Delhi District Court
S.C. No. 93/10 Fir No. 459/06 State vs . Vijay Pal 1/99 on 6 September, 2014
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No. 93/10
(Unique ID No.02403R0086492009)
FIR No. 459/2006
PS: Vasant Vihar
U/S: 302 IPC
State
Versus
Vijay Pal
S/o Sh. Bugre Singh
R/o 2028/22, New Pilanji, Kotla,
South Extension, New Delhi.
Date of Institution : 18.12.2006
Date of Institution in Session Court : 06.10.2010
Date of Pronouncement of Order : 03.09.2014
JUDGMENT
1. Accused Vijay Pal has faced this trial on the charge of having murdered Isabelle Dessoy, a Belgium national, on 23.09.2006 at about 8.30 pm at her residence i.e. E-9/12 Vasant Vihar, New Delhi. Accused took the plea of alibi and his defence is that actually the murder had been committed by Donatien Konig, who is son of the S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 1/99 deceased as he did not like the proximity of the accused, who was working as a Driver, with his mother and Donatien insisted that the accused should reach the spot so that he can be framed in this case. Donatien Konig was 14-15 years of age at the time of the offence.
2. State machinery came into motion on 23.09.2006 at 8:47 p.m when an information regarding quarrel at House No. E-9/12, Vasant Vihar, was received vide DD No. 34A. This DD was marked to S.I S.S. Yadav, who moved to the spot alongwith Ct. Suresh Kumar. Duty Officer gave information to Inspector Jai Kishan, who also moved to the spot. When Inspector Jai Kishan reached at House No. E-9/12, Vasant Vihar, Ct. Suresh met him and informed him that SI S.S. Yadav had gone to Safdarjung Hospital. S.I S.S. Yadav came back at the spot from the hospital, where Isabelle Dessoy was declared brought dead. SI S.S. Yadav recorded the statement of Donatien Konig, who is son of the deceased. In his statement, which he gave in writing, he stated that he alongwith his mother Isabellewere living at E-9/12, Vasant Vihar, Ground Floor since February, 2006. His mother worked as Personal Secretary to the S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 2/99 Ambassador of Belgium. Vijay Pal was their Car Driver for more than a year. His mother had gone with Vijay Pal in his Santro Car No. DL 9CM 0038 for swimming at Ashoka Country Resort, Kapashera, Delhi, at about 12:00 noon. She came back alone at around 5:30 p.m and told him that she had an altercation with Vijay Pal on the way back as the Driver was behaving in a very crazy manner and was driving the Santro Car at a high speed, so she got down from the car, came in a Taxi while Vijay Pal tried to drag her again in the car. At about 6:00 p.m, he (Donatien Konig) left for Priya Complex, Vasant Vihar and met his friend Niko Santkin there. At about 8:30 p.m, he received a call of his mother from residential telephone No. 41661088 on his mobile No. 9871861030 and his mother was screaming and told him that Vijay Pal had injured her with knife and she asked him to come fast at home to save her from Vijay Pal and between conversation, he heard Vijay Pal shouting at her and thereafter the phone was disconnected. He came back to home with his friend Niko Santkin in a Rickshaw and after reaching home, he found his mother to be lying unconscious on the floor in a small room next to drawing room in a pool of S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 3/99 blood and a blood stained kitchen knife was lying near his mother. Vijay Pal and his Santro Car were not there. His friend Niko Santkin called his father Eric Santkin, who reached his house alongwith Jean Louis Van Belle. He (Donatien Konig) rang for ambulance which took his mother to the Safdarjung Hospital. Jean Louis Van Belle and Eric Santkin went in the ambulance. On this statement, Rukka was prepared by SI S.S. Yadav and the case was got registered. The scene of crime was inspected and a site-plan was prepared. Photographer took photos of the scene. Crime Team lifted chance prints. The exhibits were lifted. The statements of the witnesses were recorded.
3. On 24.09.2006, on an information given by the informer, Vijay Pal was apprehended and his Santro Car was also taken into possession. He made a disclosure and thereafter on his pointing out, his blood stained clothes were also recovered.
4. After completion of the investigation, charge-sheet was filed and as the offence under Section 302 IPC is exclusively triable by the court of Session, the case was committed to this court. S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 4/99
5. On 17.04.2007, charge under Section 302 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
6. Prosecution examined 32 witnesses to prove its case. 6.1 PW-1 Jean Louis Van Belle stated that on 23.09.2006 at around 8:45 p.m, when he was present at his house, he received a telephone call from Trade Commissioner of Belgium Embassy that Isabelle Dessoy was lying in her house in a pool of blood and she was bleeding profusely. Since he was the Officer on duty, he rushed to her house at Vasant Vihar. An ambulance had already arrived there and Isabelle Dessoy was already shifted to the Ambulance. Trade Commissioner Eric Santkin was also present in the Ambulance. He also stayed in the Ambulance and Isabelle Dessoy was taken to Safdarjung Hospital in the said Ambulance where she was declared brought dead at about 9:30 p.m. His statement was recorded by the police. Next day in the morning at about 7.30 a.m., he went to the house of Mr. Eric where police was present and from there he reached Safdarjung Hospital and identified dead body of S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 5/99 Isabelle Dessoy in the mortuary. He proved his statement to this effect as Ex. PW1/A. He also participated in inquest proceedings and signed unnatural death report as Ex. PW1/B. He stated that deceased was a Belgium National and was having a valid official passport. He identified photocopy of the passport of the deceased and the same was marked as PW1/A. No question was asked from this witness in cross-examination by the Counsel for the accused. 6.2 PW-2 Niko Santkin stated that he knew Donatien Konig, who was his friend and was living at E-9/12, Vasant Vihar. He stated that on 23.09.2006, Donatien Konig met him at Priya Cinema Complex at about 6:15 p.m. His father was Trade Commissioner in Belgium Embassy and Isabelle Dessoy was mother of his friend, who was working as Secretary to Ambassador of Belgium. On that day, at about 8:30 p.m, his friend Donatien Konig received a telephone call on his mobile from her mother that her driver
-accused Vijay Pal was stabbing her and Donatien told him about the distress call of his mother. He alongwith Donatien reached his house in an Auto-rickshaw and they found Isabelle was lying in a S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 6/99 pool of blood in a small room next to the drawing room. His friend Donatien Konig began to cry for help. He (witness) immediately called from his mobile phone No. 9899605614 to his father Eric Santkin on his moible No. 9810511867 and told him that Isabelle was lying in a pool of blood in her house and he asked him to come for help. His father immediately reached there and a CATS Ambulance also reached there. They alongwith his father took Isabelle in the Ambulance at about 9:00 p.m. At the same time, Jean Louis Van Belle also reached there and he also joined his father in the Ambulance. His father and Jean Louis Van Belle went with her to Safdarjung Hospital where Isabelle died. No question was asked from this witness in cross-examination by the Counsel for the accused.
6.3 PW-3 Eric Santkin stated that he was working as Belgium Trade Commissioner in Belgium Embassy and was living at E-14/14, Vasant Vihar. On 23.09.2006, his son Niko Santkin called him on his mobile No. 9810511867 from his mobile No. 9899605614 at about 8:45 p.m and informed him that Isabelle- S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 7/99 mother of his friend Donatien was lying in a pool of blood in her house No. 9/12, Vasant Vihar. He (witness) immediately informed Jean Louis Van Belle on his mobile No. 9818686270 from his mobile phone at about 8:45 p.m. He himself rushed to the house of Isabelle Dessoy and on reaching there, he found her lying in a pool of blood in a small room next to the drawing room. A CATS Ambulance also reached there at about 9:00 p.m. He took Isabelle Dessoy in the Ambulance with the help of her son and other. At that time, Jean Louis Van Belle also reached there and he also joined him in the Ambulance. They took Isabelle to Safdarjung Hospital where she was declared brought dead at about 9:45 p.m. No question was asked from this witness in cross-examination by the Counsel for the accused.
6.4 PW-4 Donatien Konig, a16 years old boy, deposed after satisfaction of the court. He stated that on 23.09.2006, he was staying with his mother Isabelle at E-9/12, Ground Floor, Vasant Vihar, New Delhi, since February 2006. His mother was working as Personal Secretary to the Ambassador of Embassy of Belgium. His S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 8/99 mother had employed a driver by the name of Vijay Pal. He identified the accused in the court. Accused Vijay Pal was working as driver for about one year before the day of the incident. Vijay Pal owned a Santro car No. DL 9CM 0038. On 23.09.2006 at about 12:00 noon, his mother left with Vijay Pal in the above mentioned Santro for swimming at Ashok Country Resort, Kapashera. She came back at about 5:00 p.m. He could not recall what conversation had taken place between him and his mother at that time. At about 6:00 p.m, he left for Priya Complex alone and met his friend Niko Santkin whose father was working as Trade Commissioner in the Embassy of Belgium. At about 8:15 p.m, he received a telephone call on his mobile No. 9871861030 from his mother from their residential landline phone No. 41661088. She was shouting, screaming and asked for help. She told him that accused Vijay Pal had injured her. He recognized clearly the voice of Vijay Pal, who was shouting at his mother. Thereafter, the phone was disconnected. He rushed to the home in a Rickshaw with his friend Niko Santkin. He reached home at about 8:30 p.m. When he entered his house, glass of the door was totally broken. He found S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 9/99 that his mother was lying in a pool of blood in a small room. It was next to the kitchen and about 5 meters from the door from which he entered his house. His mother was lying unconscious. He saw a kitchen knife of green and red colour with blood stains lying near his mother. A broken gold chain of his mother was also lying near her. He shouted for help. His friend Niko Santkin called his father Eric Santkin, who reached at his house alongwith Jean Louis Van Belle within five minutes, who called for an Ambulance. Ambulance reached his house at about 9:00 p.m. His mother was not dead by that time. She was taken in the Ambulance to Safdarjung Hospital with Eric and Jean Louis. At about 11:00 p.m, police official took his statement which he proved as Ex. PW4/A. After recording his statement, Eric and Jean Louis told him that at his own when police was also there, his mother had died. Thereafter, he was taken to the house of Eric for sleeping. Next day, he went to the Safdarjung Hospital and identified the dead body of his mother vide Ex. PW4/B. He stated that his mother had multiple stab wounds. He also proved the death report of his mother which was already exhibited as Ex. PW1/B. He was cross- S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 10/99 examined by the Ld. Addl. PP with the permission of the court which he did after the lunch hours. His statement Ex. PW4/A was read out. After hearing the statement, the witness admitted that when his mother came in the evening at about 5:30 p.m at home alone , she had told him that she had an altercation with driver Vijay Pal when she was returning home as he was behaving in a very crazy manner and was driving Santro car at a high speed. He further stated that his mother had also told him that since Vijay Pal was behaving in such a manner, she got down from the car and came home in a taxi while the driver had tried to drag her in the car again. He also accepted that his mother had told him over telephone that accused Vijay Pal had caused injuries to her with knife and that his mother had asked him to come home fast to safe her from accused Vijay Pal during her telephone conversation. He accepted that his mother was lying unconscious on the floor next to the drawing room. He also accepted that when he came back home, he did not find either the accused or his Santro car. He accepted that he had rung for Ambulance and he forgot to depose about this fact in his examination-in-chief before lunch due to lapse of time. S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 11/99 In his cross-examination, he stated that he left his house at 6:00 p.m on 23.09.2006 for PVR. The distance between PVR Complex and his house can be covered within maximum five minutes on foot. He could not tell if police had taken any document to prove the ownership of mobile phone No. 9871861030. He took about 15 minutes to reach his house from PVR Complex on a Rickshaw on that day. He volunteered to state that because there was traffic and there were few Rickshaws and they were asking more money hence he took time for bargaining. When he reached his residence, main gate of his house was open. No other family lived on the ground floor. On the first floor, a family working with United Nation was living. On the second floor, family of the landlord was living. Nobody on first floor or second floor was present at the spot when he reached his house. He straightway went to the drawing room. He could not tell as to when police reached his house. Father of his friend reached his house after 5-10 minutes. Before father of his friend reached his house, he had already called the Ambulance. The Ambulance came at about 9:00 p.m. Before Ambulance reached his house, police had already come to his house. He stated that he S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 12/99 remembers all the material details about this incident and the case since it involved his mother. He did not talk with the police before taking his mother to the Ambulance as they were talking in Hindi. He did not accompany his mother to the Ambulance, and volunteered to say that Eric and Jean Louis had accompanied in the Ambulance. He had half a minute conversation with his mother when she sought help from him on phone. Police had taken his mobile phone for a while and had returned it to him but the mobile phone was not seized. At about midnight, he left his house for the house of his friend after his statement was recorded by the police. He could not tell, if police had seized the blood stained clothes, knife and broken glass pieces etc from the spot or not. He stated that he was in fit state of mind when he gave his statement to the police, although, he was disturbed due to death of his mother. He met police in the house of his friend Niko, at his house, at about 9:00 a.m next day when his statement was recorded. He also stated that his mother was friendly with Vijay Pal but it was nothing more than that. He denied the suggestion that his mother used to go out with Vijay Pal in late nights and used to drink liquor with him. He could S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 13/99 not tell the time when Vijay Pal came to their house on 23.09.2006 as he was sleeping. He met his mother on 23.09.2006 at about 12:00 noon and after that he met her at 5:00 p.m. He could not tell, if Vijay Pal was also with his mother at 5:00 p.m when he met her but stated that he had not seen Vijay Pal between 12:00 noon till midnight. He admitted that his mother had taken Vijay Pal to Hongkong and Bangkok and sometime his mother used to go with Vijaypal for parties, dinner and fun. He also stated that he never cared for her mother's relationship with Vijay Pal like when she went out with Vijay Pal out of the country etc. as this was her personal matter. He stated that no one heard the screams of her mother for help as he inquired from the neighbours. He denied the suggestion that his mother did not give a call on his mobile No. 9871861030 or his mother never told him the name of the assailant being Vijay Pal. He also denied the suggestion that he did not like the intimate relations of his mother with Vijay Pal and hence he cooked up a story with the affair of the father of his friend and local police to falsely implicate the accused. He also denied the suggestion that he used to fight every night with his mother S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 14/99 whenever she used to come late or when Vijay Pal lived whole night in her room. He also denied the suggestion that Vijay Pal after dropping his mother, left their residence and came back again and found her lying in a unconscious state and Vijay Pal then himself made a telephone call to the PCR and the Ambulance. Another suggestion was put to him that a telephone call was given by Vijay Pal to him from his number and from the landline phone of the witness to inform him that his mother was lying in a pool of blood. He also denied the suggestion of being a tutored witness. 6.5 PW-5 Ram Avtar is Watchman. He stated that on 23.09.2006 at about 8:30 p.m, he was working as Watchman in Kothi No. 9/4, Vasant Vihar and was present at the main gate of the said Kothi. He stated that he saw Vijay Pal, who sat in a car and went away towards DPS school. He stated that Vijay Pal was working as a Driver with the occupant of Kothi No. 9/5. This witness was cross-examined by the Ld. Addl. PP but he denied the suggestion that on 23.09.2006 at about 8:30 p.m., he heard noise of glass breaking from the ground floor of Kothi No. 9/12. He, S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 15/99 however, admitted that accused Vijay Pal came out of Kothi No. 9/12, sat in a Santro car and went away towards DPS school. He denied the suggestion that after five minutes, son of that foreigner lady came and went inside the Kothi or when he came out, he started crying. He denied the suggestion that he was deliberately suppressing the truth so as to save Vijay Pal.
