Delhi District Court
State vs Arvind Lal & Anrs. on 12 December, 2008
1
IN THE COURT OF SHRI SURINDER S. RATHI: ADDL. SESSIONS JUDGE
FAST TRACK COURT:ROOM NO.272:TIS HAZARI COURTS:DELHI
FIR NO: 442/1998
U/s : 364A / 302/201/120B/397/34 IPC
PS: SARAI ROHILLA
STATE vs ARVIND LAL & ANRS.
JUDGMENT
1 Sl. No. of the Case SC-5/2008
2 Date of Committal of case 15.3.1999
3 Received by this court on transfer 12/11/08
4 Name of the complainant Anil Kumar Jain
5 Date of commission of offence 08/10/98
6 Name of accused, parentage and 1.Arvind S.Lal S/o Sh. Shyam Lal R/o address 6I/1067, Sarojini Nagar, Delhi (declared Proclaimed Offender on 10.3.2006)
2.Bharat Khilania S/o Sh. Yad Ram R/o B-5.
INA, Colony, New Delhi ( In J/c but on bail in this case)
3.Sanjay Dass S/o Sh. Madhu Sudan Dass R/o C-13/A, Rama Park, Uttam Nagar, Delhi. (On Bail)
4.Rohit Bhatti S/o Sh. Ram Kant Bhatti R/o G-19, INA Colony New Delhi. (On Bail)
5.Pardeep Pillai S/o Sh. M.V. Pillai R/o D-
888, Laxmi Bai Nagar, New Delhi. (On Bail)
6. Ajay S. Lal S/o Sh. Shyam Lal R/o 161-D, Sector -IV, Pushpa Vihar Saket N, Delhi.
Discharged by Hon'ble High Court on 13.1.2000
7. Tarun Kumar S/o Sh. Yad Ram R/o B-5, INA, Colony New Delhi. (On Bail)
8. Khushi Ram R/o Village Dhakar Majara, PS Jasrathpur, District Etah, UP (Not yet chalaned ) 7 Offences as per chargesheet U/s 302/364A /201/120B/397/34 IPC 8 Plea of guilt Pleaded not guilty 9 Final order Accused Sanjay Dass, Tarun Kumar and Bharat Khilana ACQUITTED Accused Pardeep Pillai and accused Rohit Bhatti CONVICTED for offence punishable U/s 302/365/201 r/w 34 IPC.
10 Date on which order reserved 06/12/08 11 Date on which order announced 12/12/08 Contd/....
2BRIEF REASONS FOR DECSION
1. On 8.10.1998 at around 11.35 PM complainant Anil Kumar Jain reached police station Sarai Rohilla and lodged missing report of his son Manish Jain aged around 25 years. The information was reduced into DD No.16A wherein it was stated that he is living with his family at 41, Green Park Extension and runs a printing press at 308/6A , Shajada Bagh, opposite Daya Basti Railway Station. He reported that his son Manish who helps him in business, reached the printing press in his maruti car No. DL-4S-3946 at around 11.30 AM. He left the press at 1.45 PM in the after noon for Ashok Vihar and Maya Puri but he did not reached either of the places. After awaiting when Manish did not reach home, his this missing report was lodged by his father giving his description. The DD entry was marked to SI Ram Avtar for appropriate action.
2. On the next day i.e. 9.10.2008 complainant Anil Kumar Jain met SI Ram Avtar in the morning and gave a formal statement wherein he also apprehended that somebody might have kidnapped him with an intention to kill him. On this complaint FIR U/s 364 IPC was registered and investigation was carried on by SI Ram Avtar.
3. During the course of investigation All India Wireless Message was sent and Hue & Cry notice was issued. Telephone numbers of his relative were put under observation and photographs of Manish was flashed on television through Missing Persons Squad apart from getting his photo Contd/....
3published in the Police Gazette and leading newspaper. Unclaimed dead bodies were scanned and his maruti car was searched in all parking lots of Delhi as well as in the neighbourhood states but no clue was found. Hotels and guests houses were checked and reward was announced for the person who could give clue in this regard. In the process his friends were also interrogated.
4. During the interrogation it was revealed that on 8.10.1998 itself, at 1.57PM pager belonging to Manish having no, 962800437 received a massage from his friends accused Rohit Bhatti that he is waiting for him at liberty. It was also revealed that their employee at printing press namely Dinesh attended a call made by accused Rohit Bhatti to Manish before he left the place. Rohit was made to join investigation where in he allegedly conceded to have met Manish at Liberty Cinema in front of Juice shop run by witness Satish. As per prosecution when accused Rohit found the nose tightening against him , he got himself admitted in some hospital on 23.10.1998. Finally upon his discharge from the hospital on 5.11.1998 , Rohit was arrested in this case when he disclosed his involvement and that of his other accomplices /co- conspirators namely Arvind Lal, Sanjay Dass, Bharat Khilania, Pardeep Pilley and Khushi Ram. He is said to have disclosed that they wanted to extort money by way of ransom and for that reason only they kidnapped Manish but when in their captivity at B-150, Sector 8, Dwarka, Pappan Kalan, Manish tried to raise voice, they killed him and Contd/....
4dumped his body into a manhole on the ground floor in the house and subsequently from there his accomplices took out the body and buried it in front of the house.
5. Thereafter accused Pardeep Pillai was apprehended from the house of accused Rohit Bhatti was also arrested and on disclosure of Pardeep, accused Tarun and Ajay were arrested on the same day i.e. 5.11.1998. It was also disclosed that accused Sanjay Dass took away the shoes and gold chain of the deceased. Accused Arvind took the wrist watch and purse of the deceased while accused Pardeep Pillai took his pager and threw it after breaking it . It was disclosed by accused Bharat that he took the maruti car and parked it at Palam Air Port. In his disclosure, accused Pardeep threw light on the involvement of co-accused Tarun apart from other accused persons detailed by accused Rohit. During the investigation accused Rohit is shown to have pointed out the room on the first floor of the Dwarka property where Manish was murdered. Accused Pardeep Pillai pointed out the manhole/gutter apart from pointing the place where deceased was killed and the place where the body was buried. Accused Pardeep alongwith accused Ajay also pointed out the spot and got recovered Kassi / Phafwra (diging implement) used in burying the body. Accused Ajay vide separate memo pointed the house where the deceased Manish was killed and dead body was buried.
Contd/....
5
6. On the next day i.e. 6.11.1998 3 days police custody remand of the accused was taken and body of deceased Manish was exhumed in the present of local SDM and autopsy Surgeon. On 7.11.1998 production warrants were got issued for accused Arvind Lal, Bharat Khilania and Sanjay Das as they were in judicial custody in connection with a separate murder case. The body of deceased Manish was taken out on the pointing out of accused Pardeep and Ajay and it was got photographed and was identified by the complainant Anil Kumar Jain as the body of his son. Post mortem was done at spot itself. Then separate three days police custody remand of above three accused persons was taken after recording of their separate disclosure statements. During the investigation accused Sanjay Dass is shown to have got recovered gold chain and shoe of deceased Manish from his house. Accused Bharat Khilania is said to have got recovered the maruti car in question from Palam Air port general parking. The number of the car was found tempered. He also got recovered parking token of the car, issued to him from his house. Accused Arvind Lal got recovered purse of deceased Manish which had driving license of deceased Manish apart fro other visiting cards. He also got recovered wrist watch. All these properties were identified by the complainant Anil Kr. Jain who was witness to seizure of these articles.
7. During the trial statements of witnesses were recorded, scaled site plan was got prepared, exhibits were deposited with FSL laboratory, Contd/....
6documentary evidence was collected . Accused Khushi Ram who was absconding , was declared proclaimed offender. As per post mortem report, cause of death was asphyxia due to strangulation. After completion of investigation, chargesheet was filed for committing offence punishable U/s 302/364A/397/201/120B/34 IPC. After the documents of entire chargesheet were supplied to accused persons, case was committed for trial on 15.3.1999.
8. Charge in this case was framed by Ld. Predecessor on 15.9.99 for commission of offence punishable U/s 302/364A/201/120B against all the 7 accused persons to which all accused persons pleaded not guilty and claimed to be tried.
