Delhi District Court
State vs Deepak Kumar @ Deepak Kumar Gautam on 22 July, 2017
IN THE COURT OF SHRI SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-5, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
SESSION CASE NO. 2240/2016
IN THE MATTER OF:
State
VERSUS
1. Deepak Kumar @ Deepak Kumar Gautam,
S/o Sh. Sunder Lal,
R/o Village Shahpur, PS Kunda,
District Pratapgarh (UP),
2. Sonu @ Ashutosh Tiwari,
S/o Sh. Rajender Prasad,
R/o Village Shahpur, PS Kunda,
District Pratapgarh (UP),
3. Dalip Tripathi,
S/o Sh. Onkar Nath Tripathi,
R/o Village Shahpur, PS Kunda,
District Pratapgarh, (UP),
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 1 of 77
4. Rakesh Kumar
S/o Sh. Chandi Lal Soni
R/o Ankhoria, Gandhi Nagar,
PO & PS Kunda, District Pratapgarh (UP)
Date of institution : 15.10.2011
Date of arguments : 09.06.2017
Date of order : 22.07.2017
JUDGMENT
The case of prosecution is that a complainant of Ankur Bansal was received in Police Station vide DD No. 8-A dated 18.06.2011 wherein it was stated that his father Vinod Kumar Gupta left the residence H-33, Masjid Moth, GK-2, New Delhi-48 at about 9:00 p.m. yesterday 17.6.11 saying that he is going to Jasola & will come back within 1 ½ hours. He did not come back and his mother tried to contact him on mobile phone number 9971299792 and 9971299772, these phones were found switched off after 11:30 pm in the night. At about 02:00 am in night, he got call on their residence number 29227879 and the caller told that he was from Kasna, Greater Noida Police Station and vehicle number DL 4CN 5247 had been found abandoned. His father had not come home and he suspected that he had been abducted by someone.
2. On the basis of above complaint, the present case vide First Information Report (FIR) number 128/2011 under Section 365 of Indian Penal Code, 1860 (in short 'IPC') was registered at Police Station Chitranjan Park SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 2 of 77 (C.R.Park) and investigation took up. Ankur Bansal had lodged a missing report to the effect vide DD No. 49-B, dated 18.6.2011 at 6.50 am in Police Station C. R. Park. Investigation revealed that car number DL 4C NE 5237 was found abandoned in the jurisdiction of Police Station Kasna, Greater Noida, Uttar Pradesh which was taken into possession from said Police Station Kasna vide seizure memo dated 18.06.2011 by Sub-inspector Mukesh Kumar. The hue and cry notices of abducted Vinod Kumar Gupta were circulated in the adjoining districts and information was also uploaded on ZIP net.
3. The call details of cell phone number 9971299792 and 9971299772 of abducted person Vinod Kumar Gupta were obtained and analysed and found that Vinod Kumar Gupta had received last call on cell phone number 9971299792 from cell phone number 8858858895 at 8:40 pm on 17.06.2011. The holder of the cell phone was not identified and on further examination of call details of cell phone number 9971299792, it revealed that Vinod Kumar Gupta had made a call on cell number 9559069976. Both these two cell phones were found to be of Uttar Pradesh East Airtel and Uttar Pradesh East Uninor respectively. The call details of these two cell phones were obtained and analysed on which it revealed that holder of cell phone 9628469398 was in regular contact with holder of cell number 8858858895 and 9559069976 and its location was not in eastern Uttar Pradesh on 17.06.2011. The call details of cell number 9628469398 were obtained and examined. As the moments of holder of this cell phone was very suspicious so a trap was laid on the house of one of the contact of holder of this cell phone in Tilak Nagar and Assistant Sub Inspector Ved Vir along with staff was sent to Pratapgarh, Uttar Pradesh on 19.06.2011 on the basis of CDRs and A trap was laid in an around the house of the contract of cell number 9628469398 in Tilak Nagar where SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 3 of 77 accused Deepak Kumar was arrested on 20.06.2011 and his disclosure statement was recorded. He got recovered the railway ticket of Unchahar to Delhi JCD on 19.06.2011 of Rs. 119 and cash of Rs. 6,500/- which was shared from the booty from his two associates Dalip Tripathi and Sonu @ Ashutodh Tiwari Accused Deepak Kumar also got recovered mobile phone make G'Nine having SIM card number 9628469398 and IMEI number 352569041275593 and 352569041275601 used in the conspiracy and execution of plan of robbery and murder which was taken into possession through seizure memo dated 20.06.2011.
3. Accused Deepak Kumar also got recovered a dead body of a male person from room/kitchen of the house which were identified as the dead body of abducted person Vinod Kumar Bansal by his son Ankur Bansal. On the recovery of the dead body, the local police of Police Station Phase-II, Noida, Uttar Pradesh was called and inquest proceedings were carried out by them. 14 cigratte buds were found scattered on the grass of lawn of scene of crime i.e. House No. B-156, Sector-92, Noida, Uttar Pradesh. The cash of Rs. 5500/-, one gold chain, two diamond rings and two mobile phones of deceased were also found robbed off and therefore, Section 394/302/411/34 IPC were added to the case.
4. Assistant Sub-inspector Vedvir Singh who was already in Pratapgarh, Uttar Pradesh was provided the relevant information, who conducted raid in village Shahpur and arrested Sonu @ Ashutosh Tripathi on 20.06.2011 and recorded his disclosure statement. He got recorded one golden/diamond ring robbed off from the deceased and also got recovered a part cash of Rs. 9500/- out of the shared booty. He also made a pointing out SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 4 of 77 to a shop i.e. Shredha Jewellers and also identified the owner of the shop whose name later known as Rakesh Soni who received a looted golden chain for Rs. 60,000/- on 19.06.2011. Said Rakesh Soni was arrested who disclosed that he had melted the golden chain to avoid identification and arrest.
5. On 23.06.2011, accused Sonu and Deepak made a pointing out memo to a corner of a nallah (drain) adjacent to Bhrahamputra Complex, Sector-29, Noida from where one mobile phone make Nokia having SIM card of Airtel company and IMEI number 353792045720963 was taken out by diver namely Sunil and other mobile phone make Nokia, Model 2730 without SIM card having IMEI number 359370038982587 was taken out by diver Mohammad Jasim and said mobiles were taken into possession vide seizure memo.
6. The accused Dalip Tripathi was also arrested on 23.06.2011 by Assistant Sub-inspector Vedvir Singh from Faridabad, Haryana and a golden/ diamond ring was recovered from the left pocket of his pant which was seized and taken into possession through seizure memo.
7. After investigation, police report under section 173 of the Code of Criminal Procedure, 1973 (in short "Code") was filed against the accused persons for the offences punishable under Section 365, 394, 302, 411 read with Section 34 IPC before the learned Metropolitan Magistrate, South-East District, Saket Court, New Delhi. The learned Metropolitan Magistrate committed the case to the Court of Session vide order dated 01.10.2011.
8. Vide order dated 25.08.2012, charges were framed against the accused Deeapk Kumar, Sonu @ Ashutosh Tiwari and Dalip Tripathi for the SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 5 of 77 offences punishable under section 365, 394 and 302 read with Section 34 IPC. Charge for the offence punishable under Section 411 IPC was also framed against the accused Deeapk Kumar, Sonu @ Ashutosh Tiwari and Dalip Tripathi separately. Against the accused Rakesh Kumar, charge was framed for the offences punishable under Section 201 and 411 IPC.
9. The prosecution examined thirty three witnesses, namely, Head Constable Munesh Kumar (PW-1), Head Constable Sube Singh (PW-2), Ankur Bansal, (PW-3), Mohinder Pal Garg (PW-4), Santo (PW-5), Constable Tanish Kumar (PW-6), Arun Kumar Singh (PW-7), Constable Kunwar Pal (PW-
8), Kamal Krishan (PW-9), Hawa Singh (PW-10), Shri Prashant Sharma, (PW-
11), Vinod (PW-12), Kaushik Ghoshal (PW-13), Sub-inspector Babu Ram (PW-
14), Head Constable Bahgwan Singh (PW-15), Sub-inspector Ashwani Kumar (PW-16), Meena (PW-17), Constable Sanjeev Kumar (PW-18), Ali Mohd. (PW-
19), R.K. Singh (PW-20), Sunil (PW-21), Mohd. Jasim (PW-22), Sub-inspector Mukesh Kumar (PW-23), Doctor Hari Prasad (PW-24), Inspector Mahesh Kumar (PW-25), Head Constable Lile Singh (PW-26), Head Constable Sukhbir (PW-27), Head Constable Sanjeev (PW-28), Assistant Sub-inspector Ved Vir Singh (PW-29), Chander Shekar (PW-30), Inspector Ajay Sharma (PW-31), Dr. Hansraj Singh (PW-32) and Inspector Ram Niwas (PW-33). The statement of the accused persons were recorded under section 313 of the Code on 28.01.2016. Accused persons stood by their denial in their said statements. The accused persons examined no witness in their defence.
10. Shri Nischal Singh, learned Additional Public Prosecutor has submitted that prosecution has examined thirty-three witnesses and most of the witnesses have fully supported the case of prosecution. The confession of SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 6 of 77 the co-accused is relevant as per the evidence Act. The call details have been proved. It has been proved that two mobile phones of the deceased were recovered from the drain at the instance of the accused Ashutosh Tiwari and Deepak Kumar. The location of the mobile phone of the Deepak Kumar was at the spot from where the dead body of the deceased was recovered. The accused Deepak Kumar had taken mobile phone from the PW-17 and talked from said mobile phone with the deceased on the day of incident. There is no reasonable doubt in the evidence of prosecution witnesses and, therefore, accused persons may be convicted of the charges.
11. On the other hand, Shri Kishore Kumar learned amicus curiae appearing for the accused persons has submitted that there is no direct evidence and case is based on circumstantial evidence. The case is based on circumstantial evidence but chain of circumstances have not been completed and proved. The offences punishable under Section 365, 394 and 411 IPC have not been made out from the facts and circumstances of the case. There is no identification mark on the currency notes as stated by the investigating officer in his cross examination. The family members of the accused Ashutosh Tiwari were not joined at the time of recovery from his house by the investigating officer. One mobile phones having mobile number 9628469398 was stated to have been recovered from the possession of accused Deepak Kumar but said mobile number was not registered in the name of accused Deepak Kumar and the owner of the mobile phone number has not been examined to show that he had given the mobile phone number to the accused Deepak Kumar and therefore, there is no connection of the mobile phones with the crime.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 7 of 77
12. The learned counsel for the accused persons has further submitted that there is no statement of complainant in FIR or DD number that his father (deceased) was wearing chain and rings. The phone number 9873392591 was not in the name of PW-17 or her husband and the person in whose name same was registered, has not been examined. The railway ticket which is stated to have been recovered from the possession of the accused Deepak Kumar has not been verified. Accused Dalip Tripathi was arrested on 23.06.2011 at village Pallah near Nahar situated on road leads from Badarpur to Balbhgarh bypass when he came from Pallah village side and then one gold ring from his left pocket of his wearing pant was recovered as stated, but it is not possible that after five-six days of the incident, accused would keep the said ring in his pant and would go here and there.
13. He has further submitted that the investigating officer had not taken into possession the footage of CCTV camera to prove the presence of the accused persons at the Metro Station. When Investigating Officer Inspector Ajay Sharma was cross examined, he had stated several times that he did not remember when questions were put to him and hence, he has not given plausible answers to the several questions put to him. PW-21 and PW-22 are planted witnesses and their testimony are doubtful. The property documents were taken but mother of the complainant has not been made a witness. The wife of the complainant has not been cited as a witness. The admitted signature of the deceased has not been proved. The Permanent Account Number (PAN) has not been proved.
14. He has further submitted that the doctor who had conducted the postmortem of the dead body of the deceased has not been examined. PW-5 SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 8 of 77 is total hostile witness and he has not identified the accused Deepak. The CDRs of the mobile phones have not connected with the crime as the persons in whose names mobile numbers are, have not been examined by the prosecution. No single chain of the circumstantial evidence is complete and all the recovery is doubtful and therefore, accused persons may be acquitted.
15. Learned counsel has placed reliance upon the decisions, namely, Mahadev Prasad Pant v. State of Delhi; Drojan Singh v. State, 2014 [1] JCC 628; Sampath Kumar v. Inspector of Police Krishanagiri, Criminal Appeal No.1950 of 2009 (SC); Kanhaiya Lal v. State of Rajasthan, Criminal Appeal No.595 of 2014 (SC); Ashish Batham v. State of M.P., 2002 SCC (Cri) 1718; Shankarlal Gyarasilal Dixit v. State of Maharashtra, 1981 CRI.L.J 325; State of Haryana v. Jagbir Singh and Anr., 2004 SCC (Cri) 126; Varun Chaudhary v. State of Rajasthan, (2011) 12 SCC 545; Anil Kumar Goswami v. State (NCT of Delhi), 2012 (1) JCC 47; State v. Rakesh, 2013 (4) JCC 2464; Jaibir Singh v. State (Delhi Admn.), 57 (1995) DLT 479 (DB) and Rampal v. The State, 2010 (3) JCC 1713.
Missing of deceased Vinod Kumar Bansal, reporting the matter to the police and recovery of the car of the deceased
16. PW-3 Ankur Bansal deposed that on 17.06.2011, he was present along with his wife Smt. Priyanka Bansal, his mother Smt. Prem Lata Bansal, his new born son Agrim Bansal and his father Late Shri Vinod Kumar Bansal at the residence at H-33, Masjid Mor, GK-II, New Delhi. At about 08:30/09:00 pm, his father had left the home in his Corola Car bearing No. DL 4CN 5237 stating that he was going to Jasola and would return within 1 ½ - 2 hours, but he did SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 9 of 77 not come back by 11:00 pm. Then, his mother called him on his mobile phone numbers 9971299792 and 9971299772, which were found switched off. Then, at around 02:00 am in the night, they got a telephonic call from Police Station Greater Noida regarding the fact that aforesaid car was found abandoned near Kailash Hospital, Greater Noida. On receiving this information, they were shocked that his father might have met with an accident or some mis- happening was happened with him. Then, he called some of his relatives and approached Police Station Chitranjan Park at about 03:30 am and lodged a missing report Ex. PW-1/D-1.