6.6 PW-6 Gaya Prashad Misha is another Security Guard, who was posted at the gate of Kothi No. E-9/11, Vasant Vihar, which was Bosnia Embassy. He stated that on 23.09.2006 at about 8:30 p.m, he was present outside the said Embassy as Security Guard, he heard voice of glass breaking. The said voice came from the adjacent Kothi i.e E-9/12 but he did not pay any attention. Accused Vijay Pal was Driver with occupant of Kothi No. E-9/12 and he came out of the said above Kothi, sat in a Santro and went away from there driving the car. After sometime, son of Isabelle came from outside and went inside the Kothi. After few minutes, he came out of the Kothi and started crying loudly. Other people ran towards Kothi No. E-9/12 and this witness also followed them. He inquired S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 16/99 from the persons present and they informed him that son of Isabelle cried that her mother was killed by accused Vijay Pal. In his cross- examination, he stated that except knowing that Vijay Pal was Driver, he did not have any personal acquaintance with Vijay Pal prior to the incident.
6.7 PW-7 Nirmal Kumar Tiwari is Ambulance Officer. He deposed that on 23.09.2006 at about 8:43 p.m, a call was received regarding a quarrel at E-9/12, Vasant Vihar. He went there with his Ambulance where he saw a crowd. He entered the premises and found one lady lying on the floor and blood was also spread on the floor. He checked her body and found her dead. He removed the body of that lady in Ambulance and two Belgium Nations also accompanied him to hospital. He stated that name of the lady was Isabelle Dessoy.
6.8 No witness was examined as PW-8.
6.9 PW-9 Mahender Kumar is the previous owner of Santro Car No. DL 9CM 0038. He stated that he purchased the said S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 17/99 Santro Car in the year 2003 and on 16.12.2005, he sold the car to Vijay Pal.
6.10 PW-10 Jagdish Yadav is Swimming Pool Attendant. He stated that on 23.09.2006, a foreigner lady and an Indian male came at about 1:30 p.m to Ashoka Country Resort, Rajokri Road, Kapashera for swimming. He charged Rs. 600/- from them and issued a receipt for the same. They remained there till 4:30 p.m and had ordered fruit punch and paneer tikka. He stated that the foreigner lady entered her name in the pool register as some Dessoy but she did not mention the name of the male person in the register. On 30th September, police officials came from P.S. Vasant Vihar and showed him one passport and one photocopy of the passport and he identified the photos of the male and female, who had visited the swimming pool. The photocopy of the passport of the lady was marked as mark PW1/A. Bill No. 0113505 dated 23.09.2006, Receipt-Book of Bills 3012335 and swimming pool register containing entries regarding arrival and departure of the visitors were proved as Ex. PW10/1, Ex. PW10/2 and Ex. PW10/3 S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 18/99 respectively. He identified the accused in the court. In his cross- examination, he stated that on receipt No. 335, name of any guest or his signature does not appear. He admitted that name of the accused Vijay Pal was not mentioned in Ex. PW10/3. He also admitted that Ex. PW10/1 does not bear the name and signatures of any guest.
6.11 PW-11 HC Sunder Lal is the Photographer. He stated that on the night of 23/24.09.2006, he received a call to report at E-9/12, Vasant Vihar. He reached there. He saw blood and glass pieces to be lying there. In a small room, two steps above the floor, one knife and pool of blood was lying. In the gallery, one gold chain and blood was lying. In the kitchen, on washing machine, one blood stained piece of glass was lying. There were blood stains on the walls also. He took 14 photographs. The prints of 13 photographs were proved as Ex. PW11/1 to Ex.PW11/13 and 14 negatives were proved as Ex. PW11/14 to Ex. PW11/27.
6.12 PW-12 ASI Dharamvir Singh is Finger Print Expert. He stated that on 23.09.2006, on receipt of information, he reached S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 19/99 E-9/12, Vasant Vihar and lifted four chance prints from the spot. He proved his report as Ex. PW12/A. In his cross-examination, he stated that he inspected only the disturbed places at the alleged incident.
6.13 PW-13 HC Kishan Chander stated that on the night of 23.09.2006 at about 8:41 p.m when he was on PCR duty, a call was received from mobile phone No. 9810059791 that a murder was committed in premises No. E-9/12, Vasant Vihar. The informer also told him that a quarrel had taken place at premises No. E-9/12. He filled the form and transmitted the information through Control Room to P.S. Vasant Vihar. The said information was recorded vide DD No. 34A in P.S. Vasant Vihar. He proved the form as Ex. PW13/A. He was cross-examined by the Ld. Addl. PP on the correctness of the mobile phone number mentioned in Ex. PW13/A and he stated that the said number was correct and the mobile number mentioned in his statement was wrongly recorded by the IO. In his cross-examination, he stated that name of the informer is not mentioned in Ex. PW13/A. S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 20/99 6.14 PW-14 HC Mohd. Tahir is the Duty Officer. He stated that on 23.09.2006 at about 8:47 p.m, he received a wireless message from Control Room, South-West District from HC Kishan Chand that a quarrel was going on at house No. E-9/12, Vasant Vihar. He recorded this information in DD No. 34A and it was marked to S.I S.S. Yadav, who alongwith Ct. Suresh Kumar proceeded for the spot. He also informed the SHO and who also went to the spot. At about 9:45 p.m, he received a call from Safdarjung Hospital to the effect that Isabelle Dessoy was brought dead. He recorded this information as DD No. 35A. He proved both these DDs as Ex.PW14/A and Ex.PW14/B respectively.
6.15 PW-15 ASI Virender Singh is the Duty Officer. He stated that on 24.09.2006 at 12:05 night, he recorded the FIR on receipt of Rukka from SI S.S. Yadav through Ct. Suresh. He proved the FIR as Ex.PW15/A. The investigation of this case was handed over to Inspector Jai Kishan, SHO.
6.16 PW-16 HC Sri Om is the Head Proficient. He stated that on 09.10.2006, accused Vijay Pal was brought to his office by SHO, S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 21/99 P.S. Vasant Vihar alongwith two more Constables and he took fingerprints and palm prints of the accused.
6.17 PW-17 SI Madan Pal is the Draftsman. He stated that on 19.10.2006, he visited E-9/12, Vasant Vihar and took rough notes and measurement on the pointing out of Inspector Jai Kishan. He prepared the scaled site-plan on the basis of measurement and proved it as Ex. PW17/A. 6.18 PW-18 Amarjeet Singh Bhurji is the Nodal Officer of Airtel. He brought the ownership record of land line telephone No. 41661088, which was in the name of Dessoy Isabelle and was working at E-9/12, Ground Floor, Vasant Vihar, New Delhi. He also brought the statement of incoming and outgoing calls of this phone of 23.09.2006. He proved the ownership records and call detail records as Ex. PW18/B. 6.19 PW-19 R.K. Singh is another Nodal Officer of Bharti Airtel. He brought the records pertaining to mobile phone No. 9810059791 in the name of Vijay Pal, Belgium Embassy. He proved the records S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 22/99 as Ex. PW19/A. He also brought the records pertaining to mobile phone No. 9871861030 in the name of Dessoy Isabelle. The same were proved as Ex. PW19/B. Call detail records of mobile phone No. 9871861030 of 23.09.2006 were proved as Ex. PW19/D while the call detail records of mobile phone No. 9810059791 of 23.09.2006 were proved as Ex. PW19/E. In his cross-examination, he stated that there is almost no chance of the computerized call detail records being inaccurate. There is no possibility of their being any error of time mentioned in the call details as they are taken direct from the server and this is an accurate record. 6.20 PW-20 Dr. Sugandha Arya proved the MLC dt. 25.9.2006 at 1.30 am of Vijay Pal as Ex. PW20/A. 6.21 PW-21 Ct. Suresh Kumar proved taking of Rukka to P.S for getting an FIR registered.
6.22 PW-22 A.K. Srivastava is Assistant Director (Biology) in FSL, Rohini. He stated that on 27.09.2006, he inspected Santro Car No. DL 9CM 0038 and lifted blood stains from the car mark A-1 to S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 23/99 A-9 and proved his report as Ex. PW22/A. After sealing the lifted exhibits, he handed them over to the IO in sealed condition vide memo Ex. PW22/B. He further stated that on 28.09.2006, he received 13 parcels in this case and after examining them scientifically, he prepared his reports as Ex. PW22/C to Ex. PW22/F. 6.23 PW-23 Dr. Shishir Chandan proved the MLC of deceased as Ex. PW23/A according to which, she was brought dead to the hospital.
6.24 PW-24 Dr. Sugandha Arya proved the MLC No. C/216905/06 of Vijay Pal dt. 9.10.2006 as Ex. PW24/A. According to the MLC, blood sample of Vijay Pal was also taken and was given to the police.
6.25 PW-25 SI Avdesh Kumar is Fingerprint Expert. He stated that on 13.10.2006, he received four chance prints, which were lifted from the scene of crime alongwith the specimen fingerprints of three persons which were - one deceased, one accused and one S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 24/99 inmate of the house for comparison. He compared the chance prints with the specimen fingerprints and found chance prints Q4 to be identical with right palm print of Vijay Pal. He proved his report in this regard as Ex. PW25/A. Chance prints mark Q4 was proved as Ex. PW25/B and the specimen fingerprint was proved as Ex. PW25/C. 6.26 PW-26 Parshu Ram Singh is Sr. Scientific Officer (Physics), FSL, Rohini. He stated that on 15.11.2006, he received four sealed envelopes in his Division from Biology Division and after examining them, he prepared his report which he proved as Ex. PW26/A. He stated that Ex.1 (pieces of floor) and Ex.2 (pieces of floor) were having similar physical characteristics and Ex.3 (knife with its tip missing) and Ex.11 (tip of knife) were found to be physically fitted when placed in juxta position that metal piece Ex. 11 was part of blade Ex.3.
6.27 PW-27 HC Hari Singh deposed to have delivered the copy of the FIR on 24.09.2006 at the house of Illaka Magistrate, DCP and Joint C.P concerned.