9. Initially the chargesheet was filed against seven accused persons including accused Ajay S. Lal while 8th accused Khushi Ram was proclaimed offender and was named in Column 2 of the chargesheet in red. Record shows that after framing of charge accused Ajay S. Lal who is shown to have been arrested on the basis of disclosure statement of Accused Rohit Bhatti and Pardeep Pilley and is shown to have pointed out the spot where deceased Manish was murdered apart from the place where his body was buried. He is also shown to have got recivered a phawra (a digging implement) on pointing out alongwith Pardeep Pilley. He was discharged by Hon'ble High Court vide detailed order dated 13.01.2000 in a revision preferred by him.
Contd/....
7
10.In this detailed order Hon'ble High Court discharged accused Ajay in the facts and circumstances of this case interalia on the ground that there was no eye witness and the entire case was solely based on circumstantial evidence. The state counsel stated that there was no evidence to show that Ajay was part of the conspiracy and the was charged only on the basis of his disclosure statement given to the police and pointing out memo of the spot.
11.To prove its case prosecution examined 27 witness in all. Out of the 27 prosecution witnesses, 15 witnesses namely PW1 Sh. Shekhar Anand, PW6 Yogender Kumar Jain, PW8 Satish Kumar, PW9 Krishna Mittal, PW10 Pawan, PW11 Sudesh Kumar, PW12 Ajay Kumar, PW13 Dinesh Kumar Sharma, PW14 Anil Kumar, PW16 Tara Chand, PW18 Aditya Bhardwaj, PW19 Ram Kishan, PW21 Arun Mehta, PW23 Krishan Kumar and PW24 Rita Duggal are public witnesses while remaining are formal police witness or medical witness apart from the SDM.
12.After conclusion of prosecution evidence, separate statements of all accused were recorded U/s 313 Cr.P.C whereby all the accused persons pleaded ignorance about the allegation of the prosecution and denied the same. They all pleaded innocence and claimed that they have been falsely implicated. Despite opportunity neither of the accused persons have examined any witness in defence.
Contd/....
8
13.I have heard Ld. Spl Addl. PP Sh. Mukesh Kaila for State and Ld. Counsel Sh. K. K. Manan for accused Rohit Bhatti, Ms. Shilpi Jain for accused Pardeep Pillai, accused Sanjay Dass through Amicus Curie Sh. Pankaj Kumar and Sh. R.D.Sharma for Bharat Khilani and Tarun Kumar other accused and have carefully perused the entire judicial record besides relevant case laws and statutory provisions.
14.At the onset it would be appropriate if the evidence brought by the prosecution on record is glanced.
15.PW1 HC Shekharanand was the MHCM of Police Station Sarai Rohilla during the relevant time on 5.11.98. He has accordingly proved the entry in the Malkhana Register no.19 as Ex. PW1/A to PW1/G.
16.PW2 is SI Mahesh Kumar draft man of Crime Branch. He has proved the scaled site plan Ex. PW2/A of the spot where the body of the deceased was recovered.
17.PW3 Ct. Pradhuan was posted as a photographer with District North , he has proved the photographs of the dead body taken by him. The negatives of the photographs and prints of photographs taken as Ex. PW3/1 to PW3/26. This witness identified the accused Pardeep as the person whose pointing out the dead body was dug out.
Contd/....
9
18.PW4 is ASI Ramesh he was Duty Officer at PS Sarai Rohilla on 8.10.1998 and he had recorded the complaint of the complainant Sh. Anil Kumar Jain vide DD No.16-A and he proved the same Ex. PW4/A.
19.PW5 ASI Veena Sharma was posted as Duty Officer at PS Sarai Rohilla on 9.10.1998 and she has registered the case FIR Ex. PW5/B on the basis of the ruqqa Ex. PW5/A sent by IO SI Ram Avtar.
20.PW6 Sh. Yoginder Kumar is father in law of deceased Manish. He joined the investigation with IO. He identified the accused Pardeep Pillai as a person on whose pointing out the body was recovered.
21.PW7 HC Anil was posted at PS Sarai Rohilla on 22.12.1998 and on that he had gone to Ansal Bhawan Nehru Place to obtain the floppy of details of deceased's pager no.96004937. He obtained the floppy and handed over the print out to the SHO, Sarai Rohilla. PW7 has also proved forwarding letter Ex. PW6/A , prints out Ex. PW6/B1 to Ex. PW6/B4 and floppy Ex. PW6/C.
22.PW8 is Satish Kumar who was running juice shop near Liberty Cinema, Rohtak Road. Although he failed to identity of the accused as the persons who came to his shop on the day deceased Manish died but he said that it was the day of Kaurvachauth, and after 3 days of Kaurvachauth, police came to his shop and made inquiry as to Contd/....
10whether Manish and Rohit had come to his shop to which he replied in affirmative. He admitted that he gave statement to the police and gave description of deceased Manish. He was put leading question by Ld. APP wherein he identified the photo of Manish being the same person who had come to his shop in a maruti car and that he was wearing check shirt and jeans. He denied the suggestion of defence that disclosed the names of accused Rohit and Pardeep Pillai to the police being the same person who had come on motor cycle to his shop.
23.PW9 Smt. Krishna Mittal identified the accused Arvind Lal and stated that he worked for her as a driver between the year 1991 to April 1996. She stated that she had sold the plot No-D-150, Pappan Kalan to Arvind which she earlier purchased through Arvind where deceased Manish Kumar was allegedly murdered and his body was buried. PW9 also deposed that she had handed over the papers as well as the possession of the plot to her driver Arvind and proved the same as mark X and mark Y.
24.PW10 Pawan Sharma employee of the Pager Service Company. He identified the signature of his Sr, Manager Amit Bhargva and stated that print out Ex. PW6/A, Ex. PW6/B1 to B4 were issued by his company.
25.PW11 Sudesh Kumar was working as sweeper at Subzi Mandi Mortuary Contd/....
11on 6.11.1998. He accompanied the police with Dr. Kulbhushan and Tara Chand to Pappan Kalan to exhume the body of deceased. He identified accused Pardeep being the same person on whose pointing out , the place was dug and one dead body was recovered. He also narrated the details of the clothes which deceased was wearing. He identified clothes worn by the deceased is shirt and jeans as Ex. P1 and Ex.P2 respectively and Ex. P3 as the cloth which was found around the neck of the deceased and Ex. P4 as the pair of socks.
26.PW12 is Ajay Kumar Jain paternal uncle of deceased. He deposed that on 8.10.1998 i.e. on Karvachauth day his family was to assemble at his house at H-46, Ashok Vihar for lunch. He received a call from Manish at 1.30 PM that he is going with some friends and so he will be reaching home late and thereafter he never head of Manish .
27.PW13 is Dinesh Kumar Sharma, employee of the complainant who attended the phone call of accused Rohit Bhatti. He identified the accused Rohit Bhatti in the court and stated that he was familiar with his face as well as voice. He gave details of receiving calls from accused Rohit Bhatti and subsequent departure of Manish Jain in the maruti car from the press.
28.PW14 is complainant Anil Kumar Jain father of deceased Manish. He has made detailed statement and narrated the sequence of the Contd/....
12events which unfolded that on 8.10.2008 when his son did not reach his grand mother's place at Ashok Vihar, he searched for him extensively but could not locate his whereabouts. Finally he lodged the missing report with PS Sarai Rohilla on the same day at about 8.00-9.00 PM. He deposed before the court that on the next day i.e. 9.10.98 he again went to PS Sarai Rohilla and lodged a formal FIR. He also stated that his employee PW Dinesh Kumar Sharma told him about receiving of telephonic call from Rohit Bhatti and his conversation with Manish. He also gave correct narration of the belonging which Manish was carrying with him when he left. He has proved the list of belonging vide Ex. PW14/A. He is shown to have witness the disclosure statement made by accused Rohit, Pardeep, Ajay and Tarun apart from witnessing the pointing out memo of the place of murder and place of disposal of dead body of deceased Manish. He also deposed that he witnessed the seizure memo of Phawra besides recovery of shoes, golden chain, purse , wrist watch, cash, token of the car parking of the pointing out of the accused persons.
29.PW15 is J.P. Kaul, Sub Post Master who has proved copy of saving account opened with them Ex. PW15/A and application of SHO to verify the copy of document Ex. PW15/B.
