs of the dead body with the belt. Here, I may observe that the belt in question had been recovered by the police on the pointing out of Shubh Narayan where it was lying in the bushes. Despite the efforts of the Ld. Defence Counsel to give St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 70 the colour to the death of the deceased as Suicide he had miserably failed to do so since the nature of injuries mentioned in the Postmortem Report Ex.PW17/A reflect that the strangulation had been caused by the belt in question and death to be homicidal in nature. Further, the photographs of the spot of incident i.e. DDA ground show the presence of thorny bushes and there is no tree around the place or any other material with sufficient height to have enabled the deceased to hang himself. It has been observed that the belt in question is not so long that it could have been used as a ligature material for purpose of hanging but it had sufficient length so as to enable a second party to use it a material for strangulation thereby establishing that the strangulation of the deceased was homicidal and not suicidal.

(76) Coming next to the testimony of Pintoo (PW13) who was actually the last person present with the deceased who saw him alive. He has corroborated the testimony of Shubh Nandan Prashad (PW3) to the extent that on 15.11.2011 he gave a call from his mobile No. 9599592370 to his friend Gautam on his mobile No. 9599592118 and invited him to join him (Pintoo) for taking soup on which Gautam came to him and they both had taken soup from a small shop in the gali after which they smoked cigarette and went to their respective houses. He has further corroborated the testimony of Shubh Narayan that at about 9:00­9:15 PM father of Gautam had come to his house to inquire about Gautam on which he told him that he had not come to his house. Pintoo has also stated that the father St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 71 of Gautam had again come to his house at about 10:00­10:30 PM and he again showed his ignorance regarding the whereabouts of Gautam. This witness Pintoo (PW13) has not been cross­examined at all and his entire testimony has gone uncontroverted. I may observe that the electronic record i.e. Call Detail Record of the mobile No. 9599592118 which is Ex.PW20/C duly proved by Subodh Narayan Jha (PW20) confirms that a call had been made to the deceased from the mobile No. 9599592370 at about 20:09:24 hours (i.e. 8:09 PM) which lasted for about 18 seconds. The testimony of Pintoo (PW13) also finds due corroboration from the testimony of Govind Prashad (PW11) who is doing the business of selling the chicken soup on his handcart. Govind Prashad has confirmed that on 5.11.2011 at about 8:00 PM Pintoo and Gautam had come to his handcart and had taken soup from him and next day he came to know that Gautam had been murdered. He has stated that he was known to both these boys since they were residing in the gali behind the gali where he was residing. There is no reason to disbelieve the testimony of both these independent witnesses i.e. Pintoo and Govind Prashad who have independently confirmed that Gautam had come to the handcart of Govind Prashad and taken the soup and thereafter went back to their houses. I may observe that the incident of the deceased Gautam having seen Sonia with the accused in compromising position took place at about 7:00 PM and also confirmed by Sonia and it was around 8:00 PM that Gautam had gone out with his friend Pintoo (as confirmed by his father Shubh Narayan Prashad and Pintoo) and St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 72 had consumed soup from the rehri / hand cart of Govind Prashad after the incident had taken place and it was at about 9:00­9:15 PM that the accused Sonu went to the barber Ali and got himself bare headed (as confirmed by Ali) and when he could not pay up the charges to the Barber he sold the mobile phone make G­Five of black colour (Ex.P­2) belonging to the deceased, to Shashi Kant (PW7) for a sum of Rs.300/­ and paid the charges to barber Ali (as confirmed by Shashi Kant).

(77) This being the background, the sequence of events which now unfold on the basis of the evidence as aforesaid are enumerated as under:

➢ That the deceased Gautam had seen the accused Sonu @ Gagan Singh and Sonia (PW5) in a compromising position behind a tree at about 7:00 PM (as proved by Sonia­PW5).

➢ That at about 8:09 PM Gautam received a called from his friend Pintoo­PW13 (as established from the Call Details Record) after which both Pintoo and Gautam went to have soup from the handcart of Govind Prsahd (as proved by Govind Prashad­PW11 and Pintoo­ PW13).

➢ That after having soup both the deceased Gautam and his friend Pintoo went towards their respective houses.

➢ That Pintoo (PW13) returned back to his home but Gautam did not return.

➢ That at about 9:00­9:15 PM the accused Sonu @ Gagan Singh went to the shop of Barber Ali (PW6) for getting himself bareheaded since St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 73 some thorns had got entangled in the hairs of the accused Sonu (established from the testimony of Ali­PW6).

➢ That after bare­heading the accused Sonu @ Gagan Singh, Ali (PW6) asked him to pay up Rs.20/­ but since the accused was having only Rs.10/­, thereafter he along with Ali went to the shop of Shashi Kant at about 9:15 PM and sold the mobile phone belonging to the deceased Gautam (established from the testimonies of Ali­PW6 and Shashi Kant­PW7).

(78) It is writ large from the above that the deceased Gautam had been killed between 8:30 PM to 9:00 PM. The accused Sonu @ Gagan Singh on his part has not explained how the mobile phone of the deceased came into his possession which mobile he had sold to Shashi Kant soon after the incident only because he had to make the payment of Rs.10/­ to the Barber Ali (PW6). When this incriminating material was put to the accused in his statement under Section 313 Cr.P.C. he simply and vaguely denied the same without offering any explanation. The accused is the best person who could have offered an explanation with regard to the possession of mobile phone of the deceased Gautam with him without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 74 impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The accused Sonu @ Gagan Singh has failed to explain as to who the mobile phone of the deceased came into his possession and hence all these facts point towards the guilt of the accused Sonu @ Gagan Singh.