S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 25/99 6.28 PW-28 HC Bhagwan Sahai is the MHC(M). He stated that on 24.09.2006, Inspector Jai Kishan deposited sealed pullandas vide entry No. 1565 of the Malkhana Register. On 26.09.2006, Inspector Jai Kishan took sealed pullanda of knife and tip of the knife for seeking opinion of the Doctor and the pullandas were deposited again in the Malkhana on the same day in sealed condition with the seal of Safdarjung Hospital and he proved this entry as Ex. PW28/A. On 27.09.2006, IO deposited one sealed pullanda with the seal of FSL, Rohini which he deposited vide entry No. 1570 as Ex. PW28/B. On 28.09.2006, 13 pullandas with 3 sample seals were sent to FSL, Rohini through S.I. S.S. Yadav. On 09.10.2006, IO deposited blood sample of accused with sample seal of Safdarjung Hospital vide entry No. 1582 and on 10.10.2006, it was sent to FSL Rohni vide entry Ex. PW28/C. 6.29 PW-29 Sh. Satish Kumar is the Metropolitan Magistrate, who recorded the statement of Ram Avtar and Gaya Prashad under Section 164 Cr.P.C on 01.12.2006. He proved the statement of Ram Avtar as Ex. PW29/C and statement of Gaya Prashad was proved as S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 26/99 Ex. PW29/F. 6.30 PW-30 SI Surender Kumar stated that on 24.09.2006, accused Vijay Pal was interrogated by Inspector Jai Kishan in the presence of S.I. S.S. Yadav and himself. He proved the disclosure statement of the accused as Ex. PW30/A. Accused disclosed that he could get recovered his T-shirt and pant which he had hidden in bushes near Olof Palme Marg near Vasant Gaon. Accused took them to the place of recovery and got recovered from the bushes a white colour T-shirt and blue colour pant. Both these clothes were kept in a pullanda and were seized vide seizure memo Ex. PW30/B. The pullanda was deposited in the Malkhana. He took the accused for medical examination. In his cross-examination, he stated that he met the accused at P.S. Vasant Vihar on 24.09.2006 at 9:15 p.m. He signed the recovery memo and the pointing out memo between 10:30 to 11:40 p.m on 24.09.2006. The bushes from where the recovery was effected were near Army Office.
6.31 PW-31 S.I S.S. Yadav is the 1st IO. He stated that on 23.9.2006, on receipt of DD No. 34 A, he alongwith Ct. Suresh S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 27/99 reached at the spot i.e E-9/12, Vasant Vihar, New Delhi, and found that the injured has already been removed from the spot. Blood was lying at the spot. In the meantime, he received a copy of DD No. 35A. He then went to Safdarjung Hospital where he found that a lady Isabelle Dessoy was declared brought dead. No eye-witness was found in the hospital. He came back at the spot where Donatien Konig - son of the deceased met him. He recorded statement of Donatien Konig as Ex. PW4/A and made his endorsement on the same as Ex. PW31/A and sent the Rukka through Ct. Suresh Kumar. SHO, Inspector Jai Kishan reached at the spot and he took over the investigation. Ct. Suresh brought copy of the FIR and Tehrir at the spot and gave it to the SHO. Exhibits like blood of the deceased, blood stained pieces of floor, earth control, one blood stained kitchen knife without tip and some broken glass pieces, were lifted from the spot. Exhibits were seized vide seizure memo Ex. PW31/B and were sealed with the seal of 'JK'. He accompanied the IO for getting the postmortem done and thereafter the dead body was handed over to Jean Louis Van Belle vide Ex. PW31/C. Doctor handed over sealed pulldandas which S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 28/99 were seized by the IO vide Ex. PW31/D. On 24.09.06, on the basis of a secret information, he alongwith the IO went to Patiala House Courts in search of accused Vijay Pal and his car was intercepted at Shahjhan Road where he was apprehended. He proved the arrest memo of the accused Vijay Pal as Ex. PW31/E and his personal search memo was proved as Ex. PW31/F. The Passport, DL, I- card, RC and Insurance of Car No. DL 9CM 0038 were seized vide seizure memo Ex. PW31/G. The car and the keys were also seized vide seizure memo Ex. PW31/H. He recorded the disclosure statement of accused which he proved as Ex. PW30/A. In pursuance of his disclosure statement, the accused got recovered blood stained pant of blue colour and half sleeves T-shirt of white colour, which he had hidden near the bushes in Basant village which were seized vide Ex. PW-30/B. On 25.9.06, he alongwith IO reached at house no. E-9/12, Vasant Vihar and seized photocopy of passport no. LD 117381 of deceased vide seizure memo Ex.PW31/I, which was already marked as PW1/A. On 28.9.2006, he deposited the exhibits at FSL, Rohini at the instance of IO. On 30.9.2006, he alongwith IO went to Ashoka Country Resort, Rajokari Road, S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 29/99 Kapashera and seized bill, Register etc. from there, vide seizure memo Ex. PW10/A. On 9.10.06, accused Vijay Pal was produced before the concerned court and from there IO obtained the permission for obtaining the samples of his blood and palm prints. After taking permission, accused was taken to S.J. Hospital where his blood sample was taken by the doctor Alexender F. Khaka. IO seized these vide seizure memo Ex.PW31/J. On 10.10.06, he deposited exhibits at FSL, Rohini at the instance of IO. On 19.10.2006, in his and IO's presence draughtsman, SI Madan Pal took rough notes of the place of incident. On 21.11.2006, he brought the scaled site plan and handed over the same to IO. On 22.11.06, he brought result of exhibits from FSL, Rohini and the same was also handed over to IO. On 24.11.06, results from Finger Print Bureau was also brought and handed over to IO. On 28.11.06, he brought results from Physics Division of FSL, Rohini and handed them to IO. He identified the case properties like knife, glass piece, clothes of the accused and golden colour chain. In his cross-examination, he stated that he was in police station when he received DD No. 34-A. The spot was at a distance of about 1 ½ S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 30/99 Km. from the PS and it took him about 15 minutes in reaching the spot. He stated that he did not inquire as to who had given the information to the police about the incident as his concern was to know as to who was hurt. The glass of one sliding gate, was broken. From the spot, he left for Safdarjang Hospital alone in his Zen car. He received the copy of the DD No. 35-A at about 10.15 PM, on that day at the spot. Neither Nico Santkin nor his father- Eric Santkin met him in the hospital. He admitted that as per the PCR Form (already Ex.PW13/A), the information regarding the incident of the present case was given to the Control Room at 8:41 p.m on 23.09.2006. He also admitted that as per Ex.PW13/A, it is mentioned that 'E-9/12, Vasant Vihar, Murder Ho Gaya, Ek Ko Kafi Chot Hai, Ambulance Bheji Jaye by HC Kishan Chand'. He admitted that there is a cutting on the word 'murder' and in place of 'murder' the word 'Jhagra' has been mentioned. The son of the injured did not meet him there. He admitted that in the PCR Form Ex. PW13/A, the telephone number of the informant has been given as 9810059791. When he reached the spot from the hospital, four- five Belgium nationals were present at the spot including Nico S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 31/99 Santkin, Eric Santkin, Jean Louis Van Belle and Donatien Konig. The ground floor was occupied by the deceased and her son Donatien Konig. There was no other occupant in that building on the ground floor. He denied the suggestion that Rukka was not prepared at the spot or that it was not sent to the PS for registration of the case through Ct. Suresh Kumar or that the statement of Donatien Konig and endorsement/rukka was made subsequently at the PS and was ante-dated and ante-timed. He stated that he wrote many documents and statements of all the witnesses in this case. Statements of Ram Avtaar and Gaya Prasad were recorded on 25.9.2006 in the after noon, statement of Mahender Singh was recorded in the PS at about 8:00 p.m on 26.09.2006. Statement of PW- Jagdish Yadav was recorded on 30.09.2006. He stated that he came to know that Vijay Pal was the culprit in this case at about 10:30 p.m on 23.09.2006 from the son of the deceased. He inquired about the address of Vijay Pal from the son of the deceased, but he himself did not know about his address except telling that Vijay Pal lives in Kotla Mubarakpur, New Delhi. No police official was sent from the spot to Kotla Mubarakpur nor anybody left the spot for S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 32/99 Kotla Mubarakpur in his presence. Neither SHO nor he went to Kotla Mubarakpur on 24.09.2006. To his knowledge, nobody was sent to Kotla Mubarakpur till 4:00 p.m on 24.09.2006. The Santro car of the accused was parked at Gate No.2 so they waited for him there. Neither SHO, nor he nor the driver, were in the position to identify the accused Vijay Pal as they had never seen him before. They saw accused for the first time at about 5:30 p.m on 24.09.2006 when he reached near his Santro Car. Since he stopped near Santro Car, it was presumed that he must be Vijay Pal. Accused was apprehended and arrested at 6:00 p.m on Shahjahan Road at the distance of about 150 meters from the beginning of Hexagon. They did not take the photographs of the place of recovery, and the clothes. The disclosure statement of accused was recorded in the police station at about 9.30 PM on 24.09.2006, in the office of the SHO. The clothes were in a polythene bag, in the bushes. The clothes were recovered from inside the bushes. He stated that he himself drove the Santro Car from UPSC to police station, and then he handed over the keys of the Car to SHO. He denied the suggestion that the blood was planted at various places of the Car or S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 33/99 on the clothes by him at the instance of the IO. He denied the suggestion that the accused was already detained by police on 23.09.2006, from the spot. He denied the suggestion that in the morning of 24.09.2006, he had produced accused Vijay Pal before DCP, where, inquiries were also made by DCP, from accused Vijay Pal. He denied the suggestion that chance-prints on the glass piece, were forcibly obtained from Vijay Pal, to create false evidence. 6.32 PW-31A Dr. Alexender F. Khakha is the Doctor, who conducted postmortem on the dead body of the deceased on 24.09.2006. He stated that there were 27 external injuries on the body of the deceased, which were caused by single edged sharp weapon. He proved his Postmortem Report as Ex. PW31 A/A. He also stated that on 26.09.2006, Inspector Jai Kishan sought subsequent opinion as to whether the injuries on the body of the deceased could be due to the recovered knife and the metallic piece of knife and as to whether the clothes of the deceased had corresponding cut marks corresponding to the injuries on her body. He proved his subsequent opinion as Ex. PW31 A/B according to S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 34/99 which, he had opined that all the injuries except injury No. 27, were caused by the weapon of offence brought for examination. He also opined that five cut marks on the clothes of the deceased corresponded to five injuries. He identified the knife with the broken blade. In his cross-examination, he stated that he does not remember to have suggested to the IO to get the handle examined from Fingerprints Expert first before he examined the same. He stated that he did not mention the presence of blood, if found on the blade at the time of examination as it was not necessary for him to do so.