30.PW16 is Tara Chand another Sweeper of Subzi Mandi Mortuary who accompanied the police team and Dr. Kulbhushan to Pappankalan.
Contd/....
13He too identified the accused Pardeep being the same person on whose pointing out the digging work was done and body of deceased Manish was recovered.
31.PW17 Dr. K.Goel conduced the post mortem on the body of the deceased Manish Jain aged 25 years male and proved his report Ex. PW17/A by opining the cause of death was asphyxia consequent upon ligatures of strangulation.
32.PW18 Aditya Bhardwaj failed to depose on the lines of the prosecution story and as such was declared hostile and was cross examined by LD. Spl. PP with the permission of the court.
33.PW19 Ct. Ajmer Singh was posted at Sarai Rohilla on 16.11.1998 and on that day under the instruction of SHO he had gone to Mortuary to collect the sealed parcels from mortuary. He accordingly collected the sealed parcels with the seal of CMO from Dr. K. Goel and handed over the same to SHO which were seized vide Ex. PW 19/A.
34.PW20 Head Clerk Ram Kishan proved the record of the maruti car No. DL-4CF-3946 registered in the name of the deceased Manish Jain vide Ex. PW20/A.
35.PW21 is Dr. Madhu Mehra. As per prosecution case she is family doctor Rohit Bhatti who allegedly treated the injured hand of accused Contd/....
14Bharat Khilania. This witness was declared hostile as she did not identify either Rohit Bhatti or Bharat Khilania. On being put leading questions all that she stated that both of them might have come to her clinic but she stated that she cannot say in definite terms.
36.PW22 is SI Iqbal Singh from P.S. Sarai Rohilla. He joined the investigation with Inspector Jagjit Singh on 05.11.98. He proved arrested Memo Ex. PW 22/A and disclosure statement made by Rohit Bhatti as Ex. PW 22/B. Thereafter accused Pardeep Pilley was also arrested and he also proved arrested memo and disclosure memo of Pardeep Pillai as EX. PW 22/C and Ex. PW 22/D respectively. He further deposed that after these proceedings he alongwith SHO and other police officials went to the house of Tarun where he prepared arrested memo and personal search memo EX. PW 22/E. He also prepared Tarun's disclosure statement as EX. PW 22/F. Then police party alongwith all these three accused said to have visited Pushap Vihar house of accused Ajay Lal where he was arrested. EX. PW 22/G and EX. PW 22/H are personal search memo and disclosure statement respectively of Accused Ajay S. Lal. Then all the four accused were taken to B-150 Sector-8 Pappan Kalan house where the murder allegedly took place. Separate pointing out memos of Rohit Bhatti , Pardeep Pilley and Ajay S. Lal were prepared as Ex. PW 22/J to PW 22/ L respectively. There accused Tarun and Pardeep allegedly got recovered one phawra (digging implement) vide Memo Ex. PW 22/M . However perusal of memo EX.
Contd/....
15PW 22/M shows that it was accused Pardeep and Ajay who got the implement recovered.
37.He stated that he left two constable there for the protection of the spot. Accused Rohit is shown to have pointed out the house apart from pointing out his room on the first floor where Manish was reportedly murdered and the gutter where the body of Manish was initially dumped. Vide Memo Ex. PW 22/K accused Pardeep Pillai is shown to have pointed out all the above three things namely the house, the room and the gutter. He also pointed out the spot where on 09.10.98 the body was removed from the gutter and was buried in the earth. Vide Memo EX. PW 22/L accused Ajay S. Lal pointed out the place which was already pointed out by accused Rohit and Pardeep on the next date i.e. 06.11.98. He again proved Ex. PW 22/M and Ex. PW 22/N which are pointed out and seizure memo of phawara. He joined the investigation on the next date i.e. 06.11.98 as well. He stated that three days police custody remand of all the four accused was taken. He deposed that SHO requested the SDM Kotwali to accompany the police party . They reached the spot alongwith four accused for exhumation of the body, apart from mortuary staff and doctor. There accused Pardeep and Ajay pointed out the place where the body was found and it was dug. The dead body was handed over to the relatives of deceased after its identification and after the same was got post mortemed.
Contd/....
16
38.He then joined with investigation team on 07.11.98. He witnessed disclosure statement of Accused Arvind, Bharat and Sanjay who were arrested in pursuance of production warrants issued against them and their police custody remand was sought. Separate pointing out memos of the spot were prepared from these three accused as Ex. PW 22/O to Ex. PW 22/S then accused Sanjay is said to have got recovered gold chain with pendant and shoes at his Uttam Nagar's house which were seized vide memo EX.PW 22/T. Then accused Arvind Lal is said to have taken the police party to his Sarojini Nagar House and driving license alongwith some visiting cards and designer brod wrist watch belonging to Manish were seized by Memo Ex. PW 22/U.
39.On the next date i.e. 08.11.98 accused Bharat is said to have taken police party to domestic airport general parking from where he got recover Maruti Car No. DL-4CF-3346 which was seized by Memo Ex. PW 22/U. The copy of the register of the parking contractor seized by Ex. PW 22/W. The photocopy of the entry in register is Mark PW 22/A. Then Bharat Khilania is said to have led the police party to his house at INA Market where he got recovered parking token vide Memo Ex. PW 22/X. Witness identified all the accused persons. Ex. PW 22/Y is sample blood of all the accused persons while EX. PW 22/Z is a memo by which certain exhibits were taken into possession on 07.11.98. He identified the case property i.e. phawra as Ex. P-7, shoes as EX. P-8, Gold Chain Contd/....
17having Pendant figured (M) as Ex. P-9, Match Box as Ex. P-10, Purse as Ex. P-11, DL as Ex. P-12, Wrist Watch as Ex. P-13 and visiting cards as Ex. P-14 to Ex. P-17.
40.He was cross examined at length. He stated that house of Sanjay Dass at Rama Park, Uttam Nagar is located in a populated are. Similarly he stated that at the time of seizure of car, wrist watch and purse no independent witness was joined. He denied the suggestion that no recovery was collected from the accused persons or accused were falsely implicated.
41.PW- 23 is Krishan Kumar supervisor of the Palam Domestic Airport parking. He deposed that on 08.11.98 SHO PS Sarai Rohilla had come there and seized Car No. DL-4CF-3346. He deposed that police informed him the correct registration No. of Car as DL-4CF-3946. Although he stated that police had brought two persons there but he could not identify either of the accused as those persons who were brought there. He also stated that in his presence accused persons did not point out the said car. He proved the copy of register as Ex. PW 23/A which is earlier marked as Ex. PW 22/A. Computerised Car Parking receipt is Ex. PW 23/B and the token issued for the said vehicle is Ex. PW 23/C. Ex. PW 23/D is slip of taking out the vehicle out from parking . Ex. PW 23/E is notice given by police to him to produce relevant documents. Memo Ex. PW 22/W is seizure memo of the documents Contd/....
18which were brought by him. He was declared hostile and despite suggestion he could not identify the accused.
42.PW-24 is Rita Duggal, sister-in-law of accused Sanjay Dass. he has proved seizure memo Ex. PW 24/C. She also proved photocopy of the GPA and will of Rama Park, Uttam Nagar House of Sanjay Dass seized vide Memo Ex. PW 24/A and Ex. PW 24/B respectively.
43.PW-25 is SI Ram Avtar. He joined investigation with the IO. He deposed all the lines of PW-22 SI Iqbal. He said that on 08.10.98 complainant Anil Kumar Jain came their PS to lodge a report with regard to missing of his son Manish Jain. On the next date i.e. 09.10.98 he again came to the PS and got a statement recorded on the basis of which FIR was registered. He has proved rooka and his endorsement Ex. PW 25/A. He said that on 09.10.98 accused Rohit Bhatti was called at the P.S. and during the interrogation Rohit Bhatti conceded that he met deceased Manish with co accused Pardeep Pilley near Liberty Cinema apart from stating the telephonic conversation and pager message. Rohit Bhatti also conceded regarding having juice together from the shop of PW-8 Satish Kumar. He stated that on 23.10.98 accused Rohit Bhatti himself get admitted in Mahindera Hospital, Green Park. He remained there upto 02.11.98 but when called to PS he got admitted again on 03.11.98 and got discharged on 04.11.98. Finally on 05.11.98 investigation was taken over by inspector Jagjeet Singh. Apart Contd/....