Subsequent Conduct of the Accused:

(79) The case of the prosecution is that after committing the murder of Gautam by strangulating him with his own belt and throwing his body in the bushes in the DDA Park the accused Sonu @ Gagan immediately went to barber 'Ali' since while throwing the dead body of Gautam in the bushes some thorns had got entangled in his hair and hence he got himself bare headed. On this Ali bare headed Sonu and questioned Sonu of the same on which the accused asked him to mind his own business. After getting himself bare headed the accused Sonu was not having money to pay to Ali and was only having Rs.10/­ and when the barber Ali insisted the accused told him that he would pay his charges after selling his mobile phone (which was actually the mobile phone of the deceased in possession of the accused). Pursuant to the same the accused Sonu went to the mobile shop of Shashi Kant which is situated near the shop of Ali where Ali also accompanied him and sold the mobile phone to Shashi Kant for a sum of St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 75 Rs.300/­ out of which the accused Sonu gave Rs.10/­ to Ali. In this regard the prosecution has places its reliance on the testimonies of Ali (PW6) and Shashi Kant (PW7).

(80) Coming first to the testimony of Ali (PW6) - a barber by profession, who had bareheaded the accused Sonu @ Gagan Singh on the fateful night around 9:00­9:15 PM and has no history of animosity or dispute with him. The relevant portion of the same is as under:

"........ I am running a Barber shop in Ramesh Enclave. On 5.11.2011, one boy came for hair cut at about 9 or 9.15 p.m and asked for bare heading him and I identify the said boy who is present in the court today (the witness pointed out towards accused Sonu). The accused was having some small thorns of bushes in his hairs and I asked as to how the said thorns are there in his hairs on which he asked me to mind my business. I bare headed the accused by cleaning all the hairs from his head and asked for Rs.20/ as charges but the accused gave me only Rs.10/. I asked the accused that I am not working on credit so as to leave my Rs.10/­ as charges with him on which the accused asked me to accompany him to a mobile shop so that he may sell his mobile phone and would give my remaining amount of Rs.10/. I went along with the accused to the mobile shop situated at 100 paces from my shop where the accused took Rs. 10/­ from the mobile shop owner and gave the same to me and I saw that accused was having a mobile phone handset of Black and White colour. I had come back after taking Rs.10/­ and the mobile shop owner might have checked the mobile after fixing the SIM card in the same. I do not know as to for what amount the said mobile St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 76 phone was sold by the accused to the said mobile shop owner as I had come back after taking Rs.10/.

On 9.11.2011, two police officials along with the accused came to my shop at about 11 a.m or 12 noon and asked me about the said hair cut of the accused to which I replied in affirmative. The police also asked me for the hairs of the accused to be given to them to which I showed my inability as I used to throw the cut hairs in the MCD vehicle used for taking the garbage.

(81) Ali (PW6) has been subjected to sustained cross­examination wherein he has denied that he is a planted witness. There is no material contradictions in his cross­examination nor evidence of animosity with the accused Sonu @ Gagan Singh and hence there is no reason to disbelieve him. Ld. Defence Counsel has vehemently argued that the hairs which had been cut by Ali containing the thorns have not been produced in the Court.

In this regard a valid explanation is forthcoming by Ali who has stated that police had asked him about he cut hairs of the accused on which he had informed them that he normally throws (dispose off) the cut hairs in the collection van of MCD which comes to their area and since two days had elapsed he showed his inability in providing the cut hairs to the police. This explanation is probable and believable and hence non production of these hair will not be fatal to the prosecution case.

(82) Coming now to the testimony of Shashi Kant (PW7) who is having a mobile phone shop, the relevant portion of his testimony is as St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 77 under:

"...... I am running a shop of photostat, mobile shop and recharge coupons for the mobile phones in front of PS Aman Vihar. On 5.11.2011 at about 8.45/9.00/9.15 p.m., accused Sonu present in the court today came along with a boy to my shop and accused Sonu told me that he wanted to sell his mobile phone of the brand G5 of black colour. I checked the mobile phone of the accused Sonu after fixing a new SIM from my shop on which I found that it was in a working condition. I offered accused Sonu Rs.300/­ for the said mobile phone. I paid him Rs.300/­ for purchasing of said mobile phone, out of which accused Sonu gave Rs.10/­ to the said boy accompanying him and both the accused Sonu as well as the said boy thereafter left my shop. Accused Sonu used to purchase recharge coupons earlier also from my shop as he was residing in Ramesh Nagar itself and that is why I knew him.

On 9.11.2011, two police officials came to my shop along with the accused at about 11 AM and inquired from me as to whether accused Sonu had sold any mobile phone to me on which I produced the said mobile phone before the police which I had purchased from the accused Sonu. Police took the said phone and my signatures were obtained on one paper and the same is already Ex.PW3/F which bears my signature at point B. On 10.11.2011 at about 6 p.m., police again came to my shop and inquired about the SIM used by me for checking the mobile phone of the accused Sonu to which I replied that I had sold the said SIM to one Sagar Dutta on

6.11.2011 and I took the police to the house of said Sagar Dutta at Ramesh Enclave where Sagar Dutta was found present who handed over the SIM along with its St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 78 container to the police and I informed the police that said Sagar Dutta purchased the said SIM at the I/D proof of his mother. At that time also police got my signatures on one paper which is Ex.PW7/A which bears my signature at point A. On that day, I came to know that the said mobile phone sold to me was stolen one belonging to a person who had been murdered...."