17. PW-3 further deposed that thereafter, they along with relatives and neighbours went to Police Station Kasna, Greater Noida and found that their Corola Car bearing number DL 4CN 5237 was found there and they were informed that the said car was found abandoned in front of Kailash Hospital. It was found that car had not met with an accident and was not damaged in anyway, but there was no clue about the whereabouts of his father. Thereafter, he came to Police Station C. R. Park and informed the police that his father might abducted and requested the police to take action and gave a complaint to the police in this regard at about 11:00 am, which is Ex. PW-3/A.
18. He in cross-examination, stated that before leaving home, his father had talked on telephone with some person whom he did not know. He could not tell the number of person to whom he had talked. His father had gone alone from the house on that day. He could not tell the name of the person who informed him telephonically from Police Station Kasna as he had not obtained the said phone number and as same was received on landline phone.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 10 of 77
19. He in cross-examination, further inter alia stated that he, along with his uncle Mahinder Garg, his brother-in-law Sushant, his father Nishan and one neighbour had gone to Police Station Kasna. He had not mentioned in his missing report regarding the watch, clothes, rings etc. wore by his father. He visited regularly to the Police Station C.R.Park during 18.06.2011 to 20.06.2011.
20. PW-4 Mohinder Pal Garg deposed that Vinod Gupta was his brother- in-law. On 18.06.2011, he along with Delhi Police went to Police Station Kasna, UP. A Toyota Corolla car bearing no. DL 4CNE 5237 was inspected and photographed in the police station Kasna, Uttar Pradesh. Thereafter, the car was seized by the Delhi Police officials vide seizure memo Ex. PW-4/A. The car was brought back to Delhi.
21. This witness has not been cross-examined by accused persons. Further, this witness has identified correctly the car as Ex.MO-1 during trial.
22. PW-6 Constable Tanish Kumar deposed that on 18.06.2011, he was posted as a photographer at Crime Team, South District and on that day, pursuant to a call of Sub-inspector Mukesh Kumar (Investigating Officer), he along with Head Constable Bhagwan Sahay reached at police station Kasna, Uttar Pradesh where he took the photographs of a car bearing number DL 4CNE 8237. The photographs have been marked as Ex.PW-6/A-1 to Ex.PW- 6/A-9 and negatives as Ex.PW-6/B-1 to Ex.PW-6/B-9.
23. PW-6 was cross examined on behalf of accused persons but nothing has been come against the case of prosecution. He has denied the suggestion SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 11 of 77 that he had taken photographs later on at the instance of the Investigating Officer.
24. PW-14 Sub-inspector Babu Ram has testified that on 18th June, 2011, he was posted as malkhana incharge at Police Station Kasna (Uttar Pradesh). On that day, Sub-inspector Mukesh came to Police station Kasna (UP) and had inspected Toyota car bearing number DL 4CNE 5237 at the Police Station which was was found in an abandoned condition on the intervening night of 17/18th June, 2011 near Pari Chowk, Kailash Hospital, Greater Noida. He handed over the said car in proper condition to him, which was seized by him vide seizure memo Ex. PW-4/A. He was cross examined but nothing has come in his cross-examination. He stated in said cross- examination that he had not recovered the said car.
25. PW-15 Head Constable Bahgwan Singh deposed that on 18.06.2011, he was performing his duty at proficient expert in mobile crime team, south east and on that day, on being called by Sub Inspector Mukesh, he along with photographer Constable Danish and Sub Inspector Naresh Kumar Singh, Incharge crime team had reached police station Kasana along with investigating officer from police station C.R. Park. As per the instructions of the invesgating officer, their team had inspected and taken photographs of Toyota car bearing registration no. DL 4CNE 5237 from different angles. He had attempted to lift finger prints from the car but no finger prints were found. He had prepared a report vide Ex.PW-15/A. This witness was not cross examined by the accused persons.
26. PW-23 Sub-inspector Mukesh Kumar has testified that on 18.06.2011, SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 12 of 77 he was posted as Sub Inspector at police station C. R. Park. During the morning house of 18th June, 2011, a missing report (Ex. PW-1/D-1) bearing DD number 49-B was assigned to him for inquiry. On that day, on receipt of information from police station Kasna regarding recovery of Toyota Corolla bearing number DL 4CNE 5237 of grey colour, he along with crime team officials Head Constable Bhagwan Singh, constable Tanish, complainant Ankur Bansal and Mahender Garg, relative of the complainant reached there. The Toyota Corolla bearing number DL 4CNE 5237 was found parked at the police station. The vehicle was inspected by the crime team officials and the vehicle was photographed by them. The vehicle was seized vide seizure memo Ex. PW-4/A, bearing his signatures at point C and thereafter the vehicle was brought to the police station C. R. Park and deposited in the Malkhana.
27. He in cross-examination stated that he had not stated in his statement under Section 161 of the Code that he was posted as Sub-inspector on 18.06.2011 at said police station and a missing report was assigned to him for inquiry; that on receipt of information regarding said car, he along with other official etc. reached there; that said car was found parked at the police station , same was inspected by crime team officials, vehicle was photographed , seized , brought to Police Station C. R. Park and deposited in malkhana. It is correct that this witness has admitted that these facts do not find mention in his statement under section 161 of the Code. But PW-4 has deposed that he along with Delhi Police went to Police Station Kasna and car was seized by the Delhi Police vide seizure memo Ex.PW-4/A and said car was brought back to Delhi. Further PW-14 Sub-inspector Babu Ram was malkhana incharge at Police Station Kaasna (Uttar Pradesh) stated that on PW-23 came to Police station Kasna and had inspected Toyota car bearing number DL 4CNE 5237 SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 13 of 77 at the Police Station which was was found in an abandoned condition on the intervening night of 17/18th June, 2011 near Pari Chowk, Kailash Hospital, Greater Noida. PW-14 handed over the said car to PW-23, which was seized by him vide seizure memo Ex. PW-4/A. Ex. PW-4/A bearing signatures of PW- 4, PW-14 and PW-23 and they have identified their signatures upon it. Hence, said improvements in the testimony of PW-23 are of no consequences.
28. PW-33 Inspector Ram Niwas has testified that on 18.06.2011, he was posted as Sub-inspector at Police Station C. R. Park. On that day, a complaint was received from one Ankur Bansal regarding abduction of his father. On the contents of the complaint, a case under Section 365 IPC was made out. Accordingly, the rukka Ex. PW-33/A was prepared by him and thereafter was handed over to the duty officer for registration of FIR. After registration of case, investigation was further assigned to him by duty officer. In cross -examination of PW-33, nothing has been come out in this regard.
29. PW-1 Head Constable Munesh Kumar deposed that he was on duty as duty officer from 08:00 am to 04:00 pm on 18.06.2011. During his duty hours, at about 11:30 am, Sub-inspector Ram Niwas gave him a complaint after making his endorsement on the same for registration of FIR. On the basis of the said endorsement, he recorded the present FIR by getting it typed. The typed copy of the same is Ex. PW-1/A. He made an endorsement to this effect vide Ex. PW-1/B on the complaint which bear his signatures at point A. After registration of the FIR, copy of the same along with the complaint was given to the said Sub-inspector Ram Niwas for further investigation. He brought the original record of FIR.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 14 of 77
30. In cross-examination of PW-1, nothing has been come out against the testimony which he deposed.
31. PW-2 Head Constable Sube Singh deposed that on the intervening night of 17/18.06.2011, he was posted as a duty officer at Police Station C.R. Park. On that day, his duty hours were 12:00 am (midnight) to 08:00 am. At 06:25 am, he received an information from the operator (JAVA 66) to the effect that "at House No. 33, Masjid Mor, GK-II, Sh. Vinod Bansal c/o Prem Lata Bansal, aged 56 years, height 5'10 inch is missing since 17.06.2011, whose vehicle is found in Noida, phone number 29227879". He recorded this information in the daily diary register (roznamcha) at serial number 37. After registration of the information, he gave the copy of the same to Constable Ravinder for sending it to the emergency officer Sub-inspector Mukesh Kumar. Copy of the DD is Ex. PW-2/A . The said DD was recorded in his handwriting. This witness has not been cross examined by the accused persons.
32. Hence from the testimony of PW-1, PW-2, PW-3, PW-4, PW-6, PW- 14,PW-15, PW-23 and PW-33 as discussed above, it has been proved that Vinod Kumar Gupta (deceased) had left his home i.e. H-33, Masjid Mor, GK-II, New Delhi in his Corola car bearing number DL 4CNE 5237 at 08:30/09:00 pm on 17.06.2011 stating to family members that he was going to Jasola and would return within 1 ½ - 2 hours, but he did not come back by 11:00 pm; that at around 02:00 am in the night, they got a telephonic call from Police Station Kasna, Greater Noida that aforesaid car was found abandoned near Kailash Hospital, Greater Noida; that PW-3 called some of his relatives and approached police station Chitranjan Park (C.R. Park) at about 03:30 am and lodged a missing report Ex. PW-1/D-1; that their Corola car bearing number SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 15 of 77 DL 4CNE 5237 was found at Police Station Kasna, Greater Noida; that PW-6 Constable Tanish Kumar took the photographs of said car vide Ex.PW-6/A-1 to Ex.PW-6/A-9; that the vehicle was seized vide seizure memo Ex. PW-4/A and thereafter the vehicle was brought to the police station C. R. Park and deposited in the Malkhana; that PW-3 gave a complaint to the police vide Ex. PW-3/A; that rukka Ex. PW-33/A was prepared by PW-33 and FIR was registered vide Ex. PW-1/A; that PW-2 Head Constable Sube Singh received an information at 06:25 am on 18.06.2011 from the operator (JAVA 66) regarding missing of deceased and recovery of his vehicle from Noida and recorded said information in roznamacha at serial number 37 vide Ex. PW-2/A. Stay/visit of the deceased along with accused Ashutosh Tiwari at Transit Lodge, Chandigarh
33. PW-26 Head Constable Lile Singh deposed in this regard that he joined investigation with Investigating Officer Sub-inpsector Ram Niwas (PW-
33) and had accompanied PW-33 and accused Sonu @ Ashutosh on police remand to Chandigarh. Accused Sonu had taken them to Room Number 106, Transit Lodge, ISBT, Sector-17, Chandigarh. He had pointed out the said room, where about two years ago he along with V.K. Bansal had come from Delhi and stayed there. PW-33 prepared a pointing out memo (Ex. PW-9/B). PW-33 checked Reception Register of the Transit Lodge in his presence and entry at SI. No. 2395 dated 27.08.2009 in the said register was registered in the name of visitor as V.K. Bansal and number of person/entry was of two person. PW-33 took into possession relevant page of the register. Photocopy of the relevant page of the entry in the register is Ex. PW-3/I, bearing the particular of entry at a point A & B. SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 16 of 77
34. PW-33 Inspector Ram Niwas deposed in this regard that on 22.06.2011, the accused Aushutosh @ Sonu led them to the Transit Hotel, Chandigarh. At the instance of accused, he prepared the pointing out memo vide Ex. PW-9/B of the room number 106 of the hotel. The relevant entry of the register of the hotel was also taken on record vide seizure memo Ex. PW-9/A. The Transit Lodge record was exhibited as Ex. PW-3/I.
35. PW-9 Kamal Krishan has deposed that on 22.06.2011, while he was working as receptionist in the Transit Lodge which was running under the administration of Chandigarh Industrial Tourism Development Corporation, police came and obtained the copy of register of Transit Lodge bearing entry number 2395 dated 27.08.2009 which is Ex.PW-3/I. As per the entry, the room number 106 was booked in the name of Sh. V. K. Bansal along with one more person. The police seized the said copy of the entry in the register vide memo Ex.PW-9/A. On that day, police had brought one boy who pointed the room number 106 in the Transit Lodge, where he stayed along with Sh. V. K. Bansal. The police had prepared the pointing out memo which is Ex.PW-9/B.
36. PW-10 Hawa Singh deposed that during the period between August, 2007 till December, 2010, he was posted as receptionist at Transit Lodge, ISBT, Sector-17, Chandigarh. He had brought the visitors register containing entry number 2395 dated 27.08.2009, which is in the name of Sh. V. K. Bansal with one other person. Staff is posted in three shifts. First shift was in the morning from 07:00 a.m. to 03:00 p.m., the second shift was w.e.f 03:00 p.m. to 11:00 p.m. and the third shift was w.e.f 11:00 p.m. to 07:00 a.m.. On 27.08.2009, he was not on duty in the second shift i.e. 03:00 p.m. to 11:00 SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 17 of 77 p.m..
37. He further deposed that as per record, check-in entry number 2395 dated 27.08.2009 in the register was made Jagdish Chand, Junior Assistant. He identified the handwriting of Jagdish Chand at point encircled -A on Ex. PW-3/I ( wrongly mentioned as Ex.PW-31/I). They were working together in the same office and he had seen him while writing and signing in the due course of his duty. Next day, the check-out column was filled by Anil Grover, which is mentioned in next part of page number 90. He identified the handwriting of Anil Grover at point encircled -B on Ex. PW-3/I ( wrongly mentioned as Ex.PW- 31/I). They were working together in the same office and he had seen him while writing and signing in the due course of his duty.
38. He further deposed that he remained posted at Transit Lodge till December, 2010. On 22.06.2011, he was not posted at Transit Lodge and on that day, he was called there by his senior Pardeep Sharma. Pursuant to his call, he reached at Transit Lodge, where Delhi Police found present along with one boy. The police had shown him one photograph of one person. The photograph belongs to V. K. Bansal and he identified his photograph as V. K. Bansal used to come to their lodge in the gap of one month or two month, therefore, he knew him by face and name. The police had also showed one boy, but he did not identified him before the police as he did not know him.