6.33 PW-32 Inspector Jai Kishan deposed that on 23.09.06, he was posted as SHO, PS Vasant Vihar. On that day, a PCR call was received vide DD No. 34-A regarding quarrel at House NO. E-9/12, Vasant Vihar. He proved the said DD as Ex.PW32/A. This DD entry was marked to SI S.S. Yadav, who alongwith Ct. Suresh proceeded to the spot. Duty Officer, HC Mohd. Tahir Khan also apprised him about this DD entry. He alongwith his staff also reached at the spot where he came to know that injured has been S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 35/99 taken to S.J. Hospital by CATS Ambulance. SI S.S. Yadav had also gone to S.J. Hospital. He also went to the S.J. Hospital where, he came to know that injured Mrs. Issa Balle Dessoy, a Belgium national was declared brought dead in the hospital at 9.45pm. He again reached the spot where SI S.S. Yadav also received DD No. 35-A through Ct. Banny Singh, which was regarding death of Issa Balle Dessoy and he proved the said DD as Ex.PW32/B. SI S.S. Yadav recorded statement of Donatien Konig, the son of the deceased and sent a rukka for registration of the case u/s 302 IPC through Ct. Suresh. After that on 24.09.2006, he himself took up the investigation of this case. He prepared the site plan which he proved as Ex.PW32/C. He got the scene of crime photographed by HC Sunder Lal of Mobile Crime Team. The scene of crime was also got inspected by him from ASI Dharamveer Singh of Mobile Crime Team who lifted four chance prints from the scene of crime. He lifted the exhibits from the scene of crime and those were sealed in separate parcels and were sealed with the seal of J.K. and were seized vide seizure memo already Ex.PW31/B. The statements of witnesses were recorded. He deposited the exhibits in the S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 36/99 Maalkhana after reaching police station. Then he went to S.J. Hospital alongwith the staff and collected death summary of deceased Mrs. Issa Balle Dessoy. He prepared the inquest papers which he proved as Ex.PW32/D, the brief facts of the case Ex.PW32/E, form no. 2535-B already Ex.PW1/B and OPD record card and death report of the deceased were proved as Ex.PW32/F collectively. The exhibits received after postmortem, were seized through SI S.S. Yadav vide Seizure Memo already Ex.PW31/D. The exhibits were deposited in the Maalkhana. On the same day i.e. 24.09.06, he received a secret information that wanted accused Vijay Pal of this case had gone to Patiala House Courts to meet the lawyer. The same information was lodged by him in DD No. 15-A, which he proved as Ex.PW32/G. He alongwith the staff went to the Patiala House Courts. He found Santro Car No. DL 9CM 0038 of accused Vijay Pal parked in front of gate no. 2 of Patiala House Courts. The accused Vijay Pal came outside of the Patiala House Courts and moved in his car. His car was intercepted at Shahjahan Road, Opposite UPSC Building and after interrogation, he was arrested. He proved his arrest memo as already Ex.PW31/E, his S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 37/99 personal search memo as already Ex.PW31/F. He seized Santro Car alongwith the key with its remote vide seizure memo already Ex.PW31/H. He reached the police station alongwith the accused where his sustained interrogation was carried out and his disclosure statement was recorded which he proved as already Ex.PW30/A. He then took the accused for further investigation as per his disclosure statement. He got recovered his blood stained round- neck half white T-shirt and blue pant from bushes near Basant Gaon, near Olof Palme Marg. The blood-stained clothes were kept in a white polythene and a cloth parcel was prepared which was sealed with the seal of J.K. and seal after used was handed over to SI S.S. Yadav. The sealed parcel was taken into possession vide pointing out as well as seizure memo already Ex.PW30/B. On 26.09.2006, he took sealed parcels to the Autopsy Surgeon i.e. Dr. Alexender F. Khaka of S.J. Hospital for subsequent opinion, of clothes of the deceased, the sealed parcel of knife recovered from the place of occurrence and a sealed parcel of a small metallic piece of the same knife which was recovered from the body of the deceased at the time of postmortem. He proved his application to S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 38/99 this effect as Ex.PW32/H. On his request, the Autopsy Surgeon Dr. Alexender F. Khaka gave his subsequent opinion and re-sealed the three parcels with the seal of Forensic Medicine, Safdarjung Hospital and handed over the parcels alongwith the sample seal to this witness. On 27.09.06, he took Santro car of the accused alongwith key and its remote to FSL Rohini for inspection of the said car for blood and any other foreign material. The application to this effect was proved as Ex.PW32/I. Sh. A.K. Srivastava alongwith the team, inspected the said Santro car bearing No. DL 9CM 0038 of accused Vijay Pal with its remote and key and lifted blood from eight places of the said car and from the remote of the key. On 28.09.2006, he sent thirteen exhibits of this case alongwith three sample seals to FSL, Rohini for examination through SI S.S. Yadav. On 30.09.06, he alongwith the staff went to Ashoka Country Resort, Rajokari Road, Kapashera. On 09.10.06, he took permission from the Court of Sh. Lalit Kumar, Ld. MM, Patiala House Courts for taking finger prints and palm prints of accused Vijay Pal and his blood samples. He proved his request for this purpose as Ex.PW32/J and Ex.PW32/K respectively. The palm S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 39/99 prints and finger prints of accused Vijay Pal were taken by HC Sri Om, the Head Proficient, Patiala House Courts. The accused Vijay Pal was taken to S.J. Hospital for taking blood sample where his MLC was prepared. On 10.10.06, the sample blood of the accused alongwith the sample seal was deposited in the FSL, Rohini through SI S.S. Yadav. The palm prints and finger prints of accused Vijay Pal alongwith finger prints of deceased Issa Bael Dessoy and her son were deposited in Finger Print Bureau, Malviya Nagar, New Delhi for comparison with four chance prints lifted by Mobile Crime Team In-charge namely ASI Dharamveer Singh from the place of occurrence. He proved his request to Director, Finger Prints Bureau in this regard as Ex.PW32/L. On 19.10.06, SI Madan Pal, the Draftsman was called by him at house no. E-9/12, Vasant Vihar i.e. the place of occurrence. He prepared rough notes and prepared the scaled site plan. On 24.11.06, the report of Finger Print Expert SI Avdesh Kumar was received and as per the report, the palm print of accused Vijay Pal tallied with the one chance print lifted from the broken blood-stained glass piece found on washing machine in the kitchen of house No. E-9/12, Vasant Vihar on 23.09.06. On S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 40/99 28.11.06, one FSL report of Sh. Parshu Ram, Sr. Scientific Officer (Physics), FSL Rohini was received and as per the said report, the metallic piece recovered from the body of the deceased on 23.09.06, was part of knife recovered from the place of occurrence on 23.09.06. On 01.12.06, the statements of witnesses Gaya Prasad Mishra and Ram Avtar were recorded u/s 164 Cr.PC by Link MM, Sh. Satish Kumar of Patiala House Courts. He identified the case properties and the accused. In his cross-examination, he stated that he was at the police station, when DD No. 34-A was told to him, by the Duty Officer. He proceeded to the spot, as soon as Duty Officer informed him about this DD No. 34-A. It took about 15 minutes, to reach at the spot at about 9.05/9.10 PM. There was no other police officer, except Ct. Suresh Kumar, when he reached at the spot. Donatien Konig, the son of the deceased, was present when he reached there. He tried to inquire from Donatien Konig who was crying that Vijay Pal had killed his mother. Donatien Konig told him that he was not present at the time of murder, in the house. He collected the call details of mobile number used by Donatien Konig and Vijay Pal. The number used by Donatien Konig, was S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 41/99 9871861030, and number of Vijay Pal was 9810059791 and examined the call details. The incident as per the FIR, took place at about 8.30 PM. He admitted that Vijay Pal made two calls at 100 number but he volunteered to state that it was only to mislead the police. As per records, the call at 8.39 PM was of the duration of 74 Seconds, and the second call at 8.40 PM was of 10 Seconds. He admitted that Vijay Pal made two calls at 100 number - first of murder and the second of quarrel at E-9/12, Vasant Vihar. He denied the suggestion that during investigation at the spot, it was found that Donatien Konig was responsible for the murder of his mother. He denied the suggestion that accused Vijay Pal met him at the spot on that day i.e. 23.09.2006. As per CDR, the location of Vijay Pal's mobile, was at Panchsheel Park area from 8.00 PM to 8.09 PM, and at 8.17 PM, the location was at Sector-3, R.K. Puram, New Delhi. As per statement of Donatien Konig, he was at home at about 5.30 PM, when his mother came alone at house and narrated the incident with Vijay Pal, to him. He stated that it did not come in his investigation that deceased-Isabelle Dessoy proceeded with accused Vijay Pal, to Panchsheel Club or that while on half S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 42/99 way to Panchsheel Club, deceased returned back to Vasant Vihar, and asked accused Vijay Pal, to deliver a gift to friend of Isabelle at Panchsheel Club. Donatien Konig was at his home, upto 6.00 pm on 23.09.2006. When they reached the spot on 23.09.2006, Donatien Konig told that the mobile number appearing on the PCR form, is that of Vijay Pal. As per his investigation, it surfaced that the knife found at the spot, was the weapon of offence and it was a kitchen knife used in house and that no other weapon was used by the assailant, in the incident. He stated that as per investigation, the incident appeared to have started in a sudden quarrel which started due to grave and sudden provocation but he voluntarily added that later on, accused decided to kill her, as disclosed by him. The deceased and the accused went to Ashoka Country Resort, in the Santro Car of the accused. It did not surface during investigation whether Vijay Pal went to Panchsheel Club or not, or in which vehicle, if he had gone. He stated that it is a matter of record that as per call details record, location of Vijay Pal's mobile phone at 8.00 PM, 8.02 PM, 8.05 PM, and 8.05.07 PM, 8.05.47 PM, 8.09 PM, was in Panchsheel Park. He admitted that at 8.28 PM, the location S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 43/99 of his mobile phone, was at Vasant Vihar, on that day. He stated that he did not go at the house of the accused in the night of 23/24.09.2006 although Addl. SHO/Insp. Ranvir Singh alongwith the staff, had gone to his house, but he was not found there. He received secret information about Vijay Pal on 24.09.2006 at about 4.00 PM, in the police station and reached Patiala House Courts at about 4.30 PM. He did not investigate as to with whom the call was made from the mobile phone of the accused, for about 520 Seconds at 8.46 PM on 23.09.2006, at phone number-9810307671 nor he investigated about the ownership of phone number - 9810307671. He denied the suggestion that it surfaced during investigation that murder had taken place before 8.00 PM on 23.09.2006. According to call details record of the mobile phone number 9871861030, the location of this phone number at 7.16 PM and 7.17 PM, was at Vasant Vihar area, on 23.09.2006. Donatien Konig met Nikko Santkin at about 6.15 PM on 23.09.2006 at Priya Cinema Complex, according to their investigation. Both of them left together in an Auto, for E-9/12, Vasant Vihar, at about 8.30 PM from Priya Complex, after receipt of information by Donatien Konig from his S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 44/99 mother. Both of them were together from 6.15 PM to 8.30 PM at Priya Complex, as per the investigation, and then, they came to E-9/12, Vasant Vihar. He stated it to be matter of record that Nikko Santkin made a call to Donatien Konig at 20:34:45 hours, and talked with him for 16 Seconds. The telephone number of Nikko Santkin, as per record, was 9899605614. He denied the suggestion that he had come to know during investigation that Donatien Konig was making repeated calls to accused Vijay Pal, from 8.00 PM onwards, in order to ensure his presence in H. No. E-9/12, Vasant Vihar or that it surfaced during investigation that Donatien Konig was fully aware of the fact that the murder had been committed prior to 8.00 PM. He also denied the suggestion that accused Vijay Pal had given him complete details of the talks, which he had made with Donatien Konig or that it surfaced during investigation that Donatien Konig had indicated to accused Vijay Pal, during telephonic conversation that his mother seemed to be in problem in the house, and on account of that, he had managed to convince accused Vijay Pal, to go to his house. He denied the suggestion that large amount of blood was collected from the spot, and was planted S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 45/99 on Santro Car and the clothes or that chance prints on the glass piece, were forcibly obtained from Vijay Pal, to create a false evidence. Accused had disclosed that he had kept a spare pair of clothes in his car, which he had changed after concealing the blood- stained clothes, which he was wearing at the time of the offence.