(83) Shashi Kant has also been cross­examined at length by the Ld. Defence Counsel wherein he has stood by her version. He has proved that the accused Sonu @ Gagan Singh was known to him previously since he used to purchase recharge coupons from his shop and was residing in Ramesh Nagar itself. Shashi Kant has proved that he had purchased the mobile phone from Sonu @ Gagan Singh on 5.11.2011 and on 9.11.2011 the said phone was seized by the police from him and on 10.11.2011 police again came to him and inquired about the SIM used by him for checking the mobile phone of the accused on which he told the police that he had sold the said SIM to one of his customer namely Sagar Dutta on 6.11.2011. Thereafter he took the police to the house of Sagar Dutta who handed over the SIM card to the police. Shashi Kant has identified the SIM which he had inserted in the mobile set make G­Five belonging to the deceased. Further, Sagar Dutta (PW8) has corroborated and confirmed the testimony of Shashi Kant to the extent that he had purchased a SIM from Shashi Kant on 6.11.2011 on the ID proof of his mother namely Smt. Geeta Dutta. According to him, he had given his mobile handset to Shashi Kant for repair St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 79 and obtained one mobile handset for time being and used the newly purchased SIM bearing No. 8527532252 on the said mobile phone. He has proved that the said SIM had been seized by the police vide Ex.PW7/A and also identified the SIM which is Ex.P­3.

(84) Though the accused did not dispute the aspect of the user of SIM No. 8527532252, yet there being a discrepancy in the Customer Application Form from where the ID Proof has been found to be of one Mool Chand, this Court of its own examined Mool Chand Shamra, Amit Sharma and Vinod as Court Witnesses and it has been confirmed that the salesman of Airtel namely Vinod had committed a mix­up of the ID details and mistakenly the ID proof of Mool Chand Sharma was attached with the Customer Application Form relating to sale of SIM No. 8527532252 to Sagar Dutta.

(85) From a combined reading of the testimonies of Ali (PW6), Shashi Kant (PW7) and Sagar Dutta (PW8) the following aspects stand established:

➢ That at 5.11.2011 at about 9:00­9:15 PM the accused Sonu @ Gagan Singh had gone to the shop of barber Ali for getting him bareheaded. ➢ That accused Sonu was having small thorns of bushes in his hairs and when Ali inquired about the thorns, Sonu asked him to mind his own business.

➢ That Ali bare headed Sonu and asked for Rs.20/­ as charges but the accused gave him only Rs.10/­ and when Ali insisted for remaining St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 80 Rs.10/­, the accused Sonu asked Ali to accompany to the mobile shop and he would sell his mobile phone to pay him the remaining amount. ➢ That thereafter both Ali and Sonu went to the shop of Shashi Kant where the accused sold a mobile set make G­Five of black colour to Shashi Kant.

➢ That in order to check the mobile phone Shashi Kant inserted a new SIM bearing No. 8527532252 in the said mobile set and then made a call on his own mobile phone (9599345134) and after it was found working he purchased the same for a sum of Rs.300/­. ➢ That out of the said Rs.300/­ the accused Sonu gave remaining Rs.

10/­ to Ali.

➢ That on 6.11.2011 Sagar Dutta purchased the said SIM bearing No. 8527532252 from Shashi Kant on the ID proof of his mother Smt. Gita Dutta.

(86) As per the provisions of Section 8 of the Indian Evidence Act, 1872 Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (87) The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 81 relevant fact, and whether it was previous or subsequent thereto. (88) It is hardly said that there is any action without a motive.

Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, good­faith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.

(89) Applying these settled principles of law to the facts of the present case it is evident that this conduct of the accused Sonu @ Gagan in immediately going to the shop of Ali, getting himself bare headed and thereafter the fact that the mobile of the deceased Gautam make G­five was in his possession as proved by Ali and Shashi Kant which mobile he had sold to Shashi Kant, which is again a strong pointer towards the guilt of the accused Sonu @ Gagan.

Electronic Evidence:

(90) The case of the prosecution is that the deceased Gautam was St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 82 using the mobile phone bearing No. 9599592118 which fact has been proved by Shubh Nandan Prashad (PW3). After having committed the murder of Gautam the accused Sonu removed the mobile phone of deceased from his pants which mobile phone was of black & white colour make G­ Five. He removed the SIM card of the phone and threw it in a pond after which the accused sold the mobile set (belonging to the deceased) to Shashi Kant who in order to check the same inserted a new SIM bearing No. 8527532252 in the said mobile set and thereafter made a call from his mobile No. 9599345134 to the mobile set of the deceased make G­Five having the SIM bearing No. 8527532252 after finding it in working order, purchased the said mobile set for a sum of Rs.300/­. In this regard the prosecution has examined the Nodal Officers i.e. Sh. Vishal Gaurav (PW19) Nodal Officer from Bharti Airtel Ltd. who has proved that the Mobile No. 8527532252 issued in the name of Mool Chand Sharma S/o Rewati Lal Sharma R/o H­1/16, Block­D, Aman Vihar, Kirari Suleman Nagar, Delhi as per the customer application form Ex.PW19/A and also the Call Detail Record of the said mobile from 04.11.11 to 10.11.11 which is Ex.PW19/C. (91) Further, Subodh Narayan Jha (PW20) Nodal Officer, Etisalat DB Telecom Pvt. Ltd. has proved the record pertaining two mobile numbers 9599592118 and 9599345134. He has proved that the mobile No. 9599592118 has been registered in the name of Smt. Ramwati W/o Sh.