39. PW-3 Ankur Bansal testified in this regard that police had inquired from him regarding the hand writing and signatures of his father late Vinod Kumar Bansal regarding an entry in a register of Transit Lodge, Chandigarh. He identified the handwriting and signature of his father thereon. He identified SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 18 of 77 the handwriting of his father on the document, copy of which is Ex.PW-3/I, bearing signature of his father at point-A.
40. To prove the visit/stay at Transit Lodge, Chandigarh on 27.08.2009 by deceased along with accused Ashutosh Tewari @ Sonu, prosecution has examined five witnesses. PW-26 and PW-33 are police officers. PW-3 is complainant. PW-9 and PW-10 are employees of said Transit Lodge. PW-26 and PW-33 have clearly deposed regarding leading them by accused Ashutosh Tiwari to said Transit Lodge on 22.06.2011 and checking the Reception Register of the said Lodge and finding the entry at serial number 2395 dated 27.08.2009 therein registered in the name of visitor as V.K.Bansal and number of person/entry of two person. PW-9 and PW-10 who were employees of said Lodge at relevant point of time, have also corroborated the testimony of PW-26 and PW-33 regarding coming of police along with one boy at said lodge on 22.06.2011. PW-9, PW-26 and PW-33 have corroborated each other regarding obtaining the copy of register of Transit Lodge Ex. PW-3/I by police (PW-33) and seizure of the same vide memo Ex. PW-9/A. Memo Ex. PW-9/A is bearing signature of PW-9.
41. PW-10 was posted as receptionist during the period between August, 2007 till December, 2010 at said Lodge and he brought the visitors register containing entry number 2395 dated 27.08.2009, which is in the name of Sh. V. K. Bansal with one other person. He identified the handwriting of Jagdish Chand at point encircled -A on Ex. PW-3/I. He identified also the handwriting of Anil Grover at point encircled -B on Ex. PW-3/I which is the check-out column filled by Anil Grover, which is mentioned in next part of page number 90. He has clarified that he identified the signatures of said Jagdish SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 19 of 77 Chand and Anil Grover as they were working together in the same office and he had seen them while writing and signing in the due course of his duty. This witness was shown the photograph of deceased V. K. Bansal on 22.06.2011 by the Delhi Police and he identified the photograph as of deceased as he used to come to said lodge in the gap of one month or two month.
42. PW-9 and PW-10 could not identify the accused Ashutosh Tiwari due to lapse of time. But they both has deposed that one boy had also come on 22.06.2011 along with Delhi Police. PW-26 and PW-33 have clearly identified the accused Ashutosh Tiwari as the person who led them to said Transit Lodge. Complainant (PW-3) who is the son of deceased has identified the signature/handwriting of his father at point A on the document/ register of Transit Lodge bearing entry number 2395 dated 27.08.2009, which is Ex.PW- 3/I. Nothing have been come out against the case of prosecution in this regard in the cross-examination of PW-3, PW-9, PW-10, PW-26 and PW-33.
43. Hence, From the above mentioned testimony of PW-3, PW-9, PW- 10, PW-26 and PW-33, it has been proved that on 27.08.2009 the deceased along with accused Ashutosh Tiwari visited/stayed at Transit Lodge, ISBT, Sector 17, Chandigarh.
Arrest of accused Deepak Kumar and recovery of dead body of deceased
44. PW-33 Inspector Ram Niwas testified that during the course of investigation, efforts were made to trace the abducted person, he prepared hue and cry notice Ex. PW-33/B and WT message Ex. PW-33/C was also flashed in this regard. The call details of the abducted person were also SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 20 of 77 analyzed and it came to notice that he had received the last call on 17.06.2011 in the morning from one cell phone. He did not recollect the number of cell phone but last two digits were 85 and this mobile phone pertained to service provider operating under the name and style of Uninor Company. The call details of this suspected number were also checked and holder of another cell phone having last four digit 9398 of TATA UP was found in touch with this number and the location of both these two cell phones as found to be in Old Delhi Railway Station on 17.06.2011. He conducted inquiry from the last cell ID of abducted person i.e TDI Mall, Apollo, where the abducted was having a site that was under construction.
45. He further deposed that on 19.06.2011, the technical investigation revealed that holder of cell phone number 9398 was in constant touch of a cell phone and the subscriber of this cell phone was found at Tilak Nagar. The address was verified and found correct. The detail of whereabouts of abducted person was not known and both the mobile phones were found initially at Pratapgarh, Uttar Pradesh and it was suspected that the abduction was handy work of a notorious criminal of Pratapgarh. Two constables namely Pushpender Kumar and Sunil Kumar were deployed at the address of the subscriber at Tilak Nagar and both were properly briefed.
46. He further testified that on 20.06.2011, at about 6:00 am, he along with Sub -inspector Mukesh Kumar went to Tilak Nagar, where he nabbed a person, whose name later known as Deepak Kumar. He was interrogated and arrested formally vide arrest memo Ex. PW-23/A, bearing his signature at point B. He also conducted the personal search vide memo Ex. PW-23/B, bearing his signature at point B. His disclosure statement was recorded vide SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 21 of 77 memo Ex. PW-23/C, bearing his signature at point B. In pursuant to said disclosure statement, he got recovered the robbed amount of Rs. 6,500/- in denomination of note of Rs. 500/-and railway ticket from Unchar to Delhi which were taken into possession vide seizure memo Ex. PW-23/D, bearing his signature at point B. Accused also got recovered the mobile phone having last four digit as 9398 from his pant pocket, which he was using in the commission of present case and same was seized vide seizure memo Ex. PW-23/E, bearing his signature at point B. Accused Deepak along with recovered articles was brought to the police station. The complainant was also called at the police station.
47. He further testified that thereafter, he along with accused Deepak, Station House Officer Police Station C. R. Park and other senior police officials proceeded to Noida, Uttar Pradesh. On the instance and identification of the accused Deepak Kumar, a dead body of male person was recovered at B-156, Sector-92, Noida, near Omax Building which was highly decomposed. The pointing out of scene of crime and recovery memo of dead body was prepared by him vide Ex. PW-3/B. The dead body was also identified by the son of the deceased. SHO, Police Station C. R. Park informed the local police of Noida. The cigarette buds were found scattered on the grass outside the room, where dead body was found. The cigarette buds were taken into possession vide memo Ex. PW-3/D, bearing his signature at point B. The sketch of place of recovery/place of occurrence was prepared by him on his observation vide Ex. PW-3/C. He recorded the statement of witnesses and section 302 IPC was added during investigation. Further investigation was handed over to Inspector Ajay Kumar Sharma, SHO, C. R. Park. He came back to Police Station and case property was deposited in the Malkhana.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 22 of 77
48. PW-23 Sub-inspector Mukesh Kumar in his examination in chief has testified that On 20th June 2011, at about 6.00 am, he along with sub inspector Ram Niwas reached at House No. B-4/27, Tilak Nagar, where accused Deepak after interrogation was arrested. His arrest memo (Ex. PW-23/A) bears his signature at point A. His personal search was carried on vide memo Ex. PW-23/B, bearing his signature at point A. Rs. 6,500/- and a railway ticket were recovered from the right pocket of his pant, which were seized vide memo Ex. PW-23/D, bearing his signature at point A. His mobile phone G9 was recovered from the pant of accused Deepak, which was seized vide memo Ex. PW-23/E, bearing his signature at point A. Thereafter, accused Deepak was brought to the police station.
49. He further testified that on 20.06.2011 he along with the Investigating Officer Sub Inspector Ram Niwas, complainant Ankur Bansal, his driver and other senior officials reached at House No. B-156, Sector-92, Noida and at his instance, they reached in the kitchen of the said house and at the instance of accused Deepak Kumar, dead body of Vinod Kumar Gupta, father of the Ankur Bansal, was recovered from the said kitchen. Local police officials also reached there. Ankur Bansal identified the dead body of his father Vinod Kumar Gupta. Investigating Officer prepared the pointing out memo vide Ex. PW-3/B, bearing his signature at point C and accused Deepak put his signature at point D. Investigating Officer also prepared the site plan of the recovery of the dead body vide Ex. PW-3/C which bears his signature at point C. The dead body was taken in possession by the local police of police station Sector-92, Noida. 14 cigarette buds were recovered from the grass outside of SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 23 of 77 the house, the same were kept in a transparent plastic container, the same was sealed with the seal of RNY and was seized by vide seizure memo Ex. PW-3/D, bearing his signatures at point C and thereafter they returned back to police station C. R. Park with the accused Deepak. He identified the accused, 13 currency notes in denomination of Rs. 500 each (total Rs. 6500) Ex. MO4, one railway ticket from Unchahar to Delhi Jn. Dated 19.06.2011 Ex. MO5, one mobile phone G-Nine with IMEI No. 352569041275593 and 352569041275601 with one SIM of Vodafone company in the mobile phone Ex. MO6 and plastic container of cylindrical shape containing cigarette buds Ex. MO6 during trial.
50. PW-3 Ankur Bansal testified in this regard that in the morning hours of 20.06.2011, he was called to the Police Station C. R. Park and a boy named Deepak Kumar was already in the custody of the Police. At the instance of the said boy Deepak, who had accompanied the team of SHO and other police officials and himself at House No. B-156, Sector No. 92, Noida, which was a built up house in a plot belonging to his mother, where they found the dead body of his father Shri Vinod Kumar Bansal from the kitchen of the said house. He identified the dead body of his father. He also identified his signature at point-A on the pointing out cum recovery memo of dead body Ex. PW-3/B. Police prepared site plan of the place of the recovery of dead body, which is Ex.PW-3/C. Police had also collected some buds of the cigarette, which were 14 in number, which were sealed and seized by the police. He was a witness to the seizure memo of the same, which is Ex.PW-3/D. Noida police also reached at the spot and prepared panchnama, which is Ex.PW-3/E. After postmortem on the dead body, the same was handed over to them on 20.06.2011. He identified the accused Deepak Kumar during trial. In the month of September 2011, he handed over photocopies of certain documents SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 24 of 77 i.e., allotment letter of plot no. B-156, Sector no.92, Noida and some other documents pertaining to the said plot to the police vide seizure memo Ex.PW- 3/H. Photocopies of allotment letter is Ex.PW-3/H1 and possession letter is Ex.PW-3/H2.
51. PW-5 Santo deposed that in the year 2011, he was working as mason in the area of Sector 192, Noida under Shri Hamim-contractor. He was allotted the work in premises no. 155 for mason work. He along with his family was residing at house no. 156. He was not aware about the ownership of house no. 156 . In the month of June, three persons came at house no. 156 and asked him to vacate the same. They had also talked with the so called owner, who also asked him to vacate the house. He immediately vacate the house on 17.06.2011. He constructed a jhuggi at a distance from the said house and started living there.
52. He further deposed that after about three days, police had reached at house no. 156, where he was called. One person was also accompanied with the police, who had got vacated the house from him along with two other persons. One dead body was found in the kitchen of premises no. 156. None identified the dead body at the spot. He do not know about the identity of dead body. Name of person who got recovered the dead body could not be revealed to him at the spot. Since 2½ -3 years have been lapsed, therefore, he could not identify the said person in the Court. Police had recorded his statement. Police had seized the dead body vide seizure memo (Ex. PW-3/B).
53. He in his cross-examination, stated that he was residing at house no. 156 prior 5-6 days of the date of eviction i.e. 17.06.2011 and he was having SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 25 of 77 five children ranging aged about 3 to 12 years old at that time. They were four persons working in the construction work at house no. 155. Hameem contractor was present at house no. 155 on the day when dead body was recovered. When three persoms came for vacation of house no. 156 on 17.06.2011, he himself, his wife and children, and contractor Hameem and his wife were present at the house. Neither he had seen the owner nor any family member of the house no.156. When he was talking to the house owner over phone, all the his family members as well as of contractor were present. He had a telephonic conversation with the person who claimed to be the landlord hardly for one minute and he told him to vacate the house .
54. PW-12 Vinod deposed that he was employed as a Driver with Sh. V. K. Bansal (since deceased) r/o H-33, Masjid Mor, GK-II. He do not remember the date, month and year. On the day, prior to the incident, he had worked till 05:00 pm and he was asked by Sh. V. K. Bansal to come to the house in the next morning at 06:00 am, in order to go to Jaipur. When he came to there house at 06:00 am, he came to know about the demise of Sh. V. K. Bansal. As far as, he can recollect on 20th, he had accompanied Sh. Ankur Basal, S/o Sh. V. K. Bansal to Sector-92, Noida. Their car had followed the Police Van. One person, who was in the custody of the police was accompanying with the police in Police Van, when they had reached at Sector-92, Noida. he had gone inside the house from where dead body of Sh. V. K. Bansal was found. Dead body was seized by the police vide seizure memo Ex.PW-3/B bearing his signature at point-C. He also identified his signature at point-B on the site map (Ex.PW-3/C). He also identified his signature at point-B on the seizure memo of cigarette butts (Ex.PW-3/D). Since, three years have lapsed since the incident, therefore, he was not in position to identify the person, who had SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 26 of 77 accompanied with the police at house at Sector-92, Noida. He was illiterate. He did not remember even the name of the said person. Due to lapse of time, he forgotten the name and description of his physique.
55. In cross-examination, the credit of witness could not be impeached. He stated regarding total three drivers, one for deceased (himself), one for complainant and one for other family members. He described the recovery of dead body of deceased. He denied the suggestion that he never visited the place of occurrence or that he signed on the blank papers at the police station. He is the one of the signatory of seizure memo of dead body of deceased Ex. PW-3/B. Said seizure memo bears his signature at point C which he identified. He also identified his signature at point B on the seizure memo of cigarette butts Ex. PW-3/D and at point B on the site map Ex. PW-3/C. It is correct that he did not tell the name of said accused and could not identify the accused Deepak Kumar but reason given for that is plausible as his evidence was recorded after about three years. He did not say that accused present in the court did not lead them to place of recovery of dead body.