7. The statement of the accused was recorded u/s 313 Cr PC where he denied all the circumstances. He however stated that he had given the call to PCR. He stated that when he reached the spot Isabelle had died. He stated that lot of blood was lifted by the IO from the spot and it was planted by him later on many articles. His finger prints were obtained later on forcibly for fabricating evidence. He denied his arrest on 24.9.2006 from front of UPSC. He rather stated that on the morning of 24.9.2006 he was called in DCP office and was detained and subsequently he was arrested. Regarding recovery of clothes at his instance, he stated that he never wore T-shirt and those clothes did not belong to him and they were planted upon him. He admitted that he and deceased had gone to Ashoka Country Resort where they spent many hours together S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 46/99 and enjoyed, swimming, snacks and drinks and that she was happy on their return to Vasant Vihar residence. Evidence of chance prints was stated to be fabricated. In reply to the question if he wanted to state anything else, he replied that he is innocent and has been falsely implicated in the present case by the police. He stated that he knew Isabelle two year prior to the incident who appointed him as her driver so as to enable him to have easy access to her in her Office but actually he was friend of the deceased. The son of the deceased disliked him due to his relationship with his mother and he used to ask him to leave her mother. On 23.9.2006 at around 12.00 noon, he and deceased proceeded for swimming to Ashok Country Resort, Kapashera, Delhi in the deceased's official Tata Sumo Car bearing No. 8 CD 5 and came back to E 9/12, Vasant Vihar at around 4.40 PM. Isabelle drove the car on return. Thereafter deceased went to the room of her son and had heated talks with him. Thereafter she came back and asked the accused to come back by 6.00 PM as she had to go to Panchsheel club in a get together. He went to his home, got ready and reached back at around 5:45 PM. The accused then stated that the son of the deceased told him to be S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 47/99 ready to bear the consequences of his relationship and then he left the house angrily. Thereafter, the deceased asked him to take her to INA market, as she had to do some purchases, and she did her shopping. There, he also met one friend of his. After purchasing they returned to Vasant Vihar, as she had to get ready for the get together. At around 7.00 PM, they left for Panchsheel Club. On their way to Panchsheel club, the deceased received a call on her phone, after which she asked him to drop her back to Vasant Vihar. After dropping her near the house he left for Panchsheel Park with instruction to hand over a gift to Mr. John, a foreigner and her friend. At around 8 PM, he had reached Panchsheel Club and handed over the gift to Mr. John. When he was at Panchsheel club, there was a missed call from the mobile phone of the son of the deceased. Accused called him back wherein Donatien Konig asked him to immediately reach his home and told him that his mother appears to be under panic and sounded to be in some deep trouble. Again he received a call from Donatien Konig, wherein he confirmed from him if he had already started for his house. The accused then immediately called the deceased on her mobile two or S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 48/99 three times but there was no effective response. He again received a call from the mobile phone of Donatien Konig wherein enquired about location of the accused. He stated that he (accused) was unable to understand his anxiety as to why he is strongly insisting and forcing him to go his home quickly as sometime before he had dropped her near her house and there was no problem. While on his way to the house of the deceased accused again made calls to her, but there was no effective response. It surprised him and he got worried about her. He again called Donatien Konig and informed him that there is no effective response from his mother side. He enquired from him as to what details he had. Donatien Konig vehemently asked him to reach home and meet his mother at any cost. He (accused) reached at the house of the deceased and repeatedly rang the door bell but there was no response. The door had an automatic lock which was locked from inside. He broke the glass door with the help of a stone/brick lying nearby. While breaking the door he received an injury on his hand. When he went inside the house he found the deceased lying in the pool of blood with numerous injuries. He hurriedly called Donatien Konig from S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 49/99 the landline and informed him about the situation and asked him to arrange ambulance, and to inform police and to reach home immediately. He again received a call from Donatien Konig and he started asking unnecessary details from him. He (accused) informed Donatien about the situation and told him that he (accused) was trying to handle the situation over there. The accused asked Donatien to reach home immediately and not to waste time in talking over phone. Accused again asked him to arrange the ambulance and to inform the police. When Donatien did not come, accused again contacted him to come immediately and to make arrangements but he did not respond properly. Accused then made call to the police on 100 number and told them about the murder in the house. Accused stated that he then tried to take deceased to the hospital by bringing his Santro car in the compound but in the meantime ambulance arrived at the spot and removed Isabelle to the hospital. Many people have gathered at the spot. While he was trying to provide first aid/comfort to Isabella, his hand and clothes were stained with some blood of the deceased. The accused received a call from Donatien Konig, who asked him as to what was S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 50/99 the situation on or around the spot and accused again told him to reach the spot as early as possible. In the meantime, accused also informed some of his friends and relatives. He narrated the incident to them and they said that they are coming to Vasant Vihar. After informing the police accused received another call from Donatien Konig at which the accused showed his anguish for Donatien's not reaching the house. After sometime Donatien Konig along with few persons and the police arrived there. The police made inquires from him and he narrated the entire sequence as well as his entire telephonic conversation with Donatien Konig. Police took his mobile in their possession, switched it off and handed over to the constable. Police confronted Donatien Konig with the conversation he had with the accused on the phone. Donatien Konig admitted the conversation to the police. The police kept on interrogating Donatien Konig as well as the accused for a very long time and they were satisfied with the explanation given by the accused. At around at mid night accused was allowed to go home with a direction to report in the police station in the morning. Next day in the morning of 24.09.2006, accused went to the police station and was produced S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 51/99 before DCP, where, inquiries were also made by DCP, from him. He again explained the entire sequence and conversation with Donatien Konig to the DCP. He checked up the details from his mobile phone. The DCP also suspected the involvement of Donatien Konig in the offence and indicated during the conversation that the unusual repeated telephonic conversation of Donatien Konig was a part of the game plan to involve the accused in the offence and to save himself. The DCP had assured that the case will not be made out against him, and that the accused has been detained only for the purpose of investigation. He stated that during the enquiry on 23.09.2006/24.09.2006 police also seized his clothes but the clothes which were produced during trial did not belong to him nor he was wearing those clothes at the time of incident. He stated that he was tortured in the police station and was made to sign on many written and blank papers which were converted into disclosure statement and other documents at the latter stage. He stated that police forcibly obtained his finger prints on the glass piece and he was made to sign on various blank documents.
S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 52/99
8. He produced seven defence witnesses and their depositions are as under:
8.1 DW-1 Vishal Gaurav is the Nodal Officer of Bharti Airtel, who produced the Cell Tower Location Chart pertaining to the year 2006 and they are proved as Ex.DW1/A. 8.2 DW-2 Arun Patel is a road-side florist at INA Market. He stated that on 23.09.2006 at about 6:00 p.m., Vijay Pal and Issabelle came to his shop to purchase bouquet. Isabelle selected flowers and instructed him to prepare a bouquet and then they went inside INA Market. After about 20-25 minutes, they both came out after purchasing something, collected bouquet and went back. He also stated that on that day, Vijay Pal was nicely dressed. In his cross-
examination, he could not tell the colour of his own pant and shirt which he wore on 23.09.2006.
8.3 DW-3 Laxmi Devi is a domestic servant, who stated that she worked as domestic servant with Isabelle at E-9/12, Vasant Vihar, till 2005. Thereafter, she left that job and took up another job in D- S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 53/99 Block. On 23.09.2006 at about 9:00 p.m, when she was crossing E-9/12, she found Vijay Pal standing outside E-9/12 at about 9:00 p.m. In her cross-examination, she stated that Vijay Pal was working as Driver with Isabelle from 2003 onwards. She could not tell the address where she took up the job after leaving her job at E-9/12 nor could she tell the name of her employer. He also stated that he did not inform police about visit of accused with the deceased to his shop.
8.4 DW-4 Radhey Shyam is another shop-keeper of INA Market. He stated that on 23.09.2006 at about 6:30-7:00 p.m accused Vijay Pal and a foreigner lady Aliza Bel came to his shop. In his cross-examination, he stated that on 23.09.2006, 2-3 foreigners might have come to his shop but he could not tell their names nor he could tell the total amount of sale done by him in his shop on 23.09.2006. He also stated that after coming to know about the incident on 24.09.2006, he did not make any complaint to police that Vijay Pal and the said lady had come to his shop on 23.09.2006. 8.5 DW-5 Dharmendra Kumar is Clerk of Transport Authority, S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 54/99 who stated that as per records, the Motorcycle No. DL 7SS 2917 was registered in the name of Nitesh Sharma S/o A.K. Sharma R/o 16/4, Railway Quarters, Chanakyapuri, New Delhi and he proved certified copy of the said record as Ex. DW5/A. 8.6 DW-6 Mehrajuddin is a neighbour of the accused Vijay Pal. He stated that on 23.09.2006, he saw Vijay Pal coming at late night. He also saw Vijay Pal coming at 8:00 a.m on 24.09.2006. He asked Vijay Pal as to why he had come late on the previous night, at which Vijay Pal told that on 23.09.2006, his friend was murdered and he has been called by the police. In his cross-examination, he stated that he saw police near his house on the night of 23.09.2006 but police did not talk with him.
8.7 DW-7 Narender is Jija of accused Vijay Pal. He stated that on the night of 23/24.09.2006 at about 12:00 midnight, police officals came to his house inquiring about Vijay Pal. On 24.09.2006, in the morning, he received a phone call from Vijay Pal asking him to reach at DCP Office, R.K. Puram. Witness alongwith Advocate reached DCP Office and met Vijay Pal there. In his cross- S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 55/99 examination, he stated that on 24.09.2006, in the morning, Vijay Pal reached the office of DCP in an Esteem car alongwith Advocate Sh. Rajpal Kasana.
9. Ld. Counsel for the accused argued that it is well settled principle of law that the prosecution has to stand on its own legs and has to be prove its case beyond all reasonable doubts. It was argued that the accused carries the presumption of innocence till he is proved guilty and to reach that finding, the prosecution has to travel and cover the distance between 'accused might have committed' to 'accused must have committed'. It has been stated that the case of the prosecution is based on circumstantial evidence and the law is well settled that all links in the chain must be proved by the prosecution beyond reasonable doubt. It was argued that the accused had intimate relations with the deceased which is clear from the fact that both of them had done foreign trips together and there was no reason for the accused to kill the deceased. It was argued that the prosecution has failed to prove as to what was the motive for the accused to kill the deceased. Ld. Counsel argued that S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 56/99 rather it was the Donatien - son of the deceased who had reason and motive to kill his mother as he never liked association of the accused with his mother. It was argued that at the time when the deceased was killed, the accused was not even at home as he had been sent by the deceased to Panchsheel Club to hand over a gift to Mr. John, which the accused did and when he was at Panchsheel Club, son of the deceased frantically called him on telephone and insisted him to come at the house of the deceased at Vasant Vihar and when the accused reached Vasant Vihar, the glass door was locked and hence the accused broke open the glass door with the help of a stone and in the process he sustained injury on his hand. He went inside and found the deceased to be lying in a pool of blood. It was argued that innocence of the accused is writ large on the face of it as it was the accused himself who informed the police in the first instance. Reliance has been placed on the deposition of defence witnesses to prove the plea of alibi of the accused. It was argued that although the prosecution is duty bound to prove its case beyond all reasonable doubts, but the accused is required to prove his defence only by the standard of 'preponderance of probability'. S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 57/99 It was stated that police falsely implicated the accused in this case at the instance of embassy officials. It is stated that the arrest of the accused and the recovery of clothes thereafter is full of doubts as no independent public person was associated in these investigations by police. It was stated that actually the accused was very much at the spot after informing the police and met them and he had surrendered himself and was not arrested in the manner claimed by prosecution. It was argued that prosecution withheld the phone calls of the accused which cast serious doubts on the prosecution story. It was further argued that there are various discrepancies in the depositions of witnesses, which are self contradictory and hence fatal to the prosecution case. It was argued that no proper investigation was done by police and action of the police was deliberate with the sole objective of saving Donatien and falsely implicating the accused Vijay Pal. On the strength of these arguments, it was argued that prosecution failed to prove its case beyond reasonable doubt and the benefit of doubt has to go to the accused and hence acquittal has been prayed for the accused. Additional Memorandum Arguments under Section 314 Cr.P.C were S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 58/99 filed on behalf of the accused.
10. Ld. Addl. PP on the other hand argued that the prosecution has proved its case beyond reasonable doubts. He has stated that accused was working as a Driver with the deceased and he was with the deceased on the date of the incident as they had gone to Ashoka Country Resort. While coming back from there, accused drove the car very fast and on this, an altercation took place between them and the deceased got down from the car and came to her house in a Taxi at about 5:00 p.m. Ld. Addl. PP has further argued that at 8:41 p.m a call of murder was received (Ex.PW13/A). However, the caller again called and told about the 'quarrel' and hence the word 'murder' was changed to 'quarrel'. It is stated that this message was transmitted at 8:42 p.m and at 8:50 p.m, PCR van reached at the spot. At 8:54 p.m, report was received from the PCR van and an Ambulance was called. At 9:05 p.m, CATS Ambulance took the injured lady to hospital. At 9:33 p.m., it was recorded that driver of that lady had quarreled with her. It is stated that on the statement of Donatien Konig, case was registered. Exhibits were lifted from the S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 59/99 spot and Crime Team also lifted palm-prints and fingerprints from the spot. It is stated that although the initial call was made by the accused but it was only to mislead the police. He stated that from the motorcycle, which was found at the spot, address of the accused was found. On 24.09.2006 at 4:00 p.m, a secret information was received that accused would be going to Patiala House Courts to meet his Advocate. This secret information was received vide DD No. 15A and the IO with staff went to Patiala House Courts and spotted his car there. When the accused left Patiala House Courts in his Santro Car, he was followed by the police and in front of UPSC, he was intercepted. Thereafter, he was arrested. In the Police Station, he made disclosure, in which he stated that at about 6 pm he went to her house but she asked him to go out. When he asked for his salary, she refused to pay the same and disengaged him. He re-entered her house at 8:25 p.m after breaking the glass door with a stone. He was abused by the deceased. In anger, he brought knife from the kitchen and gave repeated stabs to her. The deceased at this time made a telephone call to her son on his mobile phone from the land line telephone. He then ran away from there before her son S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 60/99 could reach there and in the hurry, he slipped on broken glass pieces and hurt his hand. Coming out of the house, he fled away in his santro car and on the way, he concealed the clothes worn by him and he wore fresh pair of clothes which were in his car. He stated that he could get recovered his clothes which he had concealed in bushes near Basant Gaon. The clothes were recovered at his instance. He stated that while running away from her house, he slipped on the broken glass pieces in the drawing room and sustained injuries on his hand and these injuries were corroborated in his medical examination, which was done on the night of 25.09.2006 at 1:30 a.m. He stated that apart from the statement of Donatien Konig, who was examined as PW-4, depositions of PW-5 and PW-6 are also material as the PW-4 heard cries of his mother and voice of the accused when his mother made a telephone call to him. PW-5 and PW-6 have deposed to have seen the accused going away from the house of the deceased at about 8:30 p.m in a Santro Car. It has been stated that as many as 26 stab wounds were given by the accused to the deceased with a knife and the intensity was so much that even tip of the knife broke inside the body of the S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 61/99 deceased and the same was recovered from her body at the time of her postmortem. The broken knife was recovered from the spot and the tip of the knife was recovered from the body of the deceased and both of them matched. After murdering the deceased, accused left the spot in his Santro Car and at the time of his arrest, the said car was seized and in the scientific examination of the car, blood of the deceased was found at various places in the car and on the remote and key of the said car. The blood of the deceased was also found on the clothes which were recovered at the instance of the accused from Basant Gaon. The palm-prints also corroborate the prosecution story as the palm prints of the accused matched with the palm prints lifted from the spot. The call detail records also prove the location of the accused. It is stated that defence witnesses, who have been examined by the accused, are not reliable. It is stated that the prosecution has been able to prove its case beyond all reasonable doubts and the accused may be convicted for the offence under Section 302 IPC.