Shyam Kumar R/o. H­2/359, T­Huts, Jahangir Puri, Delhi and mobile No. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 83 9599345134 has been issued to Sh. Shashi Kant Singh S/o Sh. Budhan Singh R/o. S­34, S Block, Prem Nagar­II, Kirari Suleman Nagar, Delhi as vide customer application forms which are Ex.PW20/A and Ex.PW20/B. He has further proved the call details record of the said mobile numbers from 04.11.2011 to 10.11.2011 which are Ex.PW20/C and Ex.PW20/D respectively.

(92) Here, I may mention that as per the Customer Application Form Ex.PW19/A the mobile phone bearing No. 8527532252 has been issued in the name of Mool Chand Sharma S/o Rewati Lal Sharma R/o H­1/16, Block­D, Aman Vihar, Kirari Suleman Nagar, Delhi whereas according to Shashi Kant (PW7) he had sold the said SIM to Sagar Dutta who obtained the same on the ID Proof of his mother Smt. Geeta Dutta. Though the accused Sonu @ Gagan Singh has neither controverted this aspect nor raised any objection yet in the interest of Justice to rule out any other possibility, this Court has sought an explanation with regard to the above discrepancy and examined Mool Chand Sharma as CW1, the shopkeeper Amit Gupta as CW2 and the salesman Vinod as CW3.

(93) Mool Chand Sharma (CW1) has proved that he had never purchased any SIM bearing No. 8527532252 and he got converted his reliance No. 8010336877 from Reliance Company to Airtel Company through a Shop Keeper namely Amit Gupta (CW2) R/o F­91, Aman Vihar, Delhi for which he handed over his ID proof and one photograph to him. Amit Gupta (CW2) has confirmed this fact that his friend Mool Chand St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 84 Sharma came at his shop to transfer his mobile number 8010336877 from Reliance Company to Airtel Company via MNP (Mobile Number Portability) and handed over his ID proof and the photographs to him for the above said change of his mobile number from Reliance to Airtel after which he (Amit Gupta) handed over the documents to Vinod for the above said transfer but Mool Chand never applied for the mobile number 8527532252. Vinod (CW3) a Salesman for Bharti Airtel Ltd. has confirmed that about one and a half to two years back he collected the ID proofs and the photographs of Sagar Dutta S/o Rajender Dutta for the Airtel number from the shop of Shashikant and also collected the ID proof and photograph of Mool Chand Sharma S/o Revti Lal Sharma from the shop of Amit Gupta for transfer of Reliance number to the Airtel number through MNP and handed over these documents to the distributor. According to him, the Customer Application form Ex.PW19/A bearing the photograph of Mool Chand bear his mobile number 9999889839 and Ex.PW19/B is the ID proof of Mool Chand but the SIM of mobile number 8527532252 was never handed over to Mool Chand Sharma. He has clarified that it was by mistake that the documents of Sagar Dutta and Mool Chand Sharma were exchanged and due to mistake that photograph of Mool Chand and particulars of Mool Chand were filled in the customer application form of SIM of mobile number 8527532252. According to him, the SIM of mobile number 8527532252 was handed over to Sagar Dutta and St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 85 the mobile number provided by Mool Chand Sharma of Reliance was converted to Airtel through MNP in favour of Mool Chand Sharma. This aspect has not been duly controverted by the accused, rather it was the Court who sought an explanation on this discrepancy and examined court witnesses).

(94) It is writ large from the testimonies of the above Court Witnesses that it was only on account of the mixing up of ID proof that there is a discrepancy in the Customer Application Form of mobile No. 8527532252. However, in view of the explanation given by Vinod (CW3) it stands established that the mobile no. 8527532252 has been issued to Sagar Dutta on 30.10.2011. Further, from the analysis of the Call Detail Record (electronic evidence) and the testimonies of the various prosecution witnesses the following facts stand established:

➢ That the deceased Gautam was using the mobile set make G­Five bearing IMEI No. 353298048909010 (as shown in the Call Details Record) with SIM No. 9599592118 which aspect has been proved by the father of the deceased namely Shubh Narayan Prashad. ➢ That as per the Call Details Record of the mobile No. 9599592118 which are Ex.PW20/C the deceased Gautam had received last call from the mobile phone of his friend Pintoo (PW13) on 11.5.2011 at 20:09:24 hours which call lasted for 18 seconds, lending credence to the testimony of Pintoo (PW13) that he had made a call to Gautam St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 86 asking him to have soup with him.

➢ That mobile phone bearing No. 9599345134 had been registered in the name of Shashi Kant (PW7).

➢ That the Call Details Record of mobile No. 9599345134 which are Ex.PW20/D show that on 5.11.2011 at 21:21:17 hours (9:21 PM) Shashi Kant inserted his SIM No. 9599345134 in the mobile set of the deceased having IMEI No. 353298048909010 and made a call on SIM No. 8527532252 thereby lending credence to the testimony of Shashi Kant.

➢ That the SIM No. 8527532252 was thereafter sold by Shashi Kant (PW7) to Sagar Dutta used the same till 7.11.2011. (95) This being the background, I hereby hold that the electronic evidence on record is compatible to the prosecution case. It confirms the oral testimony of Shashi Kant and Ali regarding sale of mobile set bearing IMEI No. 353298048909010 belonging to the deceased Gautam by accused Sonu within almost an hour of the incident in order to pay­up for the charges of the Barber who had bareheaded him as thorn had stuck to his hair which bushes were present at the place of the incident of murder and lends credence to the testimony of these prosecution witnesses.