56. PW-16 Sub-inspector Ashwani Kumar has testified that on 20.06.2011, he was posted at Police Station Phase II, Noida, Uttar Pradesh. On that day on the request of Delhi Police, he had reached B-156, Sector 92, Noida, Uttar Pradesh where he saw one dead body of male person lying in the kitchen. The said dead body was identified by Ankur Bansal as of his father/V. K. Bansal. The accused Deepak Kumar was also present at the spot along with the police on whose instance the dead body was recovered. He had prepared the inquest papers vide Ex. PW-3/E (wrongly written as Ex. PW-3/F) running into three pages bearing his signatures at point B. SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 27 of 77
57. In the cross-examination of this witness, nothing has been come against the case of prosecution. He stated about the information of recovery of dead body of deceased which was given by Inspector Ajay Sharma, Station House Officer, Police Station C.R.Park to Inspector Sudhir Kumar Tyagi, Station House Officer, Phase II, Noida. He stated time of leaving the police station and thereafter place of said recovery. He told the departure DD entry i.e. DD No.27. He described the situations of nearby plots of said spot etc. He denied the suggestion that he did not visit the said spot. He stated that inquest papers (Ex.PW-3/E) are in handwriting. He identified his signature at point B on said inquest papers. He denied the suggestion that he was deposing falsely at the instance of Investigating Officer. Why this witness will depose falsely at the instance of Investigating Officer particularly when this witness and Investigating Officer are of different police station of different states/union territory.
58. Hence, PW-33 Inspector Ram Niwas and PW-23 Sub-inpsector Mukesh Kumar have deposed regarding arrest of accused Deepak and recovery of robbed amount of Rs. 6,500/- in denomination of Rs. 500/-and railway ticket from Unchar to Delhi and seizure thereof vide seizure memo Ex. PW-23/D and recovery of his mobile phone G'NINE from his pant and its seizure vide memo Ex. PW-23/E. Seizure memo Ex. PW-23/E goes to show that make of mobile phone is G'NINE having IMEI No. 352569041275601 and 352569041275593 and SIM Card is of Vodafone Company and number is 9628469398. Accused Deepak Kumar was arrested and since then he is in custody.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 28 of 77
59. Further, prosecution has examined six witnesses to prove the recovery of dead body of deceased and fourteen cigerette butts from the house no. 156, Sector 92, Noida, Uttar Pradesh at the instance of accused Deepak Kumar. Two witnesses i.e. PW-33 Inspector Ram Niwas and PW-23 Sub-inpsector Mukesh are from Delhi Police. PW-16 Sub -inspector Ashwani Kumar is from Police Station Phase II, Noida, Uttar Pradesh. PW-3 Ankur Bansal is complainant/son of deceased. PW-12 Vinod Kumar is driver of deceased and PW-5 Santo is mason who was residing on 17.06.2011 at the house from where dead body of deceased was recovered on 20.06.2011. All the six witnesses have corroborated each other on the aspect of recovery of dead body from the House no. 156, Sector 92, Noida Uttar Pradesh. The recovery memo of dead body of deceased Ex. PW-3/B is bearing signatures of PW-3, PW-12 and PW-23 who have identified the same thereon. PW-3, PW-16, PW- 23 and PW-33 have identified the accused Deepak from whom instance the said dead body was recovered. PW-5 and PW-12 could not identified the accused Deepak due to lapse of time but they have categorically deposed that dead body was recovered from the said house no.156 and at that time one accused was present. The testimony of PW-3, PW-12, PW-23 and PW-33 cannot be discarded only on the ground that they are interested witnesses being police officer investigating the case or assisting in investigation or being son of the deceased or driver of the deceased particularly when there deposition inspire the confidence. PW-5 is independent witness who supported the case of prosecution on the aspect of recovery of dead body of deceased at said house no.156. This witness has proved also that he along with his family was residing at said house no.156 and in the month of June, three persons came there and asked him to vacate the same; that they had also talked with SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 29 of 77 the so called owner, who also asked him to vacate the house and he immediately vacated the house on 17.06.2011.
60. With regard to preparation of site plan of house/plot no.156, Sector no.92, Noida, testimony of PW-3, PW-23, PW-25 and PW-33 are relevant. PW- 33 Inspector Ram Niwas has stated that the sketch of place of recovery/ place of occurrence was prepared by him on his observation vide Ex.PW-3/C. PW-3 Ankur Bansal had deposed that the police prepared site plan of place of recovery of dead body vide Ex.PW-3/C bearing his signature at point A. PW-23 Sub-inspector Mukesh Kumar has testified that investigating officer (PW-33) prepared the site plan of recovery of dead body vide Ex.PW-3/C which bears his signature at point C. From these evidence, the site plan of place of occurrence/ place of recovery of dead body has been proved as Ex.PW-3/C. Further, PW-25 Inspector Mahesh Kumar has proved scaled site plan vide Ex.PW-25/A.
61. Hence, from the above mentioned testimony of PW-3, PW-5, PW-12, PW-16, PW-23, PW-25 and PW-33, it has been proved that accused Deepak Kumar was arrested on 20.06.2011 and Rs. 6,500/- and a railway ticket were recovered from the right pocket of his pant, which were seized vide memo Ex. PW-23/D; that his mobile phone G'NINE with IMEI No.352569041275593 and 3525690412755601 with one SIM of Vodafone company having number 9628469398 was recovered from his pant, which was seized vide memo Ex. PW-23/E; that 14 cigerette butts and dead body of deceased were recovered on 20.06.2011 at his instance from the House No. 156, Sector 92, Noida, Uttar Pradesh.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 30 of 77 Arrest of accused Ashutosh @ Sonu and recovery from him
62. PW-29 Assistant Sub-inspector Ved Vir Singh deposed that investigation of this case was entrusted upon him pursuant to which, he along with Head Constable Sanjiv, Constable Mahender Kapoor and Constable Babinder went to Kunda, district Pratapgarh, UP in search of accused persons in a private vehicle. In the morning hours of 20.06.2011, they reached at Kunda. At Kunda, he received a telephonic information from Station House Officer Police Station C.R. Park regarding apprehension of one accused in this case at Delhi and he disclosed that the two accused persons were available at village Shahpur near Kunda, District Pratapgarh, Uttar Pradesh. Pursuant to information, they reached at the house of accused Dalip Tripathi at village Shahpur. Accused Dilip could not be found in his house. His brother informed them that Dalip had come yesterday but he left the house without any information. Some persons gathered there. He asked about the house of Ashutosh @ Sonu and they told him the location of his house in village Shahpur. None of those persons were ready to go to the house of Ashutosh @ Sonu with them.
63. He further deposed that they all reached at the house of Ashutosh @ Sonu and met his mother. She told them that accused Ashutosh @ Sonu was available inside the house. Ashutosh @ Sonu was apprehended and arrested vide arrest memo Ex. PW-28/A. His personal search was conducted vide memo Ex. PW-28/B. His disclosure statement Ex.PW-28/C was recorded. Pursuant to his disclosure statement he pointed out his pant, which was hanging in his house. He took out Rs. 9500/- and one gold ring having nine pieces of diamond and produced the same before him. He disclosed that SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 31 of 77 some of the money was taken from the body of deceased and some money was earned by selling gold chain of deceased. The ring was belonging to the deceased. Two currency notes were in denomination of Rs. 1000/- and 15 currency notes were of Rs. 500/-. He sealed the ring in a pulanda with the seal of VVS. The seal was handed over to Head Constable Sanjeev. He seized the currency notes and the ring vide seizure memo Ex PW-28/D bearing my signatures at point A.
64. PW-28 Head Constable Sanjeev corroborated PW-29 deposing that on 19.06.2011, He along with PW-29 (Investigating Officer) and two constables namely Constable Mahender Kapoor and Constable Bawinder had gone to Village Shahpur, Police Station Kunda, District Pratap Garh (UP) in a private vehicle in connection with investigation of this case. They reached at the house of accused Dalip Tripathi, but he was not found there. Thereafter, they reached at the house of Sonu @ Ashutosh. He was found present at that house.
65. He further deposed that Investigating Officer inquired accused Sonu @ Ashutosh. Accused had confessed his involvement in the offence of this case. Investigating Officer arrested him vide arrest memo Ex. PW-28/A. The personal search of accused was also carried out vide personal search memo Ex. PW-28/B. Investigating Officer interrogated the accused and recorded his disclosure statement Ex. PW-28/C. Pursuant to his disclosure statement, he pointed out his pant, which was hanging in the house and he got recovered Rs. 9500/- cash along with one golden colour ring having 9 stones (nug). The currency notes were of Rs. 500/- in denomination except two notes of Rs. 1,000/-. Investigating Officer had sealed the cash money of Rs. 9,500/- and SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 32 of 77 ring in two separate pullandas and sealed the same with the seal of 'VVS' and seized the same vide seizure memo Ex. PW-28/D, bearing his signature at point A.
66. PW-28 and PW-29 have been cross-examinated by the accused persons but nothing have been come against the case of prosecution. Both the witnesses have stated in their respective cross examination that they went to Kunda, Pratapgarh in Indica car; that there were two rooms and a veranda in front of rooms in the house of accused Ashutosh; that the main door of said house was bolted from inside; that door was knocked and mother of accused Ashutosh opened the same; that accused Ashutosh and his mother were present there and after some time brother of the said accused reached there; that the pant from which the recovery was effected, was on the hanger (khuti) of the room; that ring was sealed in the veranda; that the serial number of the currency notes were not noted down; that no mark or initial were mentioned to distinguish them from other similar notes. Hence, both the said witnesses told in their respective cross-examination the same number of rooms and veranda in the said house of accused Ashutosh; the same place where pant was lying from which recovery was effected; the same number of person present at the house; same person who was come lateron there. They both have identified the accused Ashutosh Tiwari and currency notes of Rs 9500/-(Ex.MO-9/A-1 to Ex. MO-9/A-17 ) during trial. The identity of the said ring was not disputed as mentioned in the evidence of these two witnesses. I find no material contradiction/descrepancy in the deposition of said two witnesses in respect of arrest and recovery at his instance from his said house. Hence, it has been proved that accused Ashutosh Tiwari @ Sonu was arrested vide arrest memo Ex. PW-28/A from his house at village Shahpur near Kunda, District SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 33 of 77 Pratapgarh, Uttar Pradesh and pursuant to his disclosure statement currency notes of Rs. 9500/-(Ex.MO-9/A-1 to Ex. MO-9/A-17) and one gold ring having nine pieces of diamond were recovered from the pant lying on the hanger/khuti of the room of said house on 20.06.2011.
Recovery of two mobile phones of deceased at the instance of accused Deepak Kumar and Ashotosh @ Sonu from 'ganda nala' (drain)
67. PW-31 Inspector Ajay Sharma testified in this regard that on 20.06.2011, four days police custody remand of accused Deepak Kumar was obtained by him. On 21.06.2011 both accused namely, Ashutosh @ Sonu and jeweller were produced in the Court. The jeweller was demanded to judicial custody. Three days police custody remand of accused Ashutosh @ Sonu was obtained. Accused Ashutosh @ Sonu and Deepak Kumar disclosed that they could help in recovery of mobile phone of deceased which they threw in a ganda nala. He recorded disclosure statement of accused Ashutosh @ Sonu vide Ex. PW-31/A. On 23.06.2011, at the instance of accused Deepak Kumar and Ashutosh @ Sonu , two mobile phones of deceased which were thrown in the ganda nala, were recovered from ganda nala, adjacent to Brahamputra Complex , Sector 29, Noida, Uttar Pradesh with the help of two divers namely Sunil and Mohd. Sajim vide seizure cum pointing out memo of place of recovery Ex. PW-19/A bearing his signature at point-X.
68. He in his cross-examination stated that Ex. PW-19/A was prepared at the spot i.e. Ganda Nala and they left the police station at around 11:00 a.m. in official vehicle and reached at Brahamputra Complex at around 12:00 p.m.. The Ganda Nala is situated on the service road adjacent to Brahamputra SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 34 of 77 Complex. He took the divers from Kalindi Kunj and paid money to them. He denied the suggestion that divers were planted witnesses; that divers has never took out the mobile phones of the deceased from 'ganda nala' at the instance of accused.
69. PW-33 Inspector Ram Niwas testified that on 23.06.2011, the accused persons namely Deepak Kumar and Aushutosh Tiwari led the police party to the Nala (drain) near commercial complex, Noida from where the accused persons got recovered the two mobile phones that were robbed off from the deceased and thrown in the Nala, with the help of two divers. The recovery memo was prepared and exhibited as Ex. PW-19/A.
70. He in his cross-examination, stated that he along with Station House Officer/ Investigating Officer and accused Ashutosh Tiwari and Deepak Kumar departed from police station C. R. Park at about 02:30 p.m. in government gypsy. The divers were called by himself after reaching at the place of recovery. He had personally gone from Nala to Kalindi Kunj to take divers and it took hal an hour to return. Main road was at a distance of about 100 meters from the Nala. He denied the suggestion that Accused Ashutosh and Deepak had not pointed out the said nala as alleged; that no divers were called by him and pointing out memos in that regard were prepared in the police station itself; that divers were not joined and planted in this case.
71. PW-26 Head Constable Lile Singh deposed that On 23.06.2011, he along with Station House Officer Ajay Kumar, Sub-inspector Ram Niwas, another staff member and accused Sonu @ Ashutosh & Deepak had gone to SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 35 of 77 Kalandi Kunj from where two drivers were hired and then they had gone to Sector 29, Noida near Bharampura Market near drain (Nala). Both the accused persons pointed out the place in the Nala adjoining the road, pursuant to their disclosure to the effect that they had thrown two mobile phones belonging to Sh. V.K. Bansal, after robbing and killing him. With the assistance of divers namely Sunil and Jasim two mobile phones were taken out from the Nala. One mobile phone each was taken out by both the divers. Station House Officer Ajay Kumar prepared a seizure memo - cum-pointing out memo, which is Ex. PW-19/A, bearing his signature at point D. One public witness Ali, whose full name, he was not able to recollect had also witnessed the said memo.