11. I have heard both the sides and have perused the records of S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 62/99 the case. Although there is no eye witness to the offence but son of the deceased claims to have heard the cries of his mother and voice of the accused on mobile. It is thus not a case, which is totally based on circumstantial evidence. The evidence of the son of the deceased is very material. Apart from it, evidence of PW-5, PW-6, call detail records and result of FSL have been relied upon by the prosecution.
12. The dead body of the deceased Isabelle was identified by PW-1 Jean Louis Van Belle vide Ex. PW-1/A; and by her own son Donatien in mortuary of Safdarjung Enclave on 24.9.2006 vide Ex. PW 4/B. Thereafter, the dead body was handed over to Jean Louis Van Balle vide EX PW-31/C.
13. PW-1 Jean Louis Van Belle, PW-2 Nikko Santkin, PW-3 Eric Santkin, PW-4 Donatien Konig, PW-5 Ram Avtaar, PW-6 Gaya Prasad Mishra are the independent witnesses who are very material in this case. PW-22 A.K. Srivastava and PW 26 Parshu Ram both from FSL are also material witnesses. The nodal officers of Airtel namelyPW-18 Amarjit and PW-19 R.K. Singh proved call detail S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 63/99 records of the phones used in this case.
14. Case of the prosecution is that on 23.9.2006 the accused and the deceased went together to Ashoka Country Resort for swimming at about 12 noon in the Santro car of the accused and when they were returning from there to Vasant Vihar, accused drove very fast and behaved in a crazy manner which was objected to by the deceased and thereafter deceased got down from the Santro car and reached her house at Vasant Vihar in a taxi. Accused reached her house but the deceased refused to talk with him and told him that she has disengaged him. He pestered her but she did not relent. He again went to her house at about 8.25 pm but since its glass door was locked, he broke it open with a stone, and had an altercation with her and she abused him. The accused got furious over it, went to kitchen, brought a kitchen knife and he gave multiple stabs to her with kitchen knife. When the victim was being given stab wounds, she also telephoned her son Donatien from landline telephone on his mobile and told him that accused was giving knife stabs to her and asked him to come home soon. Donatien also heard voice of the S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 64/99 accused on phone. While escaping, accused slipped inside house and fell on broken glass pieces and got his palm injured. He went away from there in his Santro car and near Basant Gaon, he threw his clothes in bushes and changed to fresh pair of clothes which he kept in his car.
15. Going of the accused with the deceased on 23.9.2006 at about 12 noon to Ashoka Country Resort and remaining there till about 4.30 pm was proved by PW-4 Donatien Konig - who is son of the deceased and PW-10 Jagdish Yadav- who is Swimming pool Attendant of Ashoka Country Resort, Kapashera. PW-10 also gave documentary proof of visit of the accused and the deceased to the Resort and proved Receipt, Arrival Departure Register etc. as Ex. PW-10/1, PW-10/2 and PW-10/3. Even otherwise, the accused has not denied his visit with the deceased to Ashoka Country Resort, Kapashera. Hence, this part of the prosecution version that the accused and deceased had gone to Ashoka Country Resort, Kapashera on 23.9.2006 at about 12 noon and remained there till about 4.30 pm, stand proved.
S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 65/99
16. PW-4 Donatien Konig deposed that on 23.9.2006 his mother came back at about 5 pm he however stated that he does not remember what conversation was held between him and his mother. A leading question was put to him by the Prosecution at which he stated that his mother came back alone and had told him that she had an altercation with driver Vijay Pal as he was driving his Santro Car at a high speed and was behaving in a very crazy manner and that she got down from the car and came back in a taxi. He stated in his examination in chief as well as in cross examination that he left for Priya complex alone at about 6 pm and met his friend Nico Santkin there. He stated that at about 8.15 pm he received a phone call on his mobile phone 9871861030 of his mother from landline phone 41661088 and she was shouting, screaming for help and told her that Vijay Pal had injured her and he also recognized voice of Vijay Pal that he was shouting at his mother and then the call was disconnected. He then rushed back to home with his friend Nico Santkin in rickshaw and reached home at about 8.30 pm. When he reached back neither Vijay Pal nor his Santro car was there. S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 66/99
17. Presence of Donatien Konig between 6 pm to 8.30 pm at Priya Complex was confirmed by PW-2 Nico Santkin. He stated that on 23.9.2006 at about 6.15 pm he met Donatien Konig at Priya Cinema Complex. He stated that at about 8.30 pm Donatien Konig received a telephone call of his mother on his mobile phone that her driver Vijay Pal was stabbing her and he was told about this distress call of his mother by Donatien Konig. Then Nico and Donatien reached Donatien's house and found Donatien's mother lying in a pool of blood. He telephoned his father Eric Santkin from his mobile number 98996 05614 on his father's mobile number 98105 11867 about it and immediately thereafter his father reached there. The going of Donatien from the spot on 23.9.2006 at about 6 pm to Priya Complex, receiving call of his mother from landline at about 8.15 pm and his return to home thereafter is thus proved.
18. Eric Santkin, father of Nico Santkin deposed as PW-3. He stated that on 23.9.2006 at about 8.45 pm, he received a telephone call on his mobile no. 98105 11867 from his son Nico's mobile S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 67/99 number 98996 05614 that Isabelle, mother of his friend Donatien, was lying in a pool of blood in her house E-9/12. He informed from his above mentioned mobile about it to his friend Jean Louis on his mobile number 98186 86270 thereafter. He reached Isabelle's house and found her lying in pool of blood. Then ambulance reached and then Jean Louis also reached there and they took Isabelle in ambulance to hospital.
19. Jean Louis deposed as PW-1 and stated that on 23.9.2006 at about 8.45 pm he received telephone call of Eric Santkin who informed him that Isabelle was lying in a pool of blood. He rushed to her house, where Eric and ambulance were already there. Both these witnesses thus confirm and corroborate their arrival at the spot and about taking the injured in ambulance to hospital.
20. PW-18 Amarjit Singh, Nodal Officer Airtel proved the call details record of landline telephone number 41661088 and according to the records Ex. PW-18/B the said telephone was installed at E-9/12 Ground Floor, Vasant Vihar and according to the call detail records, on 23.9.2006 at 8.28 pm an outgoing call was S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 68/99 made from this number to mobile number 98718 61030. PW-19 R.K. Singh is another nodal officer of Airtel proved from Ex. PW-19/B that mobile number 9871861030 was in the name of Isabelle. The accused had admitted in reply to Question 46 in his examination u/s 313 Cr PC that the said mobile phone was used by Donatien. From the call detail records of mobile number 98718 61030 Ex. PW-19/D that on 23.9.2006 at 8.27 pm an incoming call was received on this number from landline phone 4166 1088. Receipt of call is thus proved.
21. All these evidences when read together show on 23.9.2006 Donatien Konig, son of the deceased was with his friend Nico at Priya cinema complex from 6 pm to 8.30 pm and when Donatien was at Priya Cinema, he received a call of his mother on his mobile phone when she informed him that she was being injured by Vijay Pal and he also heard voice of Vijay Pal on telephone and when both of them reached at Donatien's house, his mother was found lying in a pool of blood.
22. PW-6 Gaya Prasad Mishra is an independent public witness S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 69/99 in this case. He is a natural witness and his presence at the spot is natural as he was working as watchman in adjacent Kothi No. E-9/11 while deceased Isabelle lived in E-9/12 and hence cannot be doubted. He stated that on 23.9.2006 he was working as Security Guard in E-9/11. On that day, at about 8.30 pm he heard voice of glass breaking coming out of E-9/12. Accused Vijay Pal came out of the said Kothi, sat in his Santro Car and went away driving that Santro car. After sometime, son of Isabel came from outside and went inside the Kothi. After a few minutes, he came out of the Kothi and started crying loudly and on being asked, he stated that his mother has been killed by Vijay Pal. He identified the accused in the Court. Similarly, PW-5 Ram Avtaar is another watchman who was working in E-9/4. This kothi was opposite E-9/12. Locations of E-9/12, E-9/11 and E-9/4 Vasant Vihar were proved by PW-17 SI Madan Pal vide Ex. PW-17/A. PW-5 Ram Avtar stated that on 23.9.2006 at about 8.30 pm he saw Vijay Pal came out of the kothi, sat in the car and went away towards DPS School. Although this witness was cross examined by the ld. Prosecutor on certain points, but he categorically stated to have seen the accused coming S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 70/99 out, sitting in car and going away and this part of his deposition is trustworthy as it is corroborated by PW-6 as well. In this regard, in Govindaraju vs. State 2012 (4) SCC 722 it was held as under:
It is also not always necessary that wherever the witness turned hostile, the prosecution case must fail. Firstly, the part of the statement of such hostile witnesses that supports the case of the prosecution can always be taken into consideration. Secondly, where the sole witness is an eyewitness who can give a graphic account of the events which he had witnessed, with some precision cogently and if such a statement is corroborated by other evidence, documentary or otherwise, then such statement in face of the hostile witness can still be a ground for holding the accused guilty of the crime that was committed. The court has to act with greater caution and accept such evidence with greater degree of care in order to ensure that justice alone is done. The evidence so considered should unequivocally point towards the guilt of the accused. No suggestion was given to these witnesses that they did not see Vijay Pal coming out of E-9/12 on that day at 8.30 pm when he sat in the Santro car and went away.
23. The statements of PW-5 and PW-6, namely, Ram Avtar and Gaya Prashad Mishra were also recorded under Section 164 Cr.P.C S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 71/99 and the same were proved by PW-29 Sh. Satish Kumar - Ld. Metropolitan Magistrate. In the said statements recorded under Section 164 Cr.P.C also, the witnesses had stated that they heard the noise of breaking of glass in E-9/12 at about 8:30 p.m and that Vijay Pal went away in his Santro Car towards DPS School and after five minutes, son of Isabelle came from outside and went inside and, thereafter again came out and started to cry. Statements under Section 164 Cr.P.C of these witnesses were proved as Ex. PW29/C (Ram Avtar) and PW-29/F (Gaya Prashad) respectively.
24. PW 22 A.K. Srivastava and PW-26 Parshu Ram of FSL are two witnesses of scientific evidence. PW-22 A.K. Srivastava stated that he lifted blood stains from seat cover, right gate handle, steering, right gate inner side and remote key of Santro car of the accused. Blood of Group 'B' was found on all these items. He also examined the pullandas received from the hospital which contained blood of the deceased, clothes of the deceased and knife handle and tip and on all these also, blood of Group 'B' was found as per Ex. PW 22/C and 22/D. It shows that the blood group of the blood of S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 72/99 the deceased was 'B'. PW-24 Dr. Sugandha had proved the MLC of the accused as Ex. PW-24/A according to which his blood sample was taken for examination. Vide Ex. PW 31/J his blood sample was seized. PW-22 A.K. Srivastava of FSL also examined blood group of the blood of the accused and found it to be of 'O' Group as per Ex. PW-22/F. Since the blood Group of the accused was 'O' and the blood of the deceased was of Group 'B' and the blood found on clothes of the accused and his car was also of Group 'B', this is a circumstance against the accused.
25. PW-12 ASI Dharamvir Singh is the Proficient, who deposed that he visited the spot alongwith the Crime Team and lifted the chance prints from wooden chokhat of the drawing room; wooden chokhat of kitchen; kitchen door; broken glass pieces and room door vide Ex. PW-12/A. Vide Ex. PW-32/J a request was made for taking sample finger and palm prints of the accused. PW-16 HC Sri Om took finger prints and palm prints of the accused. PW-25 SI Avdesh, Fingerprints Expert matched the said fingerprints and found that the palm prints lifted from the spot matched with the S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 73/99 palm prints of accused Vijay Pal and he proved his report as Ex. PW 25/A. Matching of palm prints lifted from the spot, with those of the accused is another circumstance against the accused.