Medical Evidence & Forensic Evidence:

(96) PW17 Dr. Manoj Dhingra has proved the postmortem report of the deceased which is Ex.PW17/A according to which on external St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 87 examination following injuries were found on the body of the deceased:

1. Ligature mark 31 cm long, round horizontal present all along neck.

Ligature mark was also placed 6 cm below right mastoid process, 7 cm below left mastoid process and 6cm below tip of chin, 5 cm above sternal notch and 0.3 cm below posterior hairline. Its width was approx. 5 cm.

2. Abrasion 1 x 0.5 cm soft red over front of nose.

3. Liner abrasion 0.5 cm below left eye.

4. Liner abrasion 0.5 cm below right eye, two in number. (97) The witness has proved having opined that the death was due to asphyxia consequent to strangulation. He has also proved having subsequently opined that the belt Ex.P­1 can be used in causing the strangulation which opinion is Ex.PW17/C and has also identified the said belt in the Court. Dr. Manoj Dhingra has not been cross­examined at all and his testimony in this regard has gone uncontroverted. (98) Further, the viscera examination report which is Ex.PX has not been disputed by the accused according to which report on chemical & TLC examination, metallic poisons, ethyl and methyl, cyanide phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be found in the exhibits sent to the FSL.

(99) The above evidence confirms the cause of death as asphyxia consequent to strangulation which is compatible to the prosecution case. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 88 The injuries present on the body of the deceased i.e. abrasion over front of noise and liner abrasions below both the eyes confirms that before his death the deceased must have offered stiff resistance on account of which he received the said injuries.

Death was caused by strangulation with the belt of the deceased:

(100) The case of the prosecution is that the pursuant to the PCR call when the local police went to the house of the deceased they found the dead body of the deceased outside the house on a cot and they came to know that the dead body had been lifted by the father of the deceased namely Shubh Narayan Prashad from the DDA ground. Thereafter Shubh Narayan Prashad led the police to DDA ground where he pointed out the spot and also pointed out a belt of the deceased lying in the bushes and informed the police that he had himself removed the said belt from the neck of his deceased son and left it there. The said belt Ex.P­1 was thereafter taken into possession by the police. This belt has been identified by Shubh Narayan Prashad in the Court as that of his son which he was wearing at the time of the incident and was found tied around his neck. The medical evidence on record i.e. the testimony of Dr. Manoj Dhingra (PW17) confirms that the strangulation could have been caused by this belt. (101) It is writ large from the testimony of Sonia (PW5) that she had been seen by the deceased at around 7:00 PM after which she shared expressed her apprehensions with the accused Sonu who told her that he St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 89 will ensure that Gautam would not be in a position to inform anybody thereafter. This establishes that the accused Sonu @ Gagan Singh had decided that he would silence Gautam and hence finding an opportunity after about 8:09 PM when deceased had come to have soup with Pintoo and was returning home thereafter, he strangulated the deceased with his own belt on finding an opportunity and threw his body in the bushes of DDA ground. The photographs placed on record reflecting the place of incident i.e. DDA park / ground which photographs are Ex.PW25/B1 to Ex.PW25/B13 show large number of thorny shrubs growing in large numbers with no tree in the vicinity. Rahul (PW12) in his testimony has deposed that he had seen the body of Gautam while he was coming back after easing from DDA Park of Pratap Nagar on which he had informed his father and family. The spot of the incident i.e. where the dead body was found stands proved and the belt of the deceased was also recovered from there. Therefore, it is writ large that this ground i.e. DDA Park where the body of the deceased was found lying, is used by the residents of the area for attending to the call of nature and easing themselves which explains, how Gautam reached the ground. The medical evidence on record indicates and proves the use of force upon the deceased before he was strangulated.

The medical evidence also conclusively establishes death by strangulation by belt i.e. homicidal and rules out suicide (by hanging) as argued by the Ld. Defence Counsel. The photographs on record establish that there was no tree or any other material which could have been used by the deceased as St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 90 a support material for a suicidal hanging (as claimed by the accused). Also, there was signs of violence on the body of the deceased indicating that he had perhaps offered some resistance and there was some scuffle prior to his strangulation. This being the background, I hereby hold that the death of the deceased had been caused by a second party (Homicide) by strangulating him with his own belt.

How Gautam reached the DDA Park:

(102) The aspect as to how Gautam reached DDA ground was not within the knowledge of the police and was disclosed by the accused in his disclosure statement. In this regard the prosecution has placed its reliance on the Disclosure Statement of the accused which is Ex.PW13/E. The Ld. Defence Counsel has raised an objection stating that the disclosure statement made by the accused is admissible in evidence since it is hit by the provisions of Section 25 of Evidence Act. (103) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 91 discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.

(104) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:

1. Anything, state of things, or relation of things, or capable of being perceived by the senses,

2. Any mental condition of which any person is conscious.

(105) It further provides five illustrations as to what would constitute a fact which are as under:

1. That there are certain objects arranged in a certain order in a certain place, is a fact

2. That a man heard or saw something, is a fact.

3. That a man said certain words, is a fact.

4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

5. That a man has a certain reputation, is a fact.

(106) A co­joint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 92 accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (107) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King­Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under:­ "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 93 discovered, may be proved......"

".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.

27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."

"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.

This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 94 relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"

(108) After considering the settled principles the Hon'ble Apex Court observed as under:

"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 95 related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.

(109) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 96 applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:

"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.

The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.

(110) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned.