19from identifying the accused persons he identified case property. He deposed that he deposited the exhibits with CFSL Lodhi Road.
44.In his cross examination he stated that he did not serve any notice at the time of interrogation of accused Rohit in the second week of October,1998. He told that accused Rohit was arrested on 05.11.98 at 2PM and Pardeep Pillai at 3:15 PM. He stated that Rohit Bhatti was the first person to point out the house where Manish was got murdered while Pardeep Pillai was the first to identify where the dead body was buried apart from pointing out the house.
45.PW-26 is Chandrakar Bharti, SDM, of Kotwali. He stated that on 06.11.98 he was posted as SDM, Kotwali but he attended the exhumation proceedings as link SDM. He stated that he reached the spot at Pappankalan where police was present with two accused persons with one having name Pillai.
46.PW-27 is IO Inspector Jagjeet Singh. He deposed on the lines of PW-25 SI Ram Avtar Singh. In his deposition he detailed each and every step taken by him during the course of investigation. He proved arrest Memo of accused Rohit, Pardeep, Ajay and Tarun made on 05.11.98 as Ex. PW 22/A to D respectively. He proved site plan of ground floor Ex. PW 27/E and first floor of the house No. B-150, Sector-8, Dwarka as Ex. PW 27/F respectively. Ex. PW 27/G is the application moved for production Contd/....
20of remaining three accus, while Ex. PW 27/H is application for seeking permission for the interrogation. He collected CFSL report and place the same on record which is Ex. PW 27/M1 to M10. He identified accused and case property in the court.
47.In his cross examination he stated that in the site plan he has not shown the place from where fawara was recovered. He stated that during the investigation he did not come to know if any ransom call was made to the family of the deceased at all. He stated that he did not plac the list of articles belonging of Manish on chargesheet.
48.As per forensic report human blood Group "A" was found on the wall of first floor room where the accused was allegedly murdered. The blood was found in the gutter apart from clothes of Manish and earth of the pit from where the body was dug out.
49.While opening his arguments it is stated by Ld. Special PP Sh. Kalia that there is no eye witness in this case and that it is wholly based on circumstantial evidence. Before the evidence available record is scanned to assess the prosecution case it would appropriate if the important land mark judgments regarding the murder trial based on circumstantial evidence are looked into the basic legal proposition in this regards are:-
Circumstantial Evidence:- (1) The circumstances from which the Contd/....21
conclusion is drawn should be fully proved and the chain should be complete. (2) The circumstances should be conclusive in nature. (3) All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. (4) The circumstances should, exclude the possibility of guilt of any person other than that of the accused.
In AIR 1963 SC 74 Hon'ble Supreme Court observed , " Circumstantial Evidence means communication of facts creating a network from which there is no escape for the accused because the facts taken as a whole do not admit of any inference except the guilt of the accused."
In AIR 1967 SC 520 Hon'ble Supreme Court observed , " Chain of circumstances must be complete. Conjecture or suspicion must not take place of legal proof."
In AIR 1967 SC 2474 Hon'ble Supreme Court observed , " Circumstantial evidence must be so complete as to exclude every hypothesis other than the guilt of the accused."
51.In case titled " Geejaganda Somaiah Vs. State of Karnataka" AIR 2007 SC 1355 Hon'ble Supreme Court observed, " The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:
Contd/....22
The circumstances from which the conclusion of guilt is to be drawn should be fully 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. The circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved; and 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."
52.It would be hand if the basic ingredients of murder are reproduced.
53.Murder U/s 300 IPC reads as under:
Murder:- "Except" in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly:- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly:-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature Contd/....23
to cause death, or Fourthly:- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
53.The three basic ingredients U/s 302 runs as under:
Ingredients of offence:- The essential ingredients of the offence under sec. 302 are as follows:-
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done-
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
54.As far as Ingredient No.1 i.e Death of a human being was caused, is concerned , prosecution has brought both, ocular and documentary evidence on record. As per PW-17 Dr. K. Goel who was part of the team which exhumed the dead body on 06.11.98 he conducted post mortem on the spot and proved post mortem report as Ex. PW 17/A. Contd/....
24According to which deceased died of Asphyxia upon strangulation. He could see ligature marks on the neck along with a cotton strip apart from sharp injury. He disclosed the time since 29 days. The dead body was identified as that of Manish Jain by his father namely PW17 Sh. Anil Kumar Jain vide identification statement Ex. PW 17/6 and his father in law PW6 Yogender Kumar Jain . The death report Ex. PW 17/I was prepared by IO and as per brief facts Ex. PW 17/4 and Ex. PW 17/7 dead body was that of Manish. Moreover it is not the case of defence that dead body does not belong to Manish and no suggestion to that effect was given on behalf of either of the accused. As such it can be concluded that dead body exhumated was that of Manish Jain who was murdered by way of strangulation.
55.As far as ingredient No. 2 & 3 are concerned, case set up by the prosecution is that deceased Manish was kidnapped for ransom by all the accused persons in furtherance of their conspiracy and on 08.10.08 he was murdered at B1/150 Sector8, Dwarka.
56.In the case in hand, charge was initially framed against seven accused persons out of the total 8 accused since Accused Khushi Ram was declared P.O. Charge was framed on following four contents:
1.Substantive offence of conspiracy to commit murder under 120 B IPC,
2.Offence of kidnapping ransom under conspiracy punishable under section 364 A IPC r.w. 120 B IPC Contd/....25
3.Offence of committing murder under conspiracy i.e. 302, 102 B IPC
4.Offence to cause disappearance under conspiracy i.e. 201, 120 B IPC.
57.At the onset I shall deal with the charge of kidnapping for ransom under conspiracy. The offence of kidnapping for ransom 364 A IPC is reproduced hereunder for their evidence.
Section 364 A IPC runs as under:
Kidnapping for ransom, etc. Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or (any foreign State or international intergovernmental organisation or any other person)to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
58.In case titled Netra Pal Vs. State 2001, Cr. LJ AIR 1669, " Accused was found guilty U/s 365/363. But on the question of demand of ransom attracting section 364-A, it was found that the accused wrote a letter who kept it in his pocket. He did not send it to anybody. He was found not guilty U/s 364 A."
Contd/....
26
59.The plain reading of this Section shows that so as to attract punishment under this offence,prosecution is supposed to prove that the person was kidnapped or abducted and it was done to compel any other person to pay ransom. While opening his arguments it is submitted by Ld. Special PP Sh. Kalia that the objective of the accused persons in the case in hand was to kidnap deceased Manish Jain and seek hefty amount from his family members as deceased belong to affluent family. He however concedes that there is nothing on record to show if any ransom call or demand was ever made from the side of the accused persons. Neither any of the family members of deceased Manish including his father PW 17 Anil Kumar Jain & his parental uncle stated so in their statement nor it is mentioned in the chargesheet. PW- 14 Anil Kumar Jain has stated in his cross examination dated 22.02.03 that he never received any telephone or threat call prior to the incident.
60.Similarly IO of this case PW-27 Inspector Jagjit Singh in his cross examination dated 24.05.04 conceded that during his investigation it was not revealed that accused persons had made any ransom call to the family of the deceased. As such admittedly there is nothing on record to show if any call for ransom was ever made by either of the accused persons. In view of this admitted factual positions prosecution is legally debarred from claiming it to be a case of kidnapping for ransom. I have no hesitation in concluding that prosecution has failed Contd/....
27to prove the necessary ingredients of offence U/s 364 A IPC. The story of kidnapping came on record only from the disclosure statement made by Accused Rohit as EX. PW-22/B, Pardeep Pilley as Ex. PW 22/D, Sanjay Dass Ex. PW 22/D, Bharat Khilania Ex. PW 22/ O and Arvind Ex. PW 22/n however all these disclosure statements given by the accused persons in custody to the police are hit by Section 25 of the Evidence Act.
61.Section 25 of Evidence Act runs as under:
Confession to police officer not to be proved No confession made to a police officer shall be proved as against a person accused of any offence.
In case titled State Vs. Anirudhsingh AIR 1997 SC 2480 Hon'ble Supreme Court observed:-
"The object of Section 25 is to ensure that the person accused of the offence is not induced by threat, coercion or force to make a confessional statement."