72. He in cross-examination stated that on 23.06.2011, he left the police station at about 11:00 a.m. in government vehicle of Station House Officer and one private vehicle. Five police officials had gone to said drain at Sector 29, Noida. They reached at Noida at about 12:30 p.m.. The drain was near the main road. They parked the vehicle near drain. Police gypsy of Noida Police reached after about 30 minutes of their arrival. Two divers standing on the main road were hired by Station House Officer Ajay Kumar to accompany the police team to the drain. Divers took half an hour in the drain. Mobile phones were not sealed. Divers were dropped at Kalandikunj. Investigating Officer had prepared the seizure memo in his own writing. Investigating Officer Ajay Kumar, Sub-inpsector Ram Niwas, himself and two other police officials went to Noida. Water in drain was around 3-4 feet deep. The mobile phones were taken out by hands by both the divers.
73. PW-19 Ali Mohd in his examination in chief has testified that he was SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 36 of 77 residing at G-95, Abu Fazal Enclave, Jamia Nagar, Delhi. He was car mechanic and having a counter at Brahamputra Commercial Market, Sector- 29, Noida. He does not remember the exact date. As far as he could recollect, in the afternoon hours, in June 2011, police officials had come along with two accused persons in the market at Brahamputra Commercial Market, Sector-29, Noida. There is a Nala ( drain) near market and the place where his counter is situated. At the instance of the accused persons, two divers who had come along with the police official, had taken out two mobile phones from the Nala which were seized by the police officials. He also identified his signature at point A on Ex. PW-19/A on pointing out cum seizure memo of mobile phones.
74. He in cross-examination stated that police officials visited Brahamputra Commercial Market around 01:00 to 01:30 p.m. and remained there for about one and half hours. It took half an hour to the divers in locating the mobile phones from the nala. Many onlookers had gathered at the spot to see the incident and police but no one was agreeing to join the investigation but he accepted the request of the police to join the investigation. There were no police official of Noida Police and the police officials were from Delhi Police. He denied the suggestion that he was deposing falsely or that he was deposing at the instance of police.
75. PW-21 Sunil in his examination in chief has testified that he was diver (gotakhor) by profession. He did not remember the month but the date was 23 of the year of 2011, on that day he along with Jasim were taken to Ganda Nala in Noida by their thekedar and the police. Two persons were accompanied with the police. The said two persons had pointed out the place SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 37 of 77 in the Ganda Nala by throwing the piece of stone where they had thrown the mobile phones. He along with Jasim jumped inside the Ganda Nala and took out one mobile phone each and handed over the same to police. The police seized the same vide seizure memo Ex. PW-19/A bearing his LTI at point B. He did not remember the sector number where from they took out mobile phones from Ganda Nala. He did not remember the faces of those two persons as three- four years had passed since then but as far as recollected their names were Deepak and Rahul.
76. He in cross-examination made on behalf of accused Rakesh Kumar and Ashutosh @ Sonu has stated that he was doing the work of diver since last five/six years and name of his thekedar is Bhola. In cross-examination conducted on behalf of accused Deepak Kumar and Dalip Tripathi, he stated that police had told him the said two persons as Deepak and Rahul; that he had deposed the name of Deepak and Rahul as same were told to him by Jasim; that he had not seen the faces of those two boys at the time of taking out mobile phone from the drain; that those boys had only come out of the police van and had thrown stone in the drain to point out the place where mobiles were thrown by them.
77. PW-22 Mohd. Jasim in his examination in chief has testified that he was diver (gotakhor) by profession. Earlier he was residing at B-52, Kalindi Kunj, New Delhi. On 21.06.2011, he along with Sunil and thekdar Bhola were taken to Ganda Nala in Noida Sector-33 by the police. Two accused persons were accompanied with the police officials. At the instance of police they made efforts to search mobile phones from the Nala. He along with Sunil jumped inside the Ganda Nala and took out one mobile phone each and handed over SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 38 of 77 the same to police. The police seized the same vide seizure memo Ex. PW- 19/A bearing his LTI at point C. The name of the said two boys who were accompanying with the police were Sonu and Deepak. He could make efforts to identify those two persons, if produced before him. He pointed out towards accused Deepak and Dalip as the persons who were similar to the persons present with the police at the time when they had taken mobile phones from the drain.
78. He in cross-examination conducted on behalf of accused Rakesh Kumar and Ashutosh @ Sonu has stated that he was doing the work of diver since last about ten years. Some public persons and shopkeeper had gathered near the spot. He denied the suggestion that he had not gone inside the drain or took out any mobile phone. Police had obtained his thumb impression on one paper on which something was written and police had not read over the contents of the said paper to him at the time of his signature. In cross- examination conducted on behalf of accused Deepak Kumar and Dalip Tripathi, he stated that he had not told the name of Deepak Kumar and Rahul to other diver Sunil. He had seen the faces of those two boys at the time of taking out mobile phone from the drain. Those boys had thrown stone in the drain to point out the place where mobiles were thrown by them. The time when they took out the mobile phone from thr drain might be 02:00/02:30 p.m.. He denied the suggestion that those boys had not pointed the place by throwing stone in the drain.
79. The disclosure statement of accused Deepak Kumar (Ex. PW-23/C) was recorded on 20.06.2011 by Inspector Ram Niwas (PW-33) in which he disclosed that he could point out the place where they have thrown the mobile SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 39 of 77 phones of Sethji (deceased). The disclosure statements of accused Ashutosh Tiwari were recorded two times, first said statement (Ex. PW-28/C) was recorded on 20.06.2011 by Assistant Sub-inpsector Ved Vir Singh (PW-29) and second statement (Ex. PW-31/A) on 21.06.2011 by Inspector Ajay Sharma (PW-31). In both said disclosure statements, accused Ashutosh Tiwari had disclosed that he could point out the place where they have thrown the mobile phones of Sethji (deceased). Accused Deepak and Ashutosh led the police officers i.e. PW-26, PW-31 and PW-33 to the drain near Commercial Complex, Noida where they had thrown the two mobile phones of deceased and from where two mobile phones were recovered with the help of divers Sunil (PW-
21) and Jasim (PW-22). Both the divers have deposed regarding pointing the place by two boys by throwing the stone, where they had thrown the mobile phones. They have also deposed regarding recovery of one mobile phone each by them. They both were called by the police officers ( PW-31 and PW-
33). One independent witness Ali Mohd (PW-19) has also deposed regarding recovery of two mobile phones from the said drain at the instance of two accused persons. This witness was a car mechanic and having a counter at Brahamputra Commercial Market, Sector -29, Noida from where said drain was 20/25 ft..
80. The pointing out cum seizure memo of said two mobile phones Ex. PW-19/A is bearing the signatures/thumb impressions of Head Constable Lile Singh (PW-26), Ali Mohd.(PW-19), Sunil (PW-21), Jasim (PW-22) and Sub- inspector Ram Niwas (PW-33) as witnesses. And their signature upon said memo have been identified by all the said five witnesses during trial. Said memo goes to show that the mobile which was taken out from drain by diver Sunil was of make Nokia C E 0434 having IMEI No. 353792045720963 and SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 40 of 77 SIM Card was of Airtel and 8991101001183961356-H-1 was written on the SIM Card. And the mobile phone which was taken out from drain by diver Jasim was of make Nokia C E 0434, black colour, Model 2730-I, IMEI No. 359370038982587 and there was no SIM Card therein.
81. Accused Deepak Kumar and Ashutosh Tiwari have been correctly identified by PW-26, PW-31 and PW-33. It appears that PW-19 was not asked to identify the said two accused persons by the learned public prosecutor but in his deposition he mentioned the phrase 'two accused persons' which has some meaning. PW-21 had expressed his inability to identify the said two accused persons but he stated that as far as recollect their names were Deepak and Rahul. The name of Deepak has been rightly stated by him. PW- 22 has rightly mentioned name of said two accused as Sonu and Deepak but he had wrongly pointed out towards accused Dalip Tripathi who was stated by him similar to one of those two accused persons. But, he correctly pointed out towards accused Deepak. I find no material contradictions/discrepancies in the testimony of above mentioned said six witnesses and in this regard Judgment passed by Hon'ble Supreme Court in State of Madhya Pradesh v. Dal Singh & Ors., Criminal Appeal No.2303 of 2009 decided on 21.05.2013 can be referred wherein at para no. 7, it had been observed:
"So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, woing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 41 of 77 the time to occurrence.
The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of a statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrole the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, ie., which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited."
82. Hence, from the testimony of PW-19, PW-21, PW-22, PW-26, PW-31 and PW-33, it has been proved that two mobile phones both make Nokia C E 0434 were recovered from the drain, Brahamputra Commercial Market, Sector- 29, Noida, Uttar Pradesh on 23.06.2011at the instance of accused Deepak Kumar and Ashutosh Tiwari.
Arrest of accused Dalip Tripathy and recovery from him SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 42 of 77
83. PW-29 Assistant Sub-Inspector Ved Vir Singh has deposed that on 22.06.2011, Station House Officer had instructed him to make the search of accused Dalip. Pursuant to the said instruction, he along with Head Constable Sanjeev, Constable Mahender Kapoor, Constable Krishanan and one secret informer proceeded to village Shahpur, Kunda (UP) by a private vehicle. They reached on 23.06.2011 at village Shahpur. On inquiry, it was revealed that accused Dalip had gone to Faridabad to meet his some known person. He apprised the Station House Officer about this fact and then they returned back to Delhi. On the way, pursuant to secret information they stopped at village Pallah, near Nahar situated on the road leads from Badarpur to Ballabhgarh byepass. They were standing there and waiting accused Dalip. In the meantime, one person came from Pallah village side, he was pointed out by the secret informer who was standing at some distance. They apprehended that person on the pointing out by secret informer. On inquiry, the name of that person was revealed as Dalip wanted in this case. He made inquiry from Dalip. He arrested him in this case vide arrest memo Ex PW-28/H. His personal search was also conducted vide memo Ex PW-28/J. He recorded the his disclosure statement vide Ex PW-28/K. Accused Dalip had produced one gold ring after taking out it from left pocket of his wearing pant. The ring was having one piece of stone like diamond and stated that the same was belonged to deceased Vinod Gupta. He sealed the said ring in a cloth pulanda with seal of VVS and seized the same vide seizure memo Ex PW-28/L. The seal was handed over to Head Constable Sanjeev Kumar after use. Thereafter, they returned to Delhi. He handed over the case file along with the accused to the Station House Officer. The case property was deposited in Malkhana. The accused was got medically examined and then he was lodged in the lock up.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 43 of 77
84. In his cross examination conducted on behalf of the accused Deepak Kumar and Dalip Tripathi, he has stated that accused Dalip Tripathi was over- powered and caught by him along with PW-28 and rest of team was standing at a distance, they had waited for accused Dalip Tripathi at spot for about 15- 20 minutes. They have offered their search prior to conducting the search of accused Dalip Tripathi, however, he refused for the same. They had not informed the local police about the said proceedings in respect of accused Dalip Tripathi. The ring was recovered from the left pocket of wearing pant of accused Dalip Tripathi. He denied the suggestion that one Antim Kumar Tripathi, S/o Raja Ram Tripathi, R/o Village Shahpur, Police Station Kunda was lifted by him in Delhi and he was accompany him when he visited Village shahpur on 20.06.2011.
85. PW-28 Head Constable Sanjeev has deposed that on 22.06.2011, he again joined the investigation of this case. On that day, he along with Assistant Sub-inpsector Ved Vir Singh went to Village Shahpur, District Pratapgarh, Uttar Pradesh. On inquiry at the village, it was revealed that accused Dalip Tripathi had gone to Faridabad. Thereafter, they came back to Delhi. They went to near village Palla near Faridabad along with two public persons known to Dalip Tripathi. They were standing near the Nahar and in the meantime, at about 05:30/06:00 p.m., the said two persons had pointed out towards one person to be the accused Dalip Tripathi, who was coming from Palla Village. They apprehended the said person, whose name after inquiry, was revealed as Dalip Tripathi, who was wanted in this case. On the cursory search of accused Dalip Tripathi, one golden ring having one nug was recovered. Accused Dalip Tripathi was arrested in this case vide arrest memo Ex. PW-28/H. His personal search was conducted vide memo Ex. PW-28/J. SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 44 of 77 Rs. 100/- were found from the personal search of accused. Investigating Officer interrogated the accused and recorded his disclosure statement (Ex. PW-28/K). The golden ring having one big nug was sealed with the seal of VVS in a cloth pullanda and seized vide seizure memo Ex. PW-28/L. Seal after use was handed over to him. They brought accused Dalip Tripathi at Delhi and case property was deposited in the malkhana.
86. In his cross examination conducted on behalf of accused Deepak Kumar and Dalip Tripathi, he has stated that the ring was recovered from pocket of Dalip Tripathi's trouser. The Investigating Officer had offered search to him but he refused for the same. Two-three public persons had gathered at the spot of arrest, however no one was made witness of arrest. They had not informed Faridabad Police about conducting the said proceedings. They had gone to Faridabad in Innova Car which was arranged by the Investigating Officer. He denied the suggestion that they had already lifted one boy named Antim Kumar Tripathi who belonged to accused Dalip Tripathi's village and they had taken him to village Shahpur, Police Station Kunda with them and arrested accused Dalip Tripathi on his pointing out. He denied the suggestion that accused Dalip Tripathi was arrested from village Shahpur, Police Station Kunda, therefore, his mobile location was not placed on record.