26. A broken knife was seized from the spot by PW-32 Insp. Jai Kishan vide seizure memo Ex. PW-31/B. In the postmortem, a broken tip of a knife was recovered from the body of the deceased by Dr. Alaxender vide Ex. PW-31A/A and the same was seized vide seizure memo Ex. PW 31/D. They were sent to FSL for examination. PW-26 Parshu Ram Singh proved his FSL result as Ex. PW26/A and according to the result, the tip of knife recovered from the body of the deceased, was part of the knife which was seized from the spot.
27. PW-31A Dr. Alexender F. Khakha proved the postmortem report of the deceased as Ex. PW-31A/A. A request was made to him vide Ex. PW 32/H for giving subsequent opinion. He proved his subsequent opinion as Ex. PW-31A/B that the injuries found on the body of the deceased were possible to be caused with the knife seized from the spot and except injury No. 27 all were possible to S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 74/99 be caused by the knife produced before him for examination.
28. PW-32 Inspector Jai Kishan proved the receipt of secret information about possibility of location of accused Vijay Pal at Patiala House Courts and he recorded the secret information vide DD No. 15A on 24.09.2006 at 4:00 p.m, which was proved by him as Ex. PW32/G. Thereafter, the car of the accused was sighted outside near Gate No. 2 of the Patiala House Courts and when a person left in that car, it was followed by police and was intercepted in front of UPSC and thereafter inquires were made from the accused and he was arrested. His arrest memo was proved as Ex. PW31/E. The accused then made a disclosure, which was proved as Ex. PW30/A. In pursuance to the disclosure, the accused got recovered his clothes, which he was wearing at the time of the offence, and the clothes were recovered from the bushes near Vasant Gaon and was seized vide seizure memo Ex. PW30/B. The clothes at the time of the recovery were having stains. They were sent to FSL for examination and vide Ex. PW 22/C, the stains were found to be blood and vide Ex. PW 22/D, the said blood was found to be S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 75/99 of the group 'B' which was the blood group of the deceased as per the same report Ex. PW-22/D.
29. After arrest, the accused was sent to hospital for his medical examination where he was examined on 25.09.2006 at 1:30 a.m. His MLC was proved by PW-20 Dr. Sugandha as Ex. PW20/A and the accused was found to be having injury on his right hand thumb and forefinger and he was given sutures on his hand. His blood sample was taken vide Ex. PW-24/A and on examination, the accused was found to be having blood of Group 'O' vide Ex. PW-22/F.
30. The presence of the accused in the house of the deceased is confirmed by the depositions of PW-4 Donatien Konig, PW-5 Ram Avtar and PW-6 Gaya Prashad. Same is corroborated from the call detail records of the mobile phone of the accused, which was proved by PW-19 Sh. R.K. Singh, Nodal Officer of Airtel vide Ex. PW-19/E. None of these circumstances raises an iota of doubt that the accused was not present at the spot at the time of the offence or that he had not murdered Isabelle on 23.9.2006 at about 8.30 pm at S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 76/99 E-9/12, Vasant Vihar, New Delhi.
31. The accused has very cleverly tried to project a picture that he was not present at the spot at the time when the murder took place. Let us examine the defence story as to how much reliable and probable that is.
31.1 Accused has not disputed that he went to Ashoka Country Resort with the deceased and came back from there at about 4:40 p.m on 23.09.2006. In his examination under Section 313 Cr.P.C, he stated that when he reached at the house of the deceased, Donatien Konig yelled at him and the deceased and her son had heated talks in another room. PW-4 Donatien Konig has not stated any such things in his examination-in-chief nor any such question was put to him in his cross-examination nor any such suggestion was given to him at the time of his cross-examination. The story as projected in this regard is doubtful.
31.2 The accused then claimed that the deceased asked him to go and come back by 6:00 p.m as she had to go to Panchsheel Club, at S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 77/99 which he went to his room, got ready and came back at 5:45 p.m. Again, there is no corroboration to this claim, more so when no such question or suggestion was put to PW-4 Donatien Konig in this regard at the time of his cross-examination.
31.3 The accused then claimed that Donatien Konig was present in the house when the accused came back at 5:45 p.m and he shouted at the accused and at his mother and threatened the accused to be ready to bear the consequences of his relationship and then he left the house angrily. A question was asked from Donatien Konig in his cross examination that he did not like relationship of the accused with his mother, to which, he replied that his mother was friendly with Vijay Pal but it was nothing more than that and he did not care for his mother's relationship with Vijay Pal and she went out with Vijay Pal out of country or for party as they were mere friends and this was her personal matter. No such suggestion was given that any threat was given by him to the accused when he left the house at 5:45 p.m on 23.09.2006. On the contrary, PW-4 Donatien Konig had stated that he did not see Vijay Pal after his mother came back S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 78/99 from Ashoka Country Resort at about 5:00 p.m on that day. As such the story projected by the accused appears to be an afterthought. 31.4 The accused then claimed that he went alongwith the deceased to INA Market where they shopped and thereafter they returned back to Vasant Vihar. In support of this claim, two witnesses were examined by the accused in his defence, namely, DW-2 Arun Patel and DW-4 Radhey Shyam. DW-2 Arun Patel is a Florist, who stated that Vijay Pal alongwith a foreigner lady came to his shop at about 6:00 p.m on 23.9.2006 and Vijay Pal was wearing good clothes at that time and they ordered him to prepare a bouquet. They came back after about 20-25 minutes. The deposition of this witness does not appear to be trustworthy for two reasons - one that he was not able to tell as to what clothes he himself was wearing on that day, although, he very emphatically stated that Vijay Pal was wearing good clothes on that day. It is unconceivable that why a witness would remember as to whether somebody was wearing good clothes on a particular day when he is not able to tell his own clothes which he wore on that day. Secondly, if that is the position S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 79/99 as claimed by him that he saw accused and the deceased together, the witness ought to have told about this to police immediately thereafter on 24 or 25.9.2006 so as to help the police to reach a fair conclusion and that having not been done, raises serious doubt about the veracity of the claims made by this witness. So far as the deposition of DW-4 Radhey Shyam is concerned, he stated that Vijay Pal alongwith Isabelle came to his shop on 23.09.2006 at about 6:30/7:00 p.m and talked with him for 5 minutes and then they left. Deposition of this witness also is not trustworthy as it is unnatural for a witness to remember the name of a foreigner when he was unable to answer/tell names of other foreigners when asked so in cross examination, who visited his shop on that day. He claimed that he came to know next day that Vijay Pal has been implicated in this case but he too does not approach the police to tell about the visit of accused with Isabelle on 23.09.2006. That apart, the call detail records of accused Vijay Pal are silent that between 6:00-7:00 p.m., the accused ever visited INA Market. The distance between Vasant Vihar and INA could be approximately 10 k.ms which would require more than an hour in to and fro car S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 80/99 journey, keeping in view the peak hours in which the journey was claimed to have been performed, coupled with the deposition of DW-2 that after giving the order for preparing the bouquet, accused and Isabelle came back after 20-25 minutes which leaves practically maximum 35 minutes to go from Vasant Vihar to INA Market and to come back. It appears to be quite impractical that between 6 to 7 pm the accused visited INA from Vasant Vihar and also remained at INA for at least 20-25 minutes in between.
31.5 The accused then claimed that he alongwith Isabelle left for Panchsheel Club at about 7:00 p.m and when they were going to Panchsheel, Isabelle received a call on her mobile and she asked Vijay Pal to drop her back at Vasant Vihar. He dropped her at Vasant Vihar and went alone to Panchsheel Club and handed over a gift to Mr. John at 8:00 p.m and when he was at Panchsheel Club itself, he had a missed call of Donatien Konig on his phone and, therefore, he telephoned him back, who asked him to come back as his mother was under panic. Again, the story is unsubstantiated and is nothing but an afterthought. No such Mr. John has been S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 81/99 examined by the defence to prove the claim that accused Vijay Pal had gone on 23.09.2006 and handed over a gift to him at 8:00 p.m in Panchsheel Club. Not even a single witness from Panchsheel Club has been examined by the accused in his defence to say that accused had visited Panchsheel Club on 23.09.2006 at about 8:00 p.m, as claimed by him. Even the call detail records Ex. PW-19/E do not support this claim of the accused. At 7:43 p.m, accused made an outgoing call to Mobile No. 9871760807 for 44 seconds and the location of the accused at the time of starting of the call and at the time of termination of the call was static and it was at Sector-3, R.K. Puram. In other words, the accused was not on the move at the time of this call and was stationary at that time. He then made an outgoing call at 8:00 p.m to Donatien Konig for 67 seconds and at the time when he started the call, he was at Swami Nagar and when he finished that call, he was at Panchsheel Park. The claim of the applicant in his examination under Section 313 Cr.P.C is that after handing over the gift to Mr. John at 8:00 p.m at Panchsheel Club and when the accused was still at Panchsheel Club itself, he saw missed call of Donatien Konig and he called Donatien S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 82/99 Konig back. As noted above, the call was started when the accused was at Swami Nagar and the call terminated when he was at Panchsheel Park. It shows that the accused was not at Panchsheel Club when he made the call to the son of the deceased and rather was on the move. The claim of the accused contrary to it is nothing but false.
31.6 The accused then stated that he then received a telephone call of Donatien Konig, who confirmed from him, if he had started or not. The call detail records shows that a call was received by the accused from Donatien Konig at 8:02 p.m for 42 seconds and at the time when the call started, the accused was at Panchsheel Park but when the call was terminated, he was at Savitri Nagar. The call detail records show that accused was on the move and was not stationary at that time.
31.7 The accused then claimed that he then called deceased 2-3 times but there was no effective response. He then again received a call of Donatien Konig, who inquired about his location. The call S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 83/99 detail records do not show any such calls having been received by the accused from the mobile of Donatien Konig (the only call received by the accused from Donatien after 8.02 pm was at 8.28 pm when the accused was at Vasant Vihar). On the contrary, an outgoing call was made by the accused to Donatien Konig at 8:11 p.m for 83 seconds and at the time of starting the call, accused was at Safdarjung Development Area and at the time of termination of the call, he was at Jia Sarai. The claim of the accused to have received a call of the son of the deceased is thus false. 31.8 The accused further claimed that on his way home, he again made calls to the deceased but there was no effective response. Then he called Donatien who vehementally asked him to reach home and meet his mother at any cost. Call details record show one outgoing call by accused to Donatien at 8.11 pm for 83 seconds and at the time of starting the call, accused was at Safdarjung Development Area and at the time of termination of the call, he was at Jia Sarai. However, much reliance cannot be placed on the contents of the calls as no such suggestion was put by the accused S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 84/99 to Donatien Konig at the time of his cross examination, which shows that the explanation now given in examination u/s 313 Cr PC is only a covering up act. Only to explain the calls which are recorded in the Call Detail Record, the story has been developed. 31.9 The accused then claimed that he reached the house of the deceased and repeatedly rang the door bell but there was no response. Cleverly, no time has been mentioned by the accused as to when he reached house of the deceased. He then broke the glass door with the help of a stone/brick lying nearby and received injury on his hand. This is an entirely new story built up by the accused. No such suggestion was given by the accused to Donatien in his cross examination. On the contrary, in the cross examination of PW 32, a suggestion was given to him that the accused had broken the glass panes of the drawing room on the instructions of Donatien. There are contradictions in the stands of the accused which show that the defence is nothing but sham.