In other case titled " Kamal Kishore Vs. State (Delhi Admin 1997 (2) Crimes 169 (Delhi) Hon'ble High Court observed:-
" Confession made while in custody is not be proved against the accused as the privso to Section 25/26 of this Act which is not permitted unless it is made before a magistrate and also with the statement of the accused leading to discovery cannot be used against co-accused."
In AIR 1957 SC 737 , Hon'ble Supreme Court observed, Contd/....
28''Confession to police officer inadmissible." In other case reported as AIR 1960 SC 1125 Hon'ble Supreme Court observed, " Statement of accused made to police in course of investigation cannot be used for any purpose at an enquiry or trial in respect of any offence under investigation at the time when statement was made."
While referring to objecting of Section 25 of Evidence Act Hon'ble Supreme Court in his case titled "STATE VS. ANIRUDH SINGH" AIR 1997 SC 2480 held:
"The object of Section 25 is to ensure that the person accused of the offense is not induced by threat, coercion or force to make a confessional statement."
62.While explaining the scope of Section 25 Hon'ble Supreme Court in AIR 1960 SC 1125,1129 held, " Statement of accused made to police in course of investigation cannot be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when the statement was made."
63.Section 25 Hon'ble Supreme Court in AIR 1960 SC 1125,1129 held, " Statement of accused made to police in course Contd/....
29of investigation cannot be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when the statement was made."
64.Even though the ingredient of demand of ransom are not available on record but the allegation of abduction remains and as such the offence in this regard deserves to be assessed in details to see if any offence lesser to 364 A IPC is made out in facts and circumstances of this case. The next lesser offence is under 364 IPC of kidnapping or abduction in order to murder. As per charges framed against the accused persons it is stated that there was a conspiracy to commit the offence of murder or to put him in danger of murder but as per chargesheeted case of the prosecution the alleged conspiracy was just to demand money as ransom as borne out of the above mentioned disclosure statements of accused Rohit Bhatti, Pardeep Pilley and others. Neither in these disclosure statements nor in the statement of any other witness it has come on record that from the very inception the plan of the accused persons was to abduct deceased Manish in order to murder him. Since the prosecution has failed to prove that the accused kidnapped deceased Manish for murdering him. The facts emanating from the record indicates to offence U/s 365 IPC, which is reproduced here in under:
65.Section 365 IPC runs as under:
Kidnapping or abducting with intent secretly and wrongfully to confine person Whoever kidnaps or abducts any person with intent to cause Contd/....30
that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
66.As far as the ingredients of the offence of abduction with intention to wrongfully confine deceased Manish is concerned it has come on record in the statement of PW-14 Anil Kumar Jain who is also complainant of this case that Manish had left his house for the printing press at Rohtak Road on 08.10.98 at around 11 AM in his car No. DL4CF3946. He was supposed to join them at around 2:30 PM for lunch at Ashok Vihar house where grand mother of Manish resides. When Manish did not turn up at their Ashok Vihar house till 5:00 PM he inquired from his press employees and came to know that Manish left at around 1:45 PM itself. In his deposition another important witness of prosecution namely PW-13 Dinesh Kumar stated that he was working as Supervisor in the press and that on 08.10.98 he attended the call made by accused Rohit Bahtti but he knew as a friend of deceased Manish. After talking to accused Rohit as per the witness deceased Manish made a call to her grand mother's place at Ashok Vihar and then left the factory within 10-15 minutes in his car by stating that he would be back after 2 ½ -3 hrs. As per the prosecution this was the second last citing of deceased Manish. After this Manish is said to have gone to a juice shop at liberty cinema where he allegedly met accused Rohit Bhatti and Pardeep Pillai. Prosecution has examined PW-8 Satish Kumar who runs the juice Contd/....
31shop owned by his father where all the three allegedly had juice before they left for H.No. B-1/150,Sector-8 Dwarka where accused persons had allegedly arranged a girl for Manish.
67.The defence tried to assail the deposition of PW-13 Dinesh Kumar Sharma supervisor of the printing press by stating that prosecution has failed to prove on record by way of documentary evidence that he was actually serving there. It was argued on behalf of accused Rohit that PW-13 was never employed in the printing press and has been introduced only to create an evidence. This witness was cross examined at length wherein he stated that he was getting a salary of RS. 8,500/- per month and that he used to attend the telephone calls in the press. Although he has stated that there was no deduction of provident fund, gratuity and income tax and was not issued any salary slip but non availability of such service record cannot be allowed to be blown out of proportions. He was put questions about the topography of the accommodation where the press was installed and he gave all their replies apparently satisfactorily. The deposition of this witness appears to be quite natural and trust worthy when he states that Manish left the printing press after attending call of Rohit Bhatti. This fact is corroborated by the call received by PW12 Ajay Kr. Jain from deceased. He too left printing press at around 4:00 PM and came back on the next date at around 10-10:30 AM. As such the factum of receipt of call from accused Rohit Bhatti, who was correctly identified Contd/....
32by PW-13 Dinesh Kumar in the court stands proved on record. In this backdrop on 08.10.98 itself PW-14 lodged a missing report of his son with PS Sarai Rohilla Ex. PW-4/A. Formal FIR was lodged as Ex. PW-5/B under Section 364IPC on next day morning. Both these reports were lodged by PW-14 Anil Kumar Jain before he could have any conversation with PW-13 Dinesh. Had there been any intention of fowl play , the complainant PW-14 Anil Kr. Jain could have introduced the name of accused Rohit Bhatti in the FIR itself by referring to his conversation with Dinesh Kumar, Supervisor. Non mentioning of name of Rohit is rather indicative of the fact that the sequence of events are unfolding in a natural manner without any overlapping on fowl play.
68.As such I have no hesitation in concluding that PW-13 Dinesh Kumar is a natural and reliable witness of the prosecution. Another arguments made in this regard is that the deposition of PW-13 Dinesh qua identification of voice of caller as Rohit Bhatti should not be relied. In this regard it is observed that as per the evidence he had been attending calls of Rohit Bhatti previously as well and moreover when he received call of Rohit Bhatti on 08.10.98 about 1:45 PM accused upon being enquired disclosed his name as Rohit Bhatti himself. This witness had even met accused Rohit Bhatti as he was a friend of deceased Manish and had as such identified accused correctly in court during evidence. In this backdrop the plea of the defence that aid of scientific evidence should have been taken losses steam . Scientific Contd/....
33evidence of voice recognition is taken recourse to only in case where there is a questioned recorded voice and the same is to be tallied with the voice of any individual unlike in the case in hand. A very important aspect in this regard is that even though this witness stated on oath that Rohit and deceased Manish were friends, this fact friendship was never refuted by the defence. No suggestion was put to this witness in this regard. No suggestion of denial of friendship of accused Rohit Bhatti with deceased Manish was put even to PW-14 Anil Kumar Jain. It is not the case of the defence that they were not friends or that Rohit had no occasion or reason to call deceased Manish. Furthermore during the course of investigation it was revealed that after telephonic conversation with deceased Manish accused Rohit Bhatti also sent a pager message to the deceased on his Pager No. 9628004937 at 1:57 PM dated 8.10.98 having texted ''Rohit is waiting at Liberty as evident from document Ex.PW 6/A and /Ex.PW6/B and its annexures.
69.A witness from the pager service provider company M/s. DSS Mobile Communication Ltd. PW-10 Pawan Sharma was examined. Although and defence tried to underplay this documentary evidence by simply stating that since the print out does not contain the name of the sender or the telephone number from which the message was sent but sheer mentioning of name of accused Rohit itself is an indicative of the fact that message emanate from none other than accused Rohit Bhatti.
Contd/....
34Moreover, this important piece of evidence cannot be looked into inisolation but is to be read in conjuction with the call made by accused Rohit Bhatti to Manish short while ago at his printing press at 1:45PM. I do not find any force in the plea of the defence that this evidence is fabricated one for the simple reason that the entire print out available on record, shows minute by minute details of messages received on the pager before and after this message. Rather plain reading of these message shows the trauma through which the family of deceased Manish underwent during the hours and couple of days after Manish disappeared. Since the print out and details are proved by a public telephone communication service provider company, which is an independent company, the same cannot be discarded and disbelieved in the manner sought by the defence. This message fortifies the fact that Manish left his printing press to meet Rohit Bhatti at liberty and he so went only on his asking.