87. Prosecution has examined PW-28 and PW-29 to prove the arrest of accused Dalip Tripathi and recovery of one golden ring from him. Both the witnesses have corroborated each other. They both stated that they went to village Shahpur, Kunda, Uttar Pradesh on 22.06.2011, reached there on 23.06.2011 but accused Dalip Tripathi could not found there and was stated to have gone to Faridabad and thereafter they came back to near village Palla, SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 45 of 77 Faridabad, accused Dalip Tripathi came there and was arrested and one golden ring was recovered from his possession. But there are some discrepancies in the testimony of witnesses. With regard to going to village Shahpur, District Pratapgarh, Uttar Pradesh from Delhi on 22.06.2011, PW-28 says that he along with PW-29 went there but PW-29 says that five persons including himself, PW-28, Constable Mahender Kapoor, Constable Krishanan and one secret informer went there. Further PW-28 says that they (himself and PW-29) along with two public persons known to accused Dalip Tripathi went to near village Palla, Faridabad and at the instance of said two persons, accused Dalip Tripathi was apprehended, whereas, PW-29 says that on pointing out by secret informer, said accused was apprehended. But these discrepancies are not materal because there is no effective cross-examination on the aspect of recovery of said golden ring from the accused Dalip Tripathi. Even no suggestion had been given to PW-28 that no said ring was recovered. Yes, general suggestion was given to PW-29 that nothing was recovered from accused Dalip Tripathi which was denied. But no other question regarding recovery of ring had been put to him on behalf of accused Dalip Tripathi. It has been found from cross-examination of said two witnesses that it had been tried to say on behalf of accused Dalip Tripathi that he was arrested from village Shahpur, Pratapgarh, Uttar Pradesh and not from near village Palla, Faridabad, Haryana. But question is why police officers will say that said accused was arrested from near village Palla, Faridabad instead of village Shahpur, Pratapgarh and what will be the benefit of showing wrong place of arrest of said accused. No question of benefit in showing the wrong place of arrest of said accused has been put to the said two witnesses. No benefit in showing the wrong place of arrest has been pointed out during the course of SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 46 of 77 argument. It is a matter of fact that accused Dalip Tripathi was arreted and since than he is in custody.
88. PW-28 and PW-29 have identified accused Dalip Tripathi during trial. The identity of ring was not disputed by the accused Dalip Tripathi and therefore same was not produced during the testimony of said two witnesses for identification as reflected from the testimony of said both the witnesses. Hence, from the testimony of PW-28 and PW-29, it has been proved that accused Dalip Tripathi was arrested on 23.06.2011 from village Palla, Faridabad and a golden ring was recovered from his possession.
Arrest of accused Rakesh Kumar and recovery from him:
89. PW-29 Assistant Sub-Inspector Ved Vir Singh has deposed in this regard that pursuant to the disclosure of accused Ashutosh @ Sonu, they (he himself, PW-28, Constable Mahinder and constable Babinder) took him to Kunda where he pointed out one jeweller shop namely "Shardha Jewellers"
where he stated to have sold out the gold chain along with his associates namely Dalip and Deepak. He also pointed out accused Rakesh Soni sitting in the shop to whom he sold the gold chain of deceased in the sum of Rs. 60,000/-. he made the pointing out memo of the shop which is Ex PW-28/G1. He made inquiry from shopkeeper Rakesh Soni who told him that he had melted the said chain and sold out the gold after making some other jewellery item of the same. He arrested the accused Rakesh Soni/Kumar vide arrest memo Ex PW-28/E. His personal search was also conducted vide memo Ex PW-28/F. He had recorded the disclosure statement vide statement Ex PW- 28/G. He asked some public person to join the investigation but no person SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 47 of 77 could be prepared to join the same.
90. He further deposed that thereafter, they took both the accused persons Ashutosh Tiwari and Rakesh Kumar to Police Station, Kunda. He narrated the facts to the Station House Officer, Police Station, Kunda. He also apprised the Station House Officer, Police Station C. R. Park. He made the DD entry regarding the arrest of the accused in the Police Station Kunda. Both the accused persons were got medically examined. He recorded the statement of PW-28 and then they returned and reached at Delhi on 21.06.2011. He handed over the accused persons and all the documents with case file to the Station House Officer, Police Station C. R. Park. The case property was deposited in the Malkhana.
91. In cross examination conducted on behalf of the accused Ashutosh Tiwari and Rakesh Kumar, he stated that the distance between house of accused Ashutosh and shop of accused Rakesh is above 9-10 Kms. The said shop of accused Rakesh was situated in the market and other shops were also situated nearby the said shop. They left at about 2:30 p.m. the house of accused Ashutosh and reached at about 2:45 p.m. at the shop of accused Rakesh. There were no customer or employee at the shop, when they reached. When he was conducting the proceedings in the shop, 4-5 public persons came there. He had not recorded the statement of any public persons and shopkeepers. He had not asked their driver to join the investigation. No receipt book/memo was seized at the shop. Despite his search, no such receipt book was found in the shop. There was sign board of 'Shradha Jewellers' on the shop. He has not prepared the site plan of the shop. No police man from local beat box was called at the shop while they were SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 48 of 77 conducting the proceedings.
92. PW-28 Head Constable Sanjeev has deposed in this regard that pursuant to the disclosure statement, wherein accused Sonu @ Ashutosh had stated that he along with his associate Dalip Tripathi and Deepak sold one gold chain to the person sitting to the shop in the sum of Rs. 7,000/-, he had led them (he himself, PW-29, Constable Mahinder Kapoor and Constable Babinder) at the shop of ''Shardha Jewellers'' in Kunda Town and pointed out the said shop and the persons sitting over there. The name of the person sitting on the shop was revealed after inquiry as Rakesh Kumar.
93. He further stated that Investigating Officer (PW-29) made enquiries from Rakesh Kumar and arrested him in this case vide arrest memo Ex. PW- 28/E. His personal search was conducted vide memo Ex. PW-28/F. PW-29 interrogated accused Rakesh Kumar and recorded his disclosure statement Ex. PW-28/G. He disclosed that the gold chain, which was sold to him by the accused persons had been melted. PW-29 had prepared pointing out memo of jewellery shop at the instance of accused Sonu @ Ashutosh which is Ex. PW-28/G1. Both the accused persons were got medically examined at Kunda Town and furnished the information in the concerned police station at Kunda. Thereafter, they returned to Delhi along with the accused persons.
94. In cross examination conducted on behalf of accused Rakesh Kumar, he has stated that at about 02:00 p.m., they went to the shop of accused Rakesh Kumar and only Rakesh Kumar was present when they reached there but after sometime, public persons were gathered at the said shop. Investigating Officer had not seized any documents i.e. receipt book etc SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 49 of 77 from there. Investigating Officer asked the public persons to join the investigation, but they refused. They had not gone to the house of accused Rakesh Kumar. The distance between the house of accused Ashutosh Tiwari and shop of accused Rakesh Kumar was about 10-12 km.
95. From the perusal of above mentioned two witnesses, it is clear that they have corroborated each other and they have identified the accused Rakesh Kumar during trial and I do not found any reason not to rely on their deposition and therefore, it has been proved that accused Rakesh Soni was arrested at the instance of accused Ashutosh Tiwari on 20.06.2011 from his shop (Shardha Jewellers) Kunda, Pratapgarh, Uttar Pradesh.
Test Identification Parade (TIP) of two rings
96. PW-31 Station House Officer Inspector Ajay Sharma has deposed that on 06.07.2011, judicial TIP of diamond rings was conducted. PW-33 Inspector Ram Niwas has deposed that on 06.07.2011, on the instruction of the Investigating Officer, the TIP of the recovered case property was got done by him.
97. PW-3 Ankur Bansal deposed that after a few days, police from C. R. Park informed him that they had apprehended two more persons in connection with their case and that some belongings of his father i.e rings had been recovered by the police and those items could be released to them by the court. He appeared in the Court of Metropolitan Magistrate and had identified two rings belonging to his father before the Metropolitan Magistrate. He had participated in the TIP proceedings. He identified his signatures at points-A of the TIP proceeding Ex. PW-3/J. He also brought said two rings which were SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 50 of 77 studded with diamond stones which are Ex. MO-2 and Ex. MO-3. Those rings were the same, which his father was wearing when he left their house on the night of incident. He identified his signatures on superdarinama regarding release of rings (Ex.PW-3/G) bearing his signature at point A. He in cross- examination denied the suggestion that he had already seen the case property in the police station before TIP proceedings.
98. PW-11 Sh. Prashant Sharma was ACJ/ARC/CCJ at the time of recording of his statement, who deposed that an application (Ex.PW-11/A) for conducting TIP of case property moved by the Investigating Officer of this case on 06.07.2011, was marked to him by Shri Munish Markan, learned Metropolitan Magistrate. He conducted TIP proceeding Ex. PW-3/J. In this case, Investigating Officer had produced complainant Ankit Bansal. He had asked the complainant as to whether he was able to identify the case property on which the witness told that he would able to identify the case property. Complainant had correctly identified the case property i.e. two rings of golden colour with diamond mentioned in the TIP proceedings which is already exhibited as Ex. MO-2 and MO-3. Certificate in this regard is at point C. The witness was not cross examined by the accused persons.
99. It is clear from testimony of PW-3, PW-11, PW-31 and PW-33 that an application of TIP (Ex. PW-11/A) was moved by PW-33 at the instruction of PW-31(Investigating Officer) and TIP proceeding (Ex. PW-3/J) was conducted by PW-11and PW-3 identified two rings of golden colour with diamond vide Ex. MO-2 and Ex. MO-3. Those rings were the same, which father of PW-3 was wearing when he left their house on the night of incident. Hence, it has been proved that complainant identified two rings of golde colour vide Ex. MO-2 and SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 51 of 77 Ex. MO-3 in TIP proceeding Ex. PW-3/J and those rings were the same, which his father was wearing, when he left their house on the night of incident on 17.06.2011.
Medical Evidence
100. PW-24 Doctor Hari Prasad, Senior Resident, Department of Forensic Medicine, AIIMS in his examination in chief has testified that on 24th June, 2011, at about 3:07 pm, one Dalip Tripathi S/o Sh. Onkar Nath as brought to hospital by the police for his medical examination. He examined Dalip Tripathi. He opined after the medical examination of Dalip Tripathi that there was nothing to suggest that he was incapable for performing the sexual intercourse under normal circumstances. He prepared the MLC Ex. PW-24/A in this regard, bearing his signatures at point A.
101. This witness has not been cross-examined by the accused persons. He clearly deposed that there was nothing to suggest that accused Dalip Tripathi was incapable for performing the sexual intercourse under normal circumstances. He has proved medical examination (MLC) of accused Dalip Tripathi as PW-24/A.
102. PW-32 Dr. Hansraj Singh who was posted as junior resident at department of forensic science, AIIMS testified that on 24.06.2011, one person namely Ashutosh @ Sony S/o Sh. Rajender Prasad aged 22 year male was brought by the police. He had examined the said person and found four injuries on the body of Ashutosh, which were (i) an abrasion of brown colour with scab of size 2 x 0.7 cm was present over right shoulder (ii) an abrasion SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 52 of 77 with brown colour scab of size 3 x 0.5 cm was present over left arm 2 cm above the elbow (lateral aspect) (iii) multiple abrasion of size 0.5 x 0.5 cm to 2x 0.5 cm with brown colour scab is present over extensor surface of elbow ( left side) and (iv) an abrasion with brown color scab was present over dorsal surface of index and middle finger base ( 0.5 x 0.5 cm each). He prepared the MLC Ex. PW-32/A.
103. In cross-examination, he stated that injuries were about three days old, but it can very from two to five days.
104. The prosecution has examined Doctor Hansraj Singh although the genuineness of document (Ex. PW-32/A) was not disputed and same was marked as Ex. C1 on 29.10.2014 as mentioned in the said document itself. Document/ MLC of accused Ashutosh Tiwari has been proved as Ex. PW-32/A (Ex. C-1 also) which shows/finds mention that there was nothing to suggest that accused Ashutosh was incapable for performing the sexual intercourse under normal circumstances
105. The genuineness of document i.e. MLC of accused Deepak was not disputed and same was marked as Ex. C-2 on 29.10.2014 as mentioned in the said document itself. Document/ MLC of accused Deepak has been proved as Ex. C-2 which shows/finds mention that there was nothing to suggest that accused Deepak was incapable for performing the sexual intercourse under normal circumstances.
106. Hence, from the testimony of PW-24, PW-32 and Ex.C-2, it has been proved that there were nothing to suggest that accused Ashutosh Tiwari, Dalip SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 53 of 77 Tripathi and Deepak Kumar were incapable for performing the sexual intercourse under normal circumstances.
Nodal Officer/Call Detail Records
107. PW-7 Arun Kumar Singh, Nodal Officer, had brought the record in respect of telephone no.8858858895, which at that time was belonging to Ms. Rajeshwari w/o Sh. Dharmender Pratap, r/o 23, Shahbaz Nagar, Laal Bagh, Shahjahanpur, Uttar Pradesh. He deposed that the Uninor Prepaid enrollment form is Ex.PW-7/A pertaining to the above named customer and the copy of her ID Proof i.e. Election ID is Ex.PW-7/B. The call detail records of the above phone number from the period 01.06.2011 to 30.06.2011 has been marked as Ex.PW-7/C (2 pages). All the call detail record is computer generated and authenticated for which he tendered a certificate u/s 65-B of Indian Evidence Act to this effect, which is Ex.PW-7/D.
108. In cross examination conducted on behalf of the accused Dalip Tripathi, Deepak Kumar and Rakesh Kumar, he has admitted that the CDR prepared on 11.09.2011 and handed over to the police on 12.09.2011 through e-mail shows that mobile no.8858858895 was issued to Shiv Shankar S/o Mahavir R/o 813, Devar Patti, Baghrai, Pratap Garh, UP and copy of the said e-mail is Ex.PW-7/D-1. As per record, since 04.04.2012, the said mobile no.8858858895 was issued to one Smt. Rajeshwari W/o Dharmender Pratap and therefore, inadvertently, he brought customer application form pertaining to Smt. Rajeshwari which is Ex.PW-7/A.