However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 97 particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"

(111) This aspect as to what portion of the disclosure statement of the accused can be read into evidence, has been recently discussed in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 wherein it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 98 as relates distinctly to the fact thereby discovered is admissible. (112) Applying these settled principles of law to the facts of the present case, it is evident that the accused Sonu @ Gagan Singh in his disclosure statement Ex.PW13/E has stated that he found the deceased going from his house towards the DDA Ground on which he followed the deceased and met him and threatened him not to spread a word to the other persons in the area about his affair with Sonia to which Gautam did not agree on which he strangulated him by exerting pressure over his neck by his arm and did not leave Gautam till his body had become lifeless after which he removed the belt of Gautam and strangulated him with the same so that he would not be in a position to survive.

(113) This fact as to how Gautam reached to the ground and as to how Gautam was killed was not within the knowledge of the police which fact has been explained by the accused in his disclosure statement. It is evident from the testimony of Rahul (PW12) that the DDA ground is used by the residents of the area for easing themselves and this explains the presence of Gautam there. After having the soup with his friend Pintoo, Gautam went to the DDA ground to attend the call of the nature (as claimed by the accused in his disclosure) where the accused met him and threatened him not to disclose about his affair to anybody and on his refusal the accused killed him. Here, I may observe that the testimony of Sonia becomes relevant. She has very specifically and categorically deposed that after she expressed her apprehensions, the accused assured that he would St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 99 ensure that Gautam would not be in a position to tell anybody. It is this which reflect the intent of the accused Sonu @ Gagan. Being a married man with a child the accused apprehended that in case if his relationship with Sonia a young girl in class 9th, is exposed it would create a havoc in the personal lives of both and hence had decided to ensure the silence of Gautam. He thereafter kept a watch on the way leading towards the house of the deceased and when the deceased went towards the open DDA ground to attend the call of nature the accused Sonu first confronted the deceased and asked him not to disclose his affair with Sonia to anybody and when the deceased Gautam did not agree, he (accused) silenced him (deceased) by strangulating him by his hand and thereafter by his (deceased) own belt. (114) In so far as the arrest of the accused Sonu is concerned, the same has not been rebutted. It was on the basis of secret information that the police came to know that the accused was behind the murder of Gautam on account of his relationship with Sonia and hence at the instance of Sonia @ Pinki the accused Sonu was apprehended from his house and this aspect has gone uncontroverted.

FINAL CONCLUSIONS:

(115) In the case of Sharad Birdhichand Sarda ­vs­ State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 100

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 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.

(116) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the evidence on record the following facts stand established:

➢ That the deceased Gautam aged about 18 years was a student of 12th class at the time of the incident.

➢ That the deceased Gautam was using a mobile phone make G­Five having IMEI No. 353298048909010 with SIM No. 9599592118. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 101 ➢ That on 5.11.2011 at about 7:00 PM Gautam had seen her friend Sonia a young girl residing in the same area along with the accused Sonu @ Gagan in compromising / intimate position behind a tree. ➢ That Sonia expressed her apprehensions to the accused Sonu that Gautam would disclose her affairs to everybody in the area on which the accused Sonu @ Gagan Singh assured her not to worry and he would ensure that Gautam would not be able to tell anybody. ➢ That on 5.11.2011 at about 8:00 PM Pintoo the friend of Sonu @ Gagan Singh made a call from his mobile No. 9599592370 on the mobile phone of Sonu @ Gagan Singh i.e. 9599592118 and asked him to have soup with him.

➢ That thereafter Gautam left the house and he along with Pintoo went to the rehri of Govind Prashad and after taking soup and smoking cigarettes, they went towards their respective houses. ➢ That on the way to his house, Gautam went towards the DDA ground to attend the call of nature, the accused Sonu @ Gagan Singh committed his murder by strangulating him with his own belt. ➢ That Gautam offered a stiff resistance and during the scuffle he received injuries / abrasion on his face.

➢ That while committing the murder of Gautam the thorn of the bushes got entangled in the hairs of accused Sonu @ Gagan Singh. ➢ That at about 9:00­9:15 PM the accused Sonu @ Gagan Singh had gone to the shop of barber Ali for getting bare beheaded himself. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 102 ➢ That accused Sonu was having small thorns of bushes in his hairs and when Ali inquired about the thorns, Sonu asked him to mind his own business.

➢ That thereafter Ali bare headed Sonu and asked for Rs.20/­ as charges but the accused gave him only Rs.10/­ and when Ali insisted for remaining Rs.10/­, the accused Sonu asked Ali to accompany to the mobile shop and he would sell his mobile phone. ➢ That thereafter both Ali and Sonu went to the shop of Shashi Kant where the accused sold a mobile set make G­Five of black colour to Shashi Kant which mobile actually belonging to the deceased Gautam.

➢ That in order to check the mobile phone Shashi Kant inserted a new SIM bearing No. 8527532252 in the said mobile set and then made a call on his own mobile phone (9599345134) and after it was found working he purchased the same for a sum of Rs.300/­. ➢ That out of the said Rs.300/­ the accused Sonu gave remaining Rs.

10/­ to Ali.

➢ That in the meanwhile when Gautam did not return home, his father Shubh Narayan Prashad tried to search him in the area and also went to the house of Pintoo who informed him that after having the soup they went towards their respective houses.

➢ That in the morning one Rahul the neighbour of Shubh Narayan informed him that the dead body of Gautam was lying in the DDA St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 103 fields.