70.The next sequence of event cited by the prosecution is meeting of the deceased Manish Jain with accused Rohit Bhatti and Pardeep Pilley on the juice shop run by PW-8 Satish Kumar. Before evidence of this witness is scanned it would be appropriate if we minutely consider a very important fact. At 2:30 PM Manish was supposed to attend lunch party at his paternal grand mother's place at Ashok Vihar being given by his wife Shalu on the day of Karva Chauth Vart. After taking to accused Rohit Bhatti instead of going to his Ashok Vihar house he is Contd/....
35shown to have rather gone to Liberty cinema after making a call to his Dadi's place that he would be late. It clearly shows that the allurement given to his was something more stronger than a family lunch. Although disclosure statement of the accused persons that they had allured and enticed deceased Manish with a girl cannot be read or relied legally but the manner and haste in which deceased Manish left his printing press to see Accused Rohit Bhatti at Liberty is indicative of some such like strong inducement.
71.In his deposition PW-8 Satish Kumar who runs a juice shop has not supported the prosecution case in its entirety in so far as he failed to identify the accused persons. However, he is still an important witness for the prosecution because he discloses the name of accused Rohit in his examination in chief and when he was put leading questions by Ld. APP, he did not deny that he gave the names of accused Rohit Bhatti and Pardeep Pilley, as the persons who came to his shop for having juice on the Karvachauth Day. He maintained that police had come to ask him about this incident and that he had acknowledged in affirmative that Manish and Rohit had come to have juice at his shop on the karvachauth day. He even accepted that police had come to him after three days of Karvachauth to make an inquiry and that he had told them that the person in the photograph which was shown to him had come in Maruti car and the other boys aged around 23-24 had come on motor cycle. Surprisingly even though this witness took Contd/....
36the name of accused Rohit Bhatti repeatedly, he was not put even a single question in the name of cross examination on behalf of accused Rohit. It is a settled legal preposition that when deposition of a witness remains unrebutted and unchallenged and the defence does not cross examines the witness then the deposition shall be deemed to have been accepted by the defence.
72.It goes without saying that a skillful cross examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignors then they may be taken as an acceptance of the truth of that part of witness evidence. In Babu Lal Vs. Caltax (India Ltd.) A 1967 C 2005 it was ruled, "Generally speaking, when cross examining, a party's counsel should put to each of his opponents witness in turn, so much of his case as concerns the particular witness or in which he had a share............if asks no questions, he will be taken to accept the witness account."
In Carapite Vs. Derderiem, A 1961 C 359, while relying the observation of Lord Herschell and Lord Halsbury, Hon'ble High Court observed, " Wherever an opponent declines to avail himself of the opportunity to put his essential and material case in cross examination , it must follow that he believe that the testimony cannot be disputed at all . It is not merely a technical rule of evidence . Rather it is Contd/....
37a rule of essential justice''. This is important test of checking the veracity and impeaching the credit worthiness of the witness was followed by Supreme Court as well in Ravinder Kumar Sharma Vs. State of Assam AIR 1999 SC 3571 and also in State of Uttar Pardesh Vs. Nahar Singh AIR 1998 SC 1328.
73.Moreover, the in ability of the witness to identify accused Rohit Bhatti and Pardeep Pilley in the court due to passage of time does not in any manner erode the authenticity and reliability of remaining deposition against them.
74.It is a legal preposition that even though a witness is hostile on some aspect of examination in chief his deposition cannot be tagged only to be unreliable as sought to be shown by evidence. In case titled L.S. Rao Vs. State of Andhra Pradesh AIR 2004 SC 1720 Hon'ble Supreme Court held:-
" the fact that witness were declared hostile by the prosecution does not result in automatic rejection of their evidence. Even evidence of hostile witness if it finds corroborated from the facts of case may be taken into account while judging guilt of accused."
In other important case titled " Anil Rai Vs State of Bihar" AIR 2001 SC 3173 Hon'ble Supreme Court held that:
" the mere fact that the Court gave the permission to Contd/....38
public prosecutor to cross examine his witness by declaring him hostile does not completely effaces the evidence of such witnesses. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence."
In Gulshan Kumar Vs. State 1993 Cr. LJ 1525 (Delhi) Hon'ble Delhi High Court observed:
" The Court is not precluded from taking into account a statement of a hostile witness altogether and it is not necessary to discard the same in toto."
75.As such in view of this case law I do not find any force in the contention of the defence that the maxim "fallous in uno, fallous in omnibus" shall be followed. The evidence of witness cannot be disclosed on a plea that he is not supporting the entire prosecution story.
76.Moreover this witness denied the suggestion of the defence that no inquiry was made by the police to him or that he is a planted witness. However the photo of deceased which was placed on record as Ex. PW 8/A cannot be relied by the prosecution, as the one which was shown to the witness during the initial inquiry, for the simple reason that it was neither made part of the chargesheet nor was supplied to the defence. Also no permission was taken by the prosecution from the court in this regard U/s 311 Cr. PC.
Contd/....
39
77.Thus the above sequence of events which have been unfold by PW-14 Anil Kumar Jain, PW-13 Dinesh Kumar Sharma, PW-10 Pawan Sharam and finally PW-8 Satish Kumar categorically shows that after deceased Manish Jain left his house at Hauj Khas for his printing press at Rohtak he was telephoned by accused Rohit and was apparently allowed induced and called at Liberty Cinema where accused Rohit Bhatti and Pardeep Pilley met him and all three of them had juice. It is apparent that this was the last time when deceased Manish was sighted. Thereafter Manish was neither seen nor heard of by any person and finally after about 29 days his dead body was recovered from B-1/150 Sector 8 Dwarka, as concluded supra. All this clearly shows and complete this part of the chain that Manish was last sighted at the juice shop near Liberty Cinema he was taken to above Dwarka House from where his dead body was finally recovered. All this categorically proves that Manish was abducted by accused Rohit and Pardeep Pilley and they have committed offence punishable under Section 365 IPC.
78.During the trial accused Arvind who is brother of accused Ajay was declared proclaimed offender. Since the set of facts and evidence qua each accused are different, it would be appropriate if the offences of each accused person is scanned separately.
79.ACCUSED TARUN KUMAR:- Firstly, the case against Tarun Kumar shall be dealt with. Admittedly the first document relied by the prosecution Contd/....
40which is shown to have unfolded the entire sequence of facts of this case right from the alleged kidnapping, murder and recovery of dead body, is disclosure statement of accused Rohit Bhatti Ex. PW 22/B. Admittedly in this disclosure statement wherein accused Rohit is shown to have named of his co-conspirator, the name of accused Tarun Kumar does not figure anywhere. Name of accused Tarun Kumar appears for the first time in the disclosure of Pardeep Pilley Ex. PW 22/D . Accused Tarun was arrested on 05.11.98 itself only on the basis of disclosure of his name by co accused Pardeep. Even in this disclosure statement all that is shown is that Tarun arranged a Phawara on 09.10.98. Although this parts of disclosure is hit by Section 25 of Evidence Act and cannot be legally referred to or relied , but it makes it clear that Tarun had no role to play in the incidents which allegedly took place on 08.10.98 i.e. kidnapping and alleged murder of Manish. Police is shown to have recorded his disclosure statement at Ex. PW 22/F. Even in his disclosure statement all that is mentioned is he obtained phawara from his friend Montu PW-18 Aditya Bharadwaj and handed it over to Pardeep Pilley and Arvind S. Lal. In his deposition PW-18 has not supported the prosecution case and despite the fact that he was put leading question no material has come on record against Tarun Kumar. As per the prosecution case itself Tarun never visited the spot and also there is nothing on record to suggest that he shared any common intention with Rohit Bhatti and Pardeep Pilley to kidnap or murder Manish. Moreover no finger prints were lifted from phawara and no Contd/....
41sample prints of Tarun were taken which could have in any manner connected him with phawara.