109. In the cross examination conducted on behalf of accused Sonu @ SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 54 of 77 Ashutosh Tiwari, he stated that since 06.06.2011, Shiv Shankar S/o Mahavir R/o 813, Devar Patti, Baghrai, Pratap Garh, Uttar Pradesh was owner of mobile no. 8858858895. The police officials were not present at the time of downloading the documents from the server by the Nodal Officer.
110. Hence, as per testimony of PW-7, since 06.06.2011, one Shiv Shankar was owner of mobile number 8858858895 and since 04.04.2012, the said mobile number was issued to on Rajeshwari. But said Shiv Shankar and Rajeshwari have not been examined by the prosecution. No other prosecution witness except PW-7 (nodal officer) has deposed regarding use of said mobile number in the present case. In disclosure statements of accused Ashutosh Tiwari and Dalip Tripathi, said mobile phone finds mention but same can not be taken into consideration against accused persons being only disclosure statements. The mobile phone in which said SIM number was used, has also not been recovered. Hence, the testimony of PW-7 does not help to the case of prosecution.
111. PW-13 Sh. Kaushik Ghoshal, deposed that he has brought the summoned record in respect of telephone number 9628469398 registered in the name of Sh. Arjun S/o Sh. Badri in the record of our company at Lucknow office. The Vodafone prepaid enrollment form is Ex. PW-13/A pertaining to the customer Arjun and the copy of his ID proof i.e. Voter ID card is Ex. PW-13/B. The call detail records of the above phone number from the period 01.05.2011 to 30.06.2011 are Ex. PW-13/C (22 pages). All the call detail record is computer generated and authenticated for which he tendered a certificate under Section 65 B of Indian Evidence Act to this effect, which is Ex PW-13/D. SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 55 of 77
112. He has also brought the summoned record in respect of telephone number 9873392591 registered in the name of Ajay Kumar s/o Sh. Raj Kumar in the record of his company at Delhi office. The Vodafone Prepaid enrollment form is Ex. PW-13/E pertaining to the customer Ajay kumar and the copy of this ID proof i.e. voter ID card is Ex. PW-13/F. The call detail records of the above phone number from the period 01.06.2011 to 19.06.2011 are Ex. PW- 13/G (4 pages). All the call detail record is company generated and authenticated for which he tendered a certificate under Section 65-B of Indian Evidence Act to this effect, which is Ex. PW-13/H. Cell ID Chart is Ex.PW-13/J.
113. In his cross examination, he stated that Cell ID Chart depicts tower code with the help of which along with the CDR, location of the mobile phone can be found.
114. No effective cross-examination of PW-13 has been conducted on behalf of accused persons. This witness has proved that mobile number number 9628469398 was registered in the name of one Arjun. He further proved the call detail record of said mobile number from the period 01.05.2011 to 30.06.2011 as Ex. PW-13/C and certificate under Section 65 B of the Indian Evidence Act as Ex. PW-13/D.
115. PW-17 Meena has testified that she knew the accused Deepak Kumar as he is the husband of her sister Seema. She did not remember the date, month and year. She is illiterate. About three years ago in the month of June or July, accused Deepak Kumar along with his sister Seema and himself had come to her house at Delhi. He stayed with them in her house overnight and on the next day, accused Deepak Kumar said to his wife that he was SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 56 of 77 going to meet with his friend and went away in the morning hours. He did not disclose name of his friend. Before leaving her house, accused Deepak had made call to someone from her mobile phone number. She had mobile no. 9873392591. On that day accused Deepak had not returned to the house. She or her her husband had not talked to any person on the mobile no.9628469398. She had told the police that she did not know to whom the said mobile no.9628469398 belonged. No other third person had used the said mobile phone other than Seema or accused Deepak.
116. PW-33 Inspector Ram Niwas testified that call details of the abducted person were analyzed and it came to notice that he had received the last call on 17.06.2011 in the morning from one cell phone. He did not recollect the number of cell phone but last two digits were 85 and this mobile phone pertained to service provider operating under the name and style of Uninor Company. The call details of this suspected number were also checked and holder of another cell phone having last four digit 9398 of TATA UP was found in touch with this number and the location of both these two cell phones was found to be in Old Delhi Railway Station on 17.06.2011. He conducted inquiry from the last cell ID of abducted person i.e TDI Mall, Apollo, where the abducted was having a site that was under construction.
117. He further deposed that on 19.06.2011, the technical investigation revealed that holder of cell phone number 9398 was in constant touch of a cell phone and the subscriber of this cell phone was found at Tilak Nagar. The address was verified and found correct. The detail of whereabouts of abducted person was not known and both the mobile phones were found initially at Pratap Garh, UP and it was suspected that the abduction was handy work of a SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 57 of 77 notorious criminal of Pratap Garh. Two constables namely Pushpender Kumar and Sunil Kumar were deployed at the address of the subscriber at Tilak Nagar and both were properly briefed.
118. Hence PW-31 has stated regarding phone number having last four digit '9398'. The mobile phone number 9628469398 is having last four digit '9398' and hence witness has deposed regarding phone number 9628469398. Further, I have already held that mobile phone G'NINE with IMEI No.352569041275593 and 352569041275601 with one SIM of Vodafone company having number 9628469398 was recovered from the possession of accused Deepak Kumar. The mobile number 9628469398 at the relevant point of time was not registered in the name of accused Deepak from whose possession the mobile phone having mobile number 9628469398 was recovered. It was expected from the prosecution to give clarification/explanation in this regard but no explanation has been come forward. But it is also true that people may use the mobile number which is registered in the name of other. In the present case, mobile phone G'NINE with one SIM of Vodafone company having number 9628469398 was recovered from the possession of accused Deepak Kumar and therefore, he was also expected to explain as to how and from whom he received said SIM of Vodafone company having number 9628469398. But, he has explained nothing in this regard in his statement under Section 313 of the Code. Hence, it has been proved that call detail records of mobile phone number 9628469398 which was recovered from the possession of accused Deepak, from the period 01.05.2011 to 30.06.2011 is Ex. PW-13/C.
119. From the testimony of PW-13, Kaushik Ghoshal, it has been proved SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 58 of 77 that telephone no.9873392591 was registered in the name of Raj Kumar; that call detail records of the said mobile number from the period 01.06.2011 to 19.06.2011 are Ex.PW-13/G. PW-17 Meena has proved that accused Deepak who is the husband of her sister Seema stayed with her in her house about three years ago in the month of June or July and on next day, accused Deepak before leaving her house had made call to someone from her mobile phone no.9873392591. PW-17 has also proved that she or husband had not talked to any persons on the mobile no.9628469398. As per PW-13 Kaushik Ghoshal phone, no.9873392591 was registered in the name of Raj Kumar but as per PW-17 Meena, said phone, no.9873392591 was being used by her. It was expected from the prosecution to give clarification/explanation in this regard but no explanation has been come forward. But it is also true that people may use the mobile number which is registered in the name of other. On analyzing the call detail records Ex.PW-13/G pertaining mobile no.9873392591, it shows that four calls were made from mobile no.9873392591 to mobile no.9628469398 on 19.06.2011. Mobile no.9628469398 was recovered from the possession of the accused Deepak Kumar and hence, accused Deepak Kumar had made said four calls from mobile no.9873392591 to mobile no.9628469398 on 19.06.2011. But it has not been clarified on behalf of the prosecution as to why accused Deepak Kumar had made said four calls from the mobile no.9873392591 to his mobile no.9628469398 on 19.06.2011. Further, the call detail records Ex.PW-13/G do not show any call from mobile no.9873392591 to mobile no.9971299772 or 997129792 which belonged to deceased. Hence, testimony of PW-17 Meena does not help to the case prosecution.
120. PW-20 R.K. Singh, Nodal Officer deposed regarding bringing the SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 59 of 77 summoned record in respect of telephone number 9971299792 registered in the name of Ankur Bansal S/o Shri Vinod Kumar. The Airtel Prepaid enrollment/customer application form is Ex. PW-20/A pertaining to the customer Ankur Bansal and the copy of his ID Proof (i.e. election voter card) filed along with application form is Ex. PW-20/B. The call detail records of the above phone number for the period w.e.f. 01.06.2011 to 18.06.2011 are Ex. PW-20/C (running into nine pages).
121. He had also brought the summoned record in respect of telephone number 9971299772 registered in the name of Vinod Kumar Bansal S/o Sh. Jai Narain. The Airtel Prepaid enrollment/customer application form is Ex. PW- 20/D pertaining to the customer Vinod Kumar Bansal and the copy of his ID proof (election voter with supporting documents) filed along with application form is Ex. PW-20/E. The call detail records of the above phone number for the period w.e.f. 01.06.2011 to 18.06.2011 are Ex. PW-20/F (running into 21 pages).
122. He had also brought the Cell ID Chart, which was taken on record and the same is Ex. PW-20/G. All the call detail record is computer generated and authenticated for which he tendered a certificate under Section 65B of Indian Evidence Act to this effect, which is Ex. PW-20/H.
123. PW-20 was cross-examined on behalf of accused persons but nothing has been come against the case of prosecution. Hence, it has been proved that mobile number 9971299792 was registered in the name of complainant Ankur Bansal. The call detail records of said mobile number for the period w.e.f. 01.06.2011 to 18.06.2011 has been proved as Ex. PW-20/C. Further, it SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 60 of 77 has also been proved that mobile number 9971299772 was registered in the name of Vinod Kumar Bansal (deceased). The call detail records of said mobile number for the period w.e.f. 01.06.2011 to 18.06.2011 has been proved as Ex. PW-20/F.
124. PW-30 Sh. Chander Shekar, Nodal Officer, Bharti Airtel Limited has testified regarding the summoned record brought by him in respect of telephone number 9559069976 belonging to Rama Rani W/o Sh. Raja Ram. The airtel prepaid enrollment form is Ex. PW-30/A pertaining to the customer Rama Rani and the copy of her ID proof ( Voter ID card) exhibited as Ex. PW- 30/B. The call detail records of the above phone number was not available in their CDR front-end Module system. He also furnished the certified true copy of Licence Agreement Ex. PW-30/C, bearing the stamp of their company and his initial at point A to show that record was archived only for one year.
125. Hence, as per testimony of PW-30, mobile number 9559069976 was belongings to one Rama Rani. But said Rama Rani has not been examined by the prosecution. No other prosecution witness except PW-30 (nodal officer) has deposed regarding use of said mobile number in the present case. In disclosure statements of accused Dalip Tripathi Kumar Tripathi, said mobile phone finds mention but same can not be taken into consideration against accused persons being only disclosure statement. The mobile phone in which said SIM number was used, has also not been recovered. The call detail records of said mobile number was not available in CDR front-end Module System because record was kept available only for one year. Hence, the testimony of PW-30 does not help to the case of prosecution.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 61 of 77
126. The circumstances/facts which have been established are that:-
(i) Vinod Kumar Gupta (deceased) had left his home i.e. House No.33, Masjid Mor, GK-II, New Delhi in his Corola car bearing number DL 4CNE 5237 at 08:30/09:00 pm on 17.06.2011 stating to family members that he was going to Jasola and would return within 1 ½ - 2 hours, but he did not come back by 11:00 pm.
(ii) At around 02:00 am in the night, PW-3 got a telephonic call from Police Station Greater Noida that aforesaid car was found abandoned near Kailash Hospital, Greater Noida.
(iii) PW-3 called some of his relatives and approached police station Chitranjan Park (C.R. Park) at about 03:30 am and lodged a missing report Ex.
PW-1/D-1.
(iv) PW-2 Head Constable Sube Singh received an information at 06:25 am on 18.06.2011 from the operator (JAVA 66) regarding missing of deceased and recovery of his vehicle from Noida and recorded said information in roznamacha at serial number 37 vide Ex. PW-2/A.
(v) The said Corola car bearing number DL 4CNE 5237 was found at Police Station Kasna, Greater Noida, Uttar Pradesh which was earliar found abandoned in front of Kailash Hospital.
(vi) The deceased along with accused Ashutosh Tiwari visited/stayed at Transit Lodge, ISBT, Sector 17, Chandigarh on 27.08.2009.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 62 of 77
(vii) Accused Deepak Kumar was arrested on 20.06.2011 and Rs. 6,500/- and a railway ticket were recovered from the right pocket of his pant.
(viii) The mobile phone G'NINE with one SIM of Vodafone company having number 9628469398 was recovered from the pant of accused Deepak Kumar.
(ix) The call detail records of mobile phone number 9628469398 which was recovered from the possession of accused Deepak Kumar, from the period 01.05.2011 to 30.06.2011 is Ex. PW-13/C
(x) 14 cigarette butts were recovered on 20.06.2011 from the House No. 156, Sector 92, Noida, Uttar Pradesh.
(xi) The dead body of deceased were recovered on 20.06.2011 at the instance of accused Deepak Kumar from the House No. 156, Sector 92, Noida, Uttar Pradesh.
(xii) Currency notes of Rs. 9500/-(Ex.MO-9/A-1 to Ex. MO-9/A-17) and one gold ring having nine pieces of diamond were recovered from the pant lying on the hanger/khuti of the room of house of accused Ashutosh Tiwari at village Shahpur near Kunda, district Pratapgarh, Uttar Pradesh on 20.06.2011.
(xiii) Two mobile phones both make Nokia C E 0434 were recovered from the drain, Brahamputra Commercial Market, Sector-29, Noida, Uttar Pradesh on 23.06.2011 at the instance of accused Deepak Kumar and SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 63 of 77 Ashutosh Tiwari.
(xiv) Accused Dalip Tripathi was arrested on 23.06.2011 from village Palla, Faridabad and a golden ring was recovered from his possession.
(xv) Accused Rakesh Kumar was arrested at the instance of accused Ashutosh Tiwari on 20.06.2011 from his shop (Shardha Jewellers) Kunda, Pratapgarh, Uttar Pradesh.
(xvi) Two rings of golden colour which were recovered from accused Ashutosh Tiwari and accused Dalip Tripathi were identified by complainant (PW-3) vide Ex. MO-2 and Ex. MO-3 in TIP proceeding (Ex. PW-3/J) on 06.07.2011.