➢ That Shubh Narayan immediately rushed towards the said fields and found that his son Gautam was lying dead and his belt was tied around his neck.

➢ That Shubh Narayan opened the belt and left the same there in the fields and took the dead body of his son to his house and called the police by dialing 100 number.

➢ That on the basis of statement of Shubh Narayan Prashad the present case was got registered.

➢ That the police seized the belt from the DDA ground at the instance of Shubh Narayan Prashad.

➢ That during investigations a secret information was received that the deceased Gautam and the accused Sonu used to talk to one girl namely Sonia @ Pinki and the murder of Gautam was committed on account of the said girl.

➢ That inquiries were made from Sonia @ Pinki who revealed that she and Sonu were having an affair and on 5.11.2011 Gautam had seen her along with Sonu behind a tree in compromising position on which she expressed her apprehensions to Sonu on which Sonu assured her that Gautam will not be able to speak. ➢ That at the instance of Sonia the accused Sonu @ Gagan Singh was apprehended from his house.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 104 ➢ That during interrogation the accused disclosed his involvement in the present case.

➢ That the accused disclosed that after committing the murder of Gautam he removed his mobile phone from his pants and threw the SIM card in a pond and while committing the offence some thorns got entangled in his hairs after which he went to a barber shop near Police Station where he got himself bare headed. ➢ That the accused further disclosed to the police that since he could not pay the full charges of the barber, he sold the mobile phone of Gautam to a mobile shop.

(117) The medical evidence on record establishes that the death of the deceased Gautam was caused due to asphyxia consequent to strangulation and the belt can be used in causing the strangulation. It indicates and proves the use of force upon the deceased before he was strangulated and also conclusively establishes death by strangulation by belt i.e. homicidal. Further, the electronic evidence on record is compatible to the prosecution case and lends credence to the testimony of the various prosecution witnesses.

(118) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 105

The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.

(119) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (120) In view of the above, I hereby hold that the prosecution has been able to establish and prove the intent and knowledge (as contemplated under Section 300 Indian Penal Code) of the accused Sonu @ Gagan Singh to commit the murder of Gautam for which he is hereby held guilty of the offence under Section 302 Indian Penal Code and accordingly convicted.

(121) Be listed for arguments on sentence on 17.7.2013.

Announced in the open court                                      (Dr. KAMINI LAU)
Dated: 12.7.2013                                                 ASJ­II(NW)/ ROHINI

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar                                    Page No. 106

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Session Case No. 34/2013 Unique Case ID No.: 02404R0023832012 State Vs. Sonu @ Gagan Singh S/o Sh. Guru Dayal Singh R/o D­1/20, Ramesh Enclave, Delhi (Convicted) FIR No: 341/2011 Police Station: Aman Vihar Under Section: 302 Indian Penal Code Date of conviction: 12.7.2013 Arguments concluded on: 17.7.2013 Date of Sentence: 25.7.2013 APPEARANCE:

Present: Sh. Sukhbeer Singh, Ld. Addl. Public Prosecutor for the State.

Convict Sonu @ Gagan Singh in Judicial Custody with Sh. Sunil Gautam Advocate.

ORDER ON SENTENCE:

This case relates to murder of a young boy namely Gautam aged 18 years. As per allegations who had seen her neighbour Sonia in a St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 107 compromising / intimate position with the accused Sonu @ Gagan Singh a married man residing of the same area on which she became apprehensive that their relationship shall be exposed. In order to ensure that Gautam would not be in a position to disclose their affair to anybody, the accused Sonu @ Gagan Singh on 5.11.2011 between 8:30 PM to 9:00 PM at DDA Land, near Pratap Nagar committed the murder of Gautam by strangulating him with his (deceased) own belt.

On the basis of the testimonies of the various prosecution witnesses particularly the father of the deceased namely Shubh Narayan Prashad, friend of the deceased namely Pintoo, Sonia, Ali (Barber) and the shopkeeper Shashi Kant and also on the basis of the medical, electronic and other circumstantial evidence on record, this Court vide a detail judgment dated 12.7.2013 held the accused Sonu @ Gagan Singh guilty of the offence under Section 302 Indian Penal Code.

It has been observed by this Court in the judgment that it stands established that the deceased Gautam aged about 18 years was a student of 12th class at the time of the incident and that the deceased Gautam was using a mobile phone make G­Five having IMEI No. 353298048909010 with SIM No. 9599592118. It also stands established that on 5.11.2011 at about 7:00 PM Gautam had seen her friend Sonia a young girl residing in the same area along with the accused Sonu @ Gagan in compromising / intimate position behind a tree; that Sonia expressed her apprehensions to the accused Sonu that Gautam would disclose her affairs St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 108 to everybody in the area on which the accused Sonu @ Gagan Singh assured her not to worry and he would ensure that Gautam would not be able to tell anybody; that on 5.11.2011 at about 8:09 PM Pintoo the friend of Sonu @ Gagan Singh made a call from his mobile No. 9599592370 on the mobile phone of Sonu @ Gagan Singh i.e. 9599592118 and asked him to have soup with him; that thereafter Gautam left the house and he along with Pintoo went to the rehri of Govind Prashad and after taking soup and smoking cigarettes, they went towards their respective houses; that on the way to his house, Gautam went towards the DDA ground to attend the call of nature, the accused Sonu @ Gagan Singh committed his murder by strangulating him with his own belt; that Gautam offered a stiff resistance and during the scuffle he received injuries / abrasion on his face; that while committing the murder of Gautam the thorn of the bushes got entangled in the hairs of accused Sonu @ Gagan Singh; that at about 9:00­9:15 PM the accused Sonu @ Gagan Singh had gone to the shop of barber Ali for getting himself bareheaded; that accused Sonu was having small thorns of bushes in his hairs and when Ali inquired about the thorns, Sonu asked him to mind his own business; that thereafter Ali bare headed Sonu and asked for Rs.20/­ as charges but the accused gave him only Rs.10/­ and when Ali insisted for remaining Rs.10/­, the accused Sonu asked Ali to accompany to the mobile shop and he would sell his mobile phone; that thereafter both Ali and Sonu went to the shop of Shashi Kant where the accused sold a mobile set make G­Five of black colour to Shashi Kant which mobile was actually St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 109 belonging to the deceased Gautam; that in order to check the mobile phone Shashi Kant inserted a new SIM bearing No. 8527532252 in the said mobile set and then made a call on his own mobile phone (9599345134) and after it was found working he purchased the same for a sum of Rs.300/­; that out of the said Rs.300/­ the accused Sonu gave remaining Rs.10/­ to Ali.