80.ACCUSED SANJAY DASS :-Second is Sanjay Dass. As far as accused Sanjay dass is concerned he was arrested on 07.11.98 after production warrants were got issued against him by IO PW-27 Inspector Jagjit Singh. Accused Sanjay was in JC in other case and his name also figured for the first time in the disclosure statement of accused Rohit Bhatti Ex. PW 22/B. As far as evidence brought by the prosecution against him apart from disclosure of co-accused Pardeep Pilley is his own disclosure statement recorded as EX. PW 22/D. All these disclosure statements are hereby hit by Section 25 as discussed supra. Apart from there disclosure statements he is shown to have pointed out the place where the alleged murder took place i.e. house in Dwarka and the place where the body was buried near the boundary wall of the house vide Memo Ex. 22/S dated 07.11.98. These documents have no evidentiary value for the simple reason that it does not lead to discovery of any new fact as per Section 27 of the Evidence Act since both these places were already in the knowledge of the police since 05.11.98.
81. Section 27 of Evidence Act How much of information received from accused may be proved:
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any Contd/....42
offence in the custody of a police officer, so much of such information, whether it amount to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
80.The plain reading of this section shows that this provision is an exception to general provision of Section 25 Evidence Act which makes a statement given by an accused while in custody to the police inadmissible.
While explaining the essence of this Section in case titled "Suresh Vs. State" AIR 1994 SC 2420 Hon'ble Supreme Court observed:-
" the provisions of the section are based on the reasoning that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information is true.
In "State Vs. Dame" (2000) 6 Supreme Court Case 269 Hon'ble Supreme Court observed, " the basic idea embodied in Section 27 is the doctrine of conformation by the specific events the doctor is founded on the principle that if any fact is discovered in search made on the strength of any information obtained from the prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true."
81.He is also shown to have taken the police to his house at Rama Park, Uttam Nagar where from underneath the matresses of bed room he is shown to have got recovered a gold chain with pendant (M) and a Contd/....
43pair of shoes branded "Tuff" which were allegedly identified by PW-14 Anil Kumar Jain as belonging to decease Manish vide Memo Ex. PW 22/T. Apart from IO PW-27 Jagjit Singh and complainant PW-14 Anil Kumar Jain this recovery is said to have been witnessed by PW-25 SI Ramavtar and PW22 SI Iqbal Singh. Perusal of statement of PW-14 Anil Kumar Jain shows that in his cross examination he conceded that as per the complaint made by him with the police on 08.10.08 as Ex. PW 4/A his son was wearing black leather shoes. Although he claimed that he had told the police about the gold chain but admittedly there was no mentioning of chain in the complaint. He further stated that he had mentioned about white and blue shoes make "Tuff" in the FIR. But FIR is also found silent in this aspect. He conceded that he had not stated in his statement that his son used to wear a gold chain with pendant daily. He also conceded that the shoe which are shown to have been recovered from the custody of Sanjay Dass are easily available in the market. Non mentioning of these articles i.e. gold chain with pendant with brand "Tuffs" shoes acquires significance in the light of the fact that prosecution had placed a list of belongings to deceased Manish on record during the course of recording of evidence as Ex. PW 14/A. An objection in this regard was taken by the defence on the ground that no such list was either placed on judicial record nor was supplied to accused persons. Although this list is purportedly of 10.09.98 but there is no endorsement to show that it was ever handed over to the police at any point of time during investigation. It is a settled legal Contd/....
44preposition that it is the duty of prosecution to supply all the copies of entire incriminating evidence sought to be relied against accused persons U/s 207 Cr. PC and that until and unless separate permission is taken from the Court u/s 311 Cr. PC no additional evidence can be adduced. Perusal of this list, which contains apart from details of gold chain with pendant other articles, does not inspire any confidence at all and as such can not be relied and read against accused persons.
82.It has come in the cross examination of PW-14 that police did not ask any passerby or any shopkeeper to join the investigation. Even though as per him Najafgarh Road is a populated area and is full with shops and houses. He further stated that people had gathered there but he cannot say if anyone of them was asked by the police to join the investigation. He stated that some ladies were present in the house of Sanjay Dass but they too were not made witness.
83.In case titled "Lukhvinder Singh Vs. State of Punjab" AIR 2000 SC 2577 Hon'ble Supreme Court observed, " The recovery of incriminating material and the seizures made were all doubtful when independent witness was not examined ...."
In case titled "State of Rajasthan Vs. Teja Singh" 2001 (II) AD (SC) 125 Hon'ble Supreme Court observed, " the failure of the prosecution to examine independent witness , though available , is Contd/....
45fatal for their case."
84.When the PW-14 was asked about the topography of the house and the vicinity he expressed ignorance and could not even tell as to how many stories the house of accused Sanjay Dass was having. Similarly PW-22 SI Iqbal Singh also stated that accused Sanjay Dass was arrested from Court. He stated that neither during the time of interrogation nor at Dwarka any independent witness was asked to join. He stated that wife of Sanjay Dass was present in the house but she was not made a witness. In his statement initial IO PW-25 SI Ram Avtar, claimed that list of belonging of deceased was given to him but he could not explain as to why there is no endorsement it and why it was not made part of the charge sheet . However he conceded that neither the missing report nor the FIR has any mention of gold chain with pendant or "Tuff" sports shoes detailed in as EX. PW 14/A. He conceded that no public witness was asked to join proceedings at Dwarka and even wife of Sanjay Dass was not asked to join the investigation and was also not handed over copy of the recovery memo. The fact that no public persons were asked to join the investigation is also mentioned in the cross examination of PW-14 and PW-22. He also conceded that he had not recorded statement of any family member of the deceased to show that as to what he was wearing. As such it is observed that the only legally admissible material which the prosecution intends to rely to secure conviction of accused Sanjay Dass in this murder case is recovery of a gold chain, pendant and "Tuff" shoes, allegedly belong Contd/....
46to deceased. Apart from anomalies and non joining of independent witness, the sheer fact that the alleged recovered articles neither find mentioned in the missing report as lodged by PW-14 on 08.10.98 nor in the FIR lodged by him on the next date i.e. 09.10.98 shows that there is some kind of manipulation here. The allegedly list of belonging i.e. Ex. PW 14/A was never made part of the charge sheet nor any statement of complaint or of any the family member was recorded to show as to what belongings decease Manish had when he last left the house. In this backdrop endeavour of prosecution in roping in of this accused in a heinous offence by way of such suspicious recoveries is shrouded with suspicion and over doing.
85.In case "B.L. Satish Vs. State of Karnataka" AIR 2002 SCW 2755 while dealing with murder case the circumstantial evidence wherein the only circumstance proved against the grand son of the deceased was that he pointed out to the ornaments of his grand mother which were kept in his maternal grand father's house Hon'ble Supreme Court observed that :-
since there was no other circumstance available in the entire breadth and length of the prosecution, the single circumstance of recovery of ornament is hardly sufficient for a Criminal Court to reach to a conclusion that the murder of the grand old lady was committed by her grand son.
Contd/....47
In similar case wherein article was shown recovered from the custody of accused even though the same had not mentioned in the FIR it was ruled to a reliable.
In case titled, "Nirajan Lal Vs. State of Haryana" 1995 Cr. LJ 248 Hon'ble Supreme Court observed that:-
" In case of robbery, recovery of wrist watch, which was of a common pattern, at the instance of the accused, the evidence regarding such recovery was an afterthought when in FIR there was no mention that the decease was having a wrist watch which was found missing. The wrist watch was not such a valuable commodity that accused would keep it concealed in his house.'' In this regard in case titled "Prabhu Vs. State" AIR 1963 SC 1113 Hon'ble Supreme Court cased out on the courts to be vigilant about the circumvention and the frequency misuse of provision of Section 27 of Evidence Act by the police. While observing that it has become a normal device in the investigating authority to turn an ordinary recovery into discovery in order to utilise the provision of Section 27 and this makes vulnerable to abuse.
86.ACCUSED BHARAT KHILANIA :-Next is accused Bharat Khilani. As per evidence on Bharat was arrested alongwith Sanjay Dass on 07.11.98 in pursuance of production warrants got issued against him. His disclosure statement was also recorded by police in the Court on 07.11.98 is Ex. PW 22/O. The pointing out Memo Ex. PW 22/R qua the house and the place where the body was buried is again legally in admissible as there is no discovery of new fact. Additional material gather against him in Contd/....