(xvii) Those rings Ex. MO-2 and Ex. MO-3 were the same, which father of complainant (PW-3) was wearing when he left their house on the night of incident on 17.06.2011.
(xviii) There were nothing to suggest that accused Ashutosh Tiwari, Dalip Tripathi and Deepak Kumar were incapable for performing the sexual intercourse under normal circumstances.
(xix) Accused Ashutosh Tiwari, Deepak Kumar and Dalip Tripathi are resident of same village i.e., Shahpur, Police Station Kunda, Pratapgarh, Uttar Pradesh.
The offence punishable under Section 302 IPC SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 64 of 77
127. The case is based on circumstantial evidence. The principle of circumstantial evidence has been reiterated by Hon'ble Supreme Court in plethora of cases. In Sharad Birdichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Hon'ble Supreme Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved, and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
128. In Aftab Ahmad Ansari v. State of Uttranchal (2010) 2 SCC 583, Hon'ble Supreme Court held in the following words:
"In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the court should consider the total cumulative effect of all the proved facts, each one of which SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 65 of 77 reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be."
129. In Bodhraj @ Bodha & Ors v. State of Jammu & Kashmir, (2002) 8 SCC 45, Hon'ble Supreme Court has held at para no. 9 to 13:
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or facium probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 66 of 77 together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. It has been consistently laid down by the Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukum Singh v. State of Rajasthan, (1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, State of U.P. v. Sukhbasi, 1985 Supp SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. 1989 Supp (1) SCC 560.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 67 of 77 Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10 (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused:
(3) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else: and SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 68 of 77 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence ".
13. In State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."
130. The above said principle of circumstantial evidence has been reiterated by Hon'ble Supreme Court in State of Goa v. Sanjay Thakkran & Ors., (2007) 3 SCC 755; Nizam & Ors v. State of Rajasthan, (2016) 1 SCC
550.
131. The circumstances/facts which have been established are that Vinod Kumar Gupta (deceased) had left his home i.e. House No.33, Masjid Mor, GK- II, New Delhi in his Corola car bearing number DL 4CNE 5237 at 08:30/09:00 pm on 17.06.2011 stating to family members that he was going to Jasola and would return within 1 ½ - 2 hours, but he did not come back by 11:00 pm; that at around 02:00 am in the night, PW-3 got a telephonic call from Police Station SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 69 of 77 Greater Noida that aforesaid car was found abandoned near Kailash Hospital, Greater Noida; that PW-3 called some of his relatives and approached police station Chitranjan Park at about 03:30 am and lodged a missing report Ex. PW-1/D-1; that PW-2 Head Constable Sube Singh received an information at 06:25 am on 18.06.2011 from the operator (JAVA 66) regarding missing of deceased and recovery of his vehicle from Noida and recorded said information in roznamacha at serial number 37 vide Ex. PW-2/A; that the said Corola car bearing number DL 4CNE 5237 was found at Police Station Kasna, Greater Noida which was earliar found abandoned in front of Kailash Hospital; that PW-6 Constable Tanish Kumar took the photographs of said car vide Ex.PW-6/A-1 to Ex.PW-6/A-9; that the vehicle was seized vide seizure memo Ex. PW-4/A and thereafter the vehicle was brought to the police station C. R. Park and deposited in the Malkhana; that PW-3 gave a complaint to the police vide Ex. PW-3/A; that rukka Ex. PW-33/A was prepared by PW-33 and FIR was registered vide Ex. PW-1/A; that the deceased along with accused Ashutosh Tiwari visited/stayed at Transit Lodge, ISBT, Sector 17, Chandigarh on 27.08.2009; that Accused Deepak Kumar was arrested on 20.06.2011 and Rs. 6,500/- and a railway ticket were recovered from the right pocket of his pant; that the mobile phone G'NINE with one SIM of Vodafone company having number 9628469398 was recovered from the pant of accused Deepak Kumar and the call detail records of said mobile phone number from the period 01.05.2011 to 30.06.2011 is Ex. PW-13/C; that the dead body of deceased were recovered on 20.06.2011 at the instance of accused Deepak Kumar from the House No. 156, Sector 92, Noida, Uttar Pradesh; that two mobile phones both make Nokia C E 0434 were recovered from the drain, Brahamputra Commercial Market, Sector-29, Noida, Uttar Pradesh on 23.06.2011 at the SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 70 of 77 instance of accused Deepak Kumar and Ashutosh Tiwari; that accused Dalip Tripathi was arrested on 23.06.2011 from village Palla, Faridabad and a golden ring was recovered from his possession; that two rings of golden colour with diamond were identified by complainant (PW-3) vide Ex. MO-2 and Ex. MO-3 in TIP proceeding (Ex. PW-3/J) on 06.07.2011 and said rings were the same, which father of complainant was wearing when he left their house on the night of incident on 17.06.2011; that there were nothing to suggest that accused Ashutosh Tiwari, Dalip Tripathi and Deepak Kumar were incapable for performing the sexual intercourse under normal circumstances; that accused Ashutosh Tiwari, Deepak Kumar and Dalip Tripathi are resident of same village i.e., Shahpur, Police Station Kunda, Pratapgarh, Uttar Pradesh.
132. From these proved circumstances/facts, I am of the considered view that circumstances from which the conclusion of the guilt can be drawn have been fully proved and circumstances are of conclusive in nature. All the circumstances are complete and there are no gap left in the chain of evidence. The proved circumstances are consistent only with the hypothesis of the guilt of the three accused persons namely, Deepak Kumar, Ashutosh Tiwari @ Sonu and Dalip Tripathi and totally inconsistent with their innocence. Hence, prosecution has been succeeded to prove that accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi had committed the murder of deceased Vinod Kumar Gupta during the period between 17.06.2011 to 20.06.2011 at B- 156, Sector-92, Noida, Uttar Pradesh. Hence, prosecution has proved the charge of offence punishable under Section 302 read with Section 34 IPC against the accused Deepak Kumar, Ashutosh Tiwari @ Sonu and Dalip Tripathi.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 71 of 77 The offence punishable under Section 394 read with Section 34 IPC
133. As I held above that the circumstances inter alia which have been proved are that Vinod Kumar Gupta (deceased) had left his home i.e. House No. 33, Masjid Mor, GK-II, New Delhi in his Corola car bearing number DL 4CNE 5237 at 08:30/09:00 pm on 17.06.2011 stating to family members that he was going to Jasola and would return within 1 ½ - 2 hours, but he did not come back by 11:00 pm; that at around 02:00 am in the night, PW-3 got a telephonic call from Police Station Greater Noida that aforesaid car was found abandoned near Kailash Hospital, Greater Noida; that PW-3 called some of his relatives and approached police station Chitranjan Park at about 03:30 am and lodged a missing report Ex. PW-1/D-1; that the said Corola car bearing number DL 4CNE 5237 was found at Police Station Kasna, Greater Noida which was earlier found abandoned in front of Kailash Hospital; that the deceased along with accused Ashutosh Tiwari visited/stayed at Transit Lodge, ISBT, Sector 17, Chandigarh on 27.08.2009; that Accused Deepak Kumar was arrested on 20.06.2011 and Rs. 6,500/- and a railway ticket were recovered from the right pocket of his pant; that the mobile phone G'NINE with one SIM of Vodafone company having number 9628469398 was recovered from the pant of accused Deepak Kumar and the call detail records of said mobile phone number from the period 01.05.2011 to 30.06.2011 is Ex. PW-13/C; that the dead body of deceased were recovered on 20.06.2011 at the instance of accused Deepak Kumar from the House No. 156, Sector 92, Noida, Uttar Pradesh; that two mobile phones both make Nokia C E 0434 were recovered from the drain, Brahamputra Commercial Market, Sector-29, Noida, Uttar Pradesh on 23.06.2011 at the instance of accused Deepak Kumar and Ashutosh Tiwari; that accused Dalip Tripathi was arrested on 23.06.2011 from SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 72 of 77 village Palla, Faridabad and a golden ring was recovered from his possession; that two rings of golden colour with diamond were identified by complainant (PW-3) vide Ex. MO-2 and Ex. MO-3 in TIP proceeding (Ex. PW-3/J) on 06.07.2011 and said rings were the same, which father of complainant (PW-3) was wearing when he left their house on the night of incident on 17.06.2011. Accused Ashutosh Tiwari, Deepak Kumar and Dalip Tripathi are resident of same village i.e., Shahpur, Police Station Kunda, Pratapgarh, Uttar Pradesh.
134. If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery are said to have committed the offence punishable under section 394 IPC.
135. In the present case, it has been proved as held in previous para that accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi had committed the murder of deceased Vinod Kumar Gupta during the period between 17.06.2011 to 20.06.2011 at B-156, Sector-92, Noida, Uttar Pradesh. Rs. 6,500/- was recovered from the right pocket of pant of accused Deepak Kumar on 20.06.2011. Two mobile phones both make Nokia C E 0434 of the deceased were recovered from the drain, Brahamputra Commercial Market, Sector-29, Noida, Uttar Pradesh on 23.06.2011 at the instance of accused Deepak Kumar and Ashutosh Tiwari. A golden ring was recovered from the possession of accused Dalip Tripathi on 23.06.2011. Currency notes of Rs. 9500/-(Ex.MO-9/A-1 to Ex. MO-9/A-17) and one gold ring having nine pieces of diamond were recovered from the pant lying on the hanger/khuti of the room of house of accused Ashutosh Tiwari at village Shahpur near Kunda, district Pratapgarh, Uttar Pradesh on 20.06.2011.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 73 of 77
136. Currency notes of Rs. 9500/-(Ex.MO-9/A-1 to Ex. MO-9/A-17) are proved to have been recovered from the possession of accused Ashutosh Tiwari and Rs. 6,500/- are proved to have been recovered from possession of accused Deepak Kumar. But the prosecution has been failed to connect the said rupees to the crime of the present case.
137. A golden ring was recovered from the possession of accused Dalip Tripathi on 23.06.2011 and one gold ring having nine pieces of diamond were recovered from the pant lying on the hanger/khuti of the room of house of accused Ashutosh Tiwari at his instance on 20.06.2011. Said two rings had been identified by complainant (PW-3) vide Ex. MO-2 and Ex. MO-3 in TIP proceeding (Ex. PW-3/J) on 06.07.2011 and said rings were the same, which father of complainant (PW-3) was wearing when he left their house on the night of incident on 17.06.2011. Two mobile phones both make Nokia C E 0434 were recovered from the drain, Brahamputra Commercial Market, Sector- 29, Noida, Uttar Pradesh on 23.06.2011 at the instance of accused Deepak Kumar and Ashutosh Tiwari.
138. Hence, it has been proved that accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi in further of their common intention, in committing robbery of said two rings and two mobile phones, voluntarily caused hurt/death of Vinay Kumar Gupta during the period between 17.06.2011 to 20.06.2011 at B-156, Sector-92, Noida, Uttar Pradesh and committed the offence punishable under Section 394 read with Section 34 IPC.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 74 of 77 The offence punishable under Section 365 read with Section 34 IPC
139. This charge of offence of abduction under section 365 read with Section 34 was framed against accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi. Section 362 IPC provides that whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, he commits the offence punishable under Section 364 IPC. In the present case, it has not been proved that deceased was compelled by force or induced to go from any place and therefore, offence under Section 364 IPC has not been proved.
The offence punishable under section 411 IPC against the accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi
140. The charge for the offence punishable under Section 411 IPC was framed against the accused Deepak Kumar as he had got recovered Rs. 6500/- (including rupees received by him as his share by selling the stolen property golden chain). Further, the charge for the offence punishable under Section 411 IPC was framed against the accused Ashutosh Tiwari as he had got recovered Rs. 9500/- (including rupees received by him as his share by selling the stolen property golden chain) and one gold ring. Further, the charge for the offence punishable under Section 411 IPC was framed against the accused Dalip Tripathi as he had got recovered one gold ring.
141. I have already held that the prosecution has been failed to connect SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 75 of 77 the said rupees (Rs. 9500/- and Rs. 6500/-) to the crime of the present case. So far as recovery of said two rings and two mobile phones are concerned, I have already held guilty accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi for the committing the offence under Section 394 read with Section 34 IPC. Section 114 of the Indian Evidence Act, 1872 says that the court may presume the existence of any fact which it thinks likely to have happened being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Further, Illustration (a) thereof says that the court may presume that a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can not account for his possession. As I have already held guilty accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi for the committing the offence punishable under Section 394 read with Section 34 IPC, therefore, they can not be held guilty for the offence punishable under Section 411 IPC.
The offence punishable under section 411 and 201 IPC against accused Rakesh Kumar
142. There is only disclosure statements against the accused Rakesh Kumar for the offences punishable under Section 411 and 201 IPC. The gold chain has not been recovered. It has not been proved beyond reasonable doubt that accused Rakesh Kumar purchased a robbed article i.e. gold chain of deceased from the accused Ashutosh Tiwari and caused disappear the evidence by melting the said chain. Hence, Offences punishable under Section 411 and 201 IPC against the accused Rakesh Kumar have not been proved.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 76 of 77
143. In view of above discussion, I am of the view that prosecution has proved the offence punishable under Section 302 read with Section 34 IPC beyond reasonable doubt against the accused persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi. Further, prosecution has proved the offence punishable under Section 394 read with Section 34 IPC beyond reasonable doubt against the accused persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi. Hence, accused persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi are convicted for the offences punishable under Section 302 and 394 read with Section 34 IPC. But accused persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi are acquitted for the offence punishable under Section 365 read with Section 34 IPC. Accused Rakesh Kumar is acquitted for the offence punishable under Section 201 and 411 IPC. Accused persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi are acquitted for the offence punishable under Section 411 IPC.
Announced in the open court on 22.07.2017.
(Sanjeev Kumar) Additional Session Judge-05, South East District, Saket Courts, New Delhi SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 77 of 77