31.10 Accused further claimed that after entering the house, he found the deceased lying in the pool of blood with numerous S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 85/99 injuries. He brought water from kitchen and tried to make her conscious but she did not respond and appeared to be dead. He claimed that he called Donatien Konig from the land line and informed him about the situation and asked him to arrange Ambulance and inform the police and to reach home immediately. He then received a call from Donatien Konig, who started asking unnecessary details from him. Accused asked him to reach home immediately but when he did not come, accused again contacted him to come immediately. The accused then made call to police at 100 number. He also tried to take deceased to the hospital by bringing his Santro Car in the compound but in the meantime, Ambulance arrived at the spot and took Isabelle to the hospital. In his attempt to provide comfort to Isabele, his hands and clothes were stained with some blood of the deceased. The entire story is fabricated and is contrary to the call detail records itself. In order to explain the call made from the land line to Donatien Konig, the accused has concocted story that the said call was made by him to Donatien Konig informing him about the situation and asking him to arrange Ambulance and inform the police. As per call detail S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 86/99 records, the call from land line was made to the mobile phone of Donatien Konig at 8:27 p.m. 31.11 Falsity of the claim of the accused becomes apparent from his next claim when he claimed that he received a call from Donatien Konig. As per call detail records Ex. PW19/E, call from Donatien Konig was received on his mobile phone at 8:42 p.m whereas the accused has tried to say that after the land line call of 8:27 p.m, he received call of Donatien Konig. There is no explanation, if the accused had asked Donatien Konig to inform the police at 8.27 pm, what was the need for the accused to inform the police. As per call detail records Ex. PW19/E, the accused had made calls at 100 number at 8:39 and 8:40 p.m. To put the records straight, as per call detail records, the call of Donatien Konig was received by him subsequent to informing the police i.e 8:42 p.m. 31.12 The accused then claimed that after informing the police, he tried to take the deceased to the hospital by bringing his Santro Car in the compound but in the meantime, Ambulance arrived and took Isabelle to the hospital. Again, this claim is also S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 87/99 full of falsehood. The accused is trying to tell that he was present at the spot after informing the police and even till the time when Isabelle was taken to the hospital, he was present at the spot. Perusal of the call detail records Ex. PW19/E shows that at the time of making first call to Police at 100 number at 8:39 p.m, the accused was at Vasant Vihar-II and at the time of termination of that call, he was at Vasant Enclave. Clearly, the accused was on the move and was not stationed at the house of the deceased. In the subsequent calls, his location is changing frequently, which shows that claim of the applicant that he remained present at the house of the deceased after informing the police, is nothing but false. 31.13 PW-7 Nirmal Kumar Tiwari is Assistant Junior Ambulance Officer, who stated that on 23.09.06 at 8:43 p.m, a call was received regarding the quarrel at E-9/12. He went there with his Ambulance to the said premises and found a lady lying on the floor. He removed the dead body in the Ambulance and two Belgium Nationals also accompanied him. This witness was duly cross-examined but no suggestion was given to this witness that S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 88/99 accused Vijay Pal was also present at the spot and that he had made efforts to remove the injured in his own Santro Car to the hospital or he had already brought the Santro Car in the compound of that premises for this purpose. The falsehood of the claim also becomes apparent as two Belgium Nationals had gone in the Ambulance to the hospital whereas the accused has not stated the presence of any Belgium Nationals in his statement recorded under Section 313 Cr.P.C. PW-1 Jean Louis and PW-3 Eric Santkin were those two Belgium Nationals, who had accompanied the injured in the Ambulance and at that time even Donatien Konig was present at the spot but neither all these three witnesses were put any suggestion in their cross-examinations that accused himself was present at the spot and had brought his Santro Car in the compound to take the injured to the hospital. Two independent witnesses, namely, PW-5 Ram Avtar and PW-6 Gaya Prashad Mishra had deposed that accused had gone away from the premises in his Santro Car, were also not put the suggestions that the accused had taken his Santro Car inside the compound to remove the injured to the hospital. S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 89/99 31.14 The accused then claimed that he was present at the spot when police arrived there and police had made inquiries from him also and at about midnight, he was allowed to go home with a direction to report next morning in the Police Station. Again, even this claim is false. First of all, two witnesses, namely, PW-5 and PW-6 deposed to have seen accused going away from the spot in his Santro Car at about 8.30 pm on 23.9.2006. Secondly, even the call detail records Ex. PW19/E show that after making the call to Police at 100 number at 8:39 p.m, location of the applicant changed continuously, which belies his claim that he was present at the spot and rather confirmed the prosecution case that he had left the spot. The story projected by the accused is also inherently defective as the applicant claimed that he was with the police and at around midnight, he was allowed to go home with direction to report in the PS next morning. This story of defence stand belied by the own witnesses of defence. Accused had got examined two witnesses, namely, DW-6 Mehrajuddin and DW-7 Narender. DW-6 Mehrajuddin, who is a neighbor of the accused, in his cross- examination, stated that he saw police near the house of the accused S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 90/99 on the night of 23.09.06. DW-7 Narender, who is Jija of the accused, stated that at about 12:00 midnight, on the night of 23/24.09.2006, police officials came to his house and inquired about the whereabouts of Vijay Pal and they left giving directions to him to inform the whereabouts of Vijay Pal as and when he comes to know about the same. If the accused was already with the police till midnight of 23/24.09.2006, where was the need for the police to go to the house of the accused or to his Jija to search the accused? Somebody would be searched only if he is absconding but police would not search a person, if the said person is already with the police. Even otherwise, no such suggestion that the accused was allowed to go home at about mid night on 23.9.2006 with further direction to come back in the morning at police station was made to PW 31 SR SS Yadav as the suggestion which was given to him was that the accused was already detained by police on 23.09.2006, from the spot and that in the morning of 24.09.2006, he had produced accused Vijay Pal before DCP. The story that the accused was with the police till midnight of 23.9.2006 is nothing but an afterthought and is a covering up attempt to overcome his S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 91/99 abscondance, which is clear from his call detail records Ex.PW19/E read with Ex. DW1/A according to which the location of the accused got changed frequently after he informed police at 100 number.
31.15 It was then claimed by the accused that on 24.09.2006 in the morning, he went to PS and was produced before the DCP and at that time, some of his friends, relatives, Advocates also visited the office of DCP. In other words, he claims that he went alone to the PS and then he was produced before the DCP and at that time, his friends, relatives and Advocates also reached the DCP office. This claim is false as can be noticed from the deposition of DW-7 Narender. In this regard he stated that on 24.09.2006, he received a phone call from Vijay Pal asking him to reach at the DCP office and he reached there with an Advocate and Vijay Pal was there. Thus, he claimed in his examination in chief that he (Narender) reached DCP office with an Advocate. However, in his cross-examination, he stated that on 24.09.2006 in the morning, Vijay Pal reached at the office of DCP in an Esteem Car with his S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 92/99 Advocate Sh. Raj Pal Kasana. On the one hand, accused claims that he went alone first to the PS and from there he was taken to the DCP office and there his Advocates reached but his Defence Witness DW-7 Narender initially claimed that Narender and Advocate went to the DCP Office and subsequently, he shifted his stand and claimed that Vijay Pal had gone to the DCP office on 24.09.2006 in an Esteem Car alongwith his Advocate Sh. Raj Pal Kasana. The stands are self contradictory, which bring fore the hollowness of the claim.
31.16 A defence witness DW-3 Laxmi Devi was produced, who claimed that on 23.09.06 at about 9:00 p.m, she saw Vijay Pal standing outside E-9/12 at about 9:00 p.m. This deposition cannot be relied upon as this witness stated that she was a domestic servant, who had worked at E-9/12 till 2005 and then she took up another job in D-Block. However, in her cross-examination, she could not tell the address where she was working in D-Block nor she could tell the name of the owner of that house. Besides, her deposition is in contradiction to the depositions of PW-5 Ram Avtar S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 93/99 and PW-6 Gaya Prashad Mishra and also the call detail records Ex. PW19/E, according to which, the accused was not at the spot after informing the police, rather his location was changing which suggest that he was on the move.
32. From a joint reading of the aforesaid discussion leads to the irresistible conclusion that the plea of alibi raised by the accused is not at all convincing. In Dudh Nath Pandy vs. State of U.P. 1981 (2) SCC 166 it was observed that the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. As noticed earlier, the presence of the accused at the place of offence is not impossible. On the contrary, the accused claimed that he reached the spot subsequently which is nothing but a lame explanation of the accused to justify and account for his presence at the spot. In State of Maharashtra v. Narsingrao Gangaram Pimple (1984) 1 SCC 446 it was held that a plea of alibi S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 94/99 must be proved with absolute certainity so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. In Binay Kumar Singh vs. State of Bihar 1997 (1) SCC 283 following relevant observations were made that if the prosecution succeeds in establishing the presence of the accused at the scene of crime with reliable evidence, courts would be slow in believing any counter evidence.
It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 95/99 evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
33. A perusal of the statement of the accused as given in his examination u/s 313 Cr PC shows that very very minute details like in which order the calls were made and received has been mentioned, which is nothing but an attempt to match/justify the call detail record. The reply given is nothing but an afterthought which becomes clear from the fact that no such detailed suggestions were given to the witnesses when they were cross examined by a leading criminal lawyer Mr. K.K. Manan. Records show that Sh. Manan was defending the accused from inception till 4.2.2011 and he cross examined as many as 30 prosecution witnesses out of total 32 witnesses examined on behalf of the prosecution. PW-31 and 32 were cross examined by Sh. L.K. Upadhayay, Advocate and from S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 96/99 this stage, the defence changed its direction. For the simple reason that the defence projected in examination u/s 313 Cr PC is at variance with the defence projected, by way of suggestions, in the cross examination of witnesses examined upto PW-30, the same is unreliable. Although it is trite that the prosecution is bound to prove its case on its own, but it is equally settled that if a case is based on circumstantial evidence, failure of the part of the accused to put relevant suggestions to the witnesses will be another circumstance against the accused. In Devender vs. Baldev AIR 2004 SC 3084 it was held that the statement u/s 313 Cr PC cannot be used to make up any suggestion during cross examination which ought to be put to the witnesses by the defence counsel. In T.P. Divetia vs. State of Gujarat 1997 (7) SCC 156 it was held that a false plea in examination u/s 313 Cr PC may be considered as an additional circumstance, if the other circumstances proved and established, point out the guilt of the accused. In State of Punjab vs. Phola Singh 2003 (11) SCC (Crl) 58 it was observed that prosecution is not supposed to meet every hypothetical question raised by the defence. If prosecution is required to meet every S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 97/99 fanciful plea, it would be a clear case of deflecting the course of justice. Law would fail to protect the community if it admitted all fanciful possibilities to deflect the course of justice. In Banti @ Guddu vs. State of Madhya Pradesh AIR 2004 SC 261 it was held that it is true that evidence of a defence witness is not to be ignored by the Courts. Like any other witness, his evidence has to be tested on the touchstone of reliability, credibility and trustworthiness and if after doing so, the court finds it to be untruthful, there is no legal bar in discarding it.
34. An argument was made that the arrest and consequent recovery of clothes of the accused by the police is highly doubtful as no independent public witness was involved. The law on this point is well settled that the testimony of police officials should be treated in same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witness, their depositions cannot be relied upon (Karamjit Singh vs. State AIR 2003 SC 1311). The lapses in investigation cannot also go against the prosecution if the case is otherwise proved. In S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 98/99 Dharmender Singh vs State of Gujarat 2002 Cr. LJ 2631 SC, it was held that defective or doubtful investigation does not necessarily lead to discredit the main prosecution case if prosecution evidence inspires confidence and circumstances lead to such a conclusion and prosecution story rings truth.
35. In view of the foregoing discussion, the prosecution has succeeded in proving that the deceased Isabelle was murdered by the accused Vijay Pal on 23.9.2006 at about 8.30 pm at E-9/12, Vasant Vihar, New Delhi. The accused Vijay Pal is thus convicted for the offence u/s 302 IPC.
Announced in the open Court. (Rajeev Bansal)
Dated:03.09.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 99/99
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No. 93/10
(Unique ID No.02403R0086492009)
FIR No. 459/2006
PS: Vasant Vihar
U/S: 302 IPC
State
Versus
Vijay Pal
S/o Sh. Bugre Singh
R/o 2028/22, New Pilanji, Kotla,
South Extension, New Delhi.
ORDER ON SENTENCE
PRESENT: Sh. S.K. Kain, Ld. Addl.PP for State.
Convict in JC with Cl. Sh. Raj Pal Kasana.
Ld. Counsel for convict has stated that the convict Vijay Pal has been convicted u/s 302 IPC. Ld. Counsel has stated that the convict has clean antecedents. The convict has two sons, who are studying and he has an old mother and a wife to support. It S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 100/99 is stated that the convict is the only bread winner for the family and hence a sympathetic view may be taken against him.
On the other hand, the Ld. Addl. PP has argued that the convict be given maximum punishment as he has murdered a foreign national, namely, Isabelle, who was also his employer.
Heard both the Ld. Counsels and have perused the records.
The conviction of convict Vijay Pal is under Section 302 IPC which provides for a punishment of death or imprisonment for life and also to fine.
Now coming to the sentence which shall be appropriate in the facts and circumstances of the case. There have been judicial pronouncements that in a case under Section 302 IPC, the sentence of life imprisonment shall be the rule and the punishment of death shall be exception, which shall be awarded only in cases which fall within the category of rarest of rare cases. The weapon used to commit murder is a kitchen knife. Except that, multiple stabs were S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 101/99 given by the convict to the deceased, no other evidence has been brought on record which can classify the present offence to qualify for being called 'rarest of rare'. As such, the case does not qualify the RR test.
In these circumstances, the convict is sentenced to undergo imprisonment for life and a fine of Rs. 5,000/- and in default of payment of fine, he shall undergo SI for a further period of one year.
Fine paid.
Convict shall be entitled to the benefit of Section 428 Cr.P.C.
Copy of the judgment and copy of the order on sentence is given to the convict free of cost.
File be consigned to the Record Room.
Announced in the open court. (Rajeev Bansal)
Dated: 06.09.2014 ASJ-3/South District
S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 102/99
Saket Courts, New Delhi
S.C. No. 93/10 FIR No. 459/06 State vs. Vijay Pal 103/99