It also stands established that in the meanwhile when Gautam did not return home, his father Shubh Narayan Prashad tried to search him in the area and also went to the house of Pintoo who informed him that after having the soup they went towards their respective houses; that in the morning one Rahul the neighbour of Shubh Narayan informed him that the dead body of Gautam was lying in the DDA fields; that Shubh Narayan immediately rushed towards the said fields and found that his son Gautam was lying dead and his belt was tied around his neck; that Shubh Narayan opened the belt and left the same there in the fields and took the dead body of his son to his house and called the police by dialing 100 number; that on the basis of statement of Shubh Narayan Prashad the present case was got registered; that the police seized the belt from the DDA ground at the instance of Shubh Narayan Prashad.

Further, it has been established that during investigations a secret information was received that the deceased Gautam and the accused Sonu used to talk to one girl namely Sonia @ Pinki and the murder of Gautam was committed on account of the said girl; that inquiries were made from Sonia @ Pinki who revealed that she and Sonu were having an St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 110 affair and on 5.11.2011 Gautam had seen her along with Sonu behind a tree in compromising position on which she expressed her apprehensions to Sonu on which Sonu assured her that Gautam will not be able to speak; that at the instance of Sonia the accused Sonu @ Gagan Singh was apprehended from his house; that during interrogation the accused disclosed his involvement in the present case; that the accused disclosed that after committing the murder of Gautam he removed his mobile phone from his pants and threw the SIM card in a pond and while committing the offence some thorns got entangled in his hairs after which he went to a barber shop near Police Station where he got himself bare headed; that the accused further disclosed to the police that since he could not pay the full charges of the barber, he sold the mobile phone of Gautam to a mobile shop.

The medical evidence on record establishes that the death of the deceased Gautam was caused due to asphyxia consequent to strangulation and the belt can be used in causing the strangulation. It indicates and proves the use of force upon the deceased before he was strangulated and also conclusively establishes death by strangulation by belt i.e. homicidal. Further, the electronic evidence on record is compatible to the prosecution case and lends credence to the testimony of the various prosecution witnesses.

In view of the above, it has been held that the prosecution has been able to establish and prove the intent and knowledge (as contemplated under Section 300 Indian Penal Code) of the accused Sonu @ Gagan St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 111 Singh to commit the murder of Gautam for which he has been held guilty of the offence under Section 302 Indian Penal Code and accordingly convicted.

Heard arguments on the point of sentence. The convict Sonu @ Gagan Singh is stated to be a young boy of 23 years having a family comprising of aged widow mother, two married sisters, one younger brother, wife and one son aged about three years. He is 5th class pass and is a Driver by profession. Ld. Counsel for the convict has vehemently argued that the convict Sonu is a first time offender and is not involved in any criminal case. He has further argued that the convict belongs to a very poor family and his father has already expired in the year 2009 and now the convict has the responsibility of his entire family. He has also pointed out that the convict is in judicial custody since 7.11.2011 and has prayed that a lenient view be taken against the convict.

The Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Sonu @ Gagan Singh. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 112

I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.

The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:­

(a) Where the murder has been committed after previous planning and involves extreme brutality; or

(b) Where the murder involves exceptional depravity. The mitigating circumstances which were mentioned in that judgment were:­

(a) That the offence was committed under the influence of extreme mental or emotional St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 113 disturbance;

(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;

(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;

(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;

(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;

(f) That the accused acted under the duress or domination of another person; and

(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:­

(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.

(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.

St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 114

(c) When the murder of an innocent child, a helpless woman is committed.

It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.

The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation.

Now I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that the convict Sonu @ Gagan Singh is a young boy and is a first time offender. The aggravating factors are that the deceased Gautam was also a young boy St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 115 of 18 years. The murder of Gautam has been committed in cold blood so that he should not expose the illegitimate relations between the convict Sonu @ Gagan Singh and Sonia whom Gautam had seen in a compromising / intimate position just a few hours before his death.

After having considered the submissions made before me and the various aggravating and mitigating factors, I am of a view that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case. Therefore the convict Sonu @ Gagan Singh is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs. 10,000/­ (Rs. Ten Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.

Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial.

The convict is informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with his jail warrants. St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar Page No. 116

File be consigned to Record Room.

Announced in the open court                                   (Dr. KAMINI LAU)
Dated: 25.7.2013                                             ASJ­II(NW)/ ROHINI 




St. Vs. Sonu @ Gagan, FIR No. 341/11, PSAman Vihar                      Page No. 117