48this case is that he allegedly got recovered the Maruti Car of deceased Manish from the parking of Palam Airport vide Memo Ex. PW 22/D and its car parking token from his house i.e. INA Colony Delhi vide Ex. PW 22/5 and PW 22/X reportedly. The relevant witnesses qua recovery of car are PW-14 Anil Kumar and PW-23 Krishan Kumar apart from PW-22 SI Iqbal and PW-25 SI Ram Avatar apart from IO PW-27 Inspector Jagjit Singh. Accused Bharat Khilania is brother of accused Tarun. In his deposition PW-23 Krishan Kumar parking attendant at Palam Airport stated that police had come to seize car on 08.11.98. He failed to identify either of the accused persons. Although it is stated that photos were taken and finger prints were lifted but they are not on record.This witness was declared hostile. Despite suggestion of LD. APP he did not identify Accused in the Court.
87.In his cross examination he conceded that in the token neither the name of the person who parked the car is mentioned nor he is asked to sign the slip. In his deposition qua the recovery allegedly made by accused Bharat Khilani , PW22 deposed in cross examination that apart from PW 14 Anil Jain, no other public person was joined in the proceedings. As far as the recovery of parking token is concerned Witness has failed to disclose the number of room found in the house of Bharat Khilani from where the token was allegedly recovered, nor he could tell the details of his family members who were allegedly present at his house. He conceded that no witness from the neighbourhood Contd/....
49was called even though there was Gurudwara nearby. He stated that the place of recovery of car was not photographed which in contradiction to deposition of PW3 . According to PW3 photographs were taken at spot. In his cross examination PW25 SI Ram Avtar conceded that in the copy of register seized from the Palam Air Port neither he nor the IO or the accused signed the same. As discussed (Supra) while dealing with the case of accused Sanjay Dass here also, no independent witness was joined during the proceedings qua accused Bharat Khilani . Apart from alleged recovery of car and the token another circumstances which has been relied by the prosecution against the accused Bharat Khilani is deposition of PW21 Dr. Madhu Mehra who allegedly treated the injured hand of accused. As per disclosure statement Bharat is said to have been injured by deceased PW 21 but in her deposition she has failed to identify the accused Bharat Khilani and stated that she also does not not any person by the name of Rohit Bhatti. As per the prosecution case she is the family doctor of Rohit Bhatti. Admittedly no document has been placed on record to show if PW21 was ever family doctor of Rohit Bhatti or that she even gave any treatment to Bharat Khilani. Although she was declared hostile and was put questioned by Ld. APP but the vague replies given by her do not have such evidentiary value that they can prove conclusively that she had treated Bharat Khilani as claimed by the prosecution. After the arrest , accused Bharat was medically examined but his MLC remained unproved on record so as to share if Contd/....
50he had any corresponding injury. Moreover there is nothing on record to show if any blood stain of accused Bharat Khilani was found at the spot where he was allegedly given bite injuries by deceased Manish and in the absence of the same, the circumstances as sought to be proved by prosecution through PW21 Dr. Madhu Mehra have remained unproved. It has been rightly pointed out by LD. Defence counsel for accused Bharat that by the time accused Bharat was arrested on 7.11.1998, major part of investigation was over i.e. body was recovered and gutter was also pointed out. Perusal of file shows that even though it is shown that spot was duly photographed but no such photo is available on record.
88.While summing his arguments qua accused Bharat Khilani, it is stated by Ld. Spl. APP that in his statement U/s 313 Cr. P.C accused Bharat admits making of disclosure statement. In my considered view this plain submission of LD. Spl. PP can not overcome the bar of 25 of Indian Evidence Act according to which any statement given to the police can not be relied in evidence against the accused.
89.In case titled "Mohan Singh Vs. Prem Singh"2003 Cr. LJ Hon'ble Supreme Court held, " the statement of accused U/s 313 Cr. PC is not substantive evidence....................itself, however, not a substitute for the evidence of prosecution. If the prosecution evidence does not inspire confidence to Contd/....
51sustain the conviction of the accused, the inculcatory part of his statement U/s 313 Cr. PC cannot be made the sole basis of conviction."
Reply of accused U/s 313 Cr. PC does not make his disclosure statement admissible. Hence it can be summed up that only legally admissible evidence which has prosecution has brought against the accused Bharat Khilania is recovery of maruti car and a token which are both clouded with suspicion due to non joining of independent witnesses apart form contradictory statements of the witnesses and photographs being not available on record. Recovery of a car in which the deceased was last seen does not ipso facto lead to a conclusion that accused Bharat Khilani is involved in the murder . This circumstances in its own wisdom can only lead to a conclusion that accused was aware where the car was parked. Also there is no logic in claiming that accused kept token as momento in his house, so that police would come after a month of incident and get it recovered as piece of evidence. Further more since the house of Bharat was already raided by the police on 5.11.1998 at the time of arrest of his brother Tarun and even at that time the police must have searched the house throughly. The recovery of a token on a bookshelf as shown by the prosecution after 2 days of the initial search is highly doubtful.
90.ACCUSED ROHIT BHATTI :- As far as accused Rohit Bhatti is concerned as discussed (Supra) it already stands concluded that he was friend of Contd/....
52deceased Manish Jain and was having talking and visiting terms with him. On 8.10.1998 he telephoned Anil Jain at his printing press. The phone was attended by PW13 Dinesh Kumar Sharma who handed over the phone to Manish Jain. Soon after talking to accused Rohit, Manish left with a message that he would be back after 2½ -3 hours. Manish also telephoned his paternal uncle PW12 Ajay Kumar around the same time that he is going with some of his friends and would be reaching late for the ceremonial lunch of Karva Chauth. Thereafter Manish met Rohit Bhatti. As per the prosecution accused Pradeep Pillai was also with him. In the meanwhile Rohit also sent a pager message to Manish that he is waiting for him at liberty. This was the last time when deceased Manish Jain was sighted and he was sighted with accused Rohit & Pardeep.
91.It is admitted case of the defence that Rohit was joined in the investigation almost since its inception from 09.10.98 onwards . This fact also stands admitted by Rohit in his statement U/s 313 Cr.P.C in reply to question no.5. At that juncture perhaps when Rohit found the rope tightening around him, he got himself admitted in Mahendra Hospital and remained there for 10 days. When the IO again asked him to join the investigation he got himself admitted again in the hospital. This reluctance on the part of accused Rohit is a conduct which is relevant and important by virtue of section 8 of Evidence Act which runs as under:-
Contd/....53
92.Section 8 of Evidence Act- Motive, preparation and previous or subsequent conduct-
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
93.In AIR 1970 SC 400 Hon'ble Supreme Court held that :-
''conduct of an accused during the course of investigation post crime is relevant and admissible U/s 8 of the Evidence Act."
In the case in hand the act of accused Rohit in getting himself admitted to a hospital repeatedly so as to avoid the investigation is nothing but an act of evasion of justice and as per Best 11th Addition "Act of an accused which indicates a desire to avoid inquiry into an offence by his act of removing himself or his goods or keeping himself concealed affords a presumption of guilt, more or less cogent, according to circumstance."
94.After accused Rohit Bhatti was discharged from the hospital, he was again joined in the investigation by IO. It is pertinent to observe that Contd/....
54from 8.10.1998 till 5.11.1998 despite sustained efforts to trace deceased Manish, neither his whereabouts could be ascertained either by the family or police nor factum of his death was in the knowledge of police. This is also evident from the text of pager messages Ex. PW6/A which were flashed on pager of deceased Manish on 9th and 10th of October'1998 some of which read - ''everybody is waiting, contact immediately, Ashok Vihar Block- Anil Jain Ur father is waiting for you - Pappu, Mummy is serious, Papa is sick , please confirm your welfare, Amma is serious contact urgently at Ashok Vihar, if any assistance is required - Ajay Jain."
95.In this backdrop the next important development which took place after about a month of the disappearance of deceased Manish was disclosure statement given by Accused Rohit Bhatti as Ex. PW22/B on 5.11.1998, whereby he disclosed that Manish Jain is no more and that he was murdered on 8.10.1998 itself at B-1/156 Sector 8 , Dwarka. He disclosed that form the juice shop near liberty they allured Manish under the pretext that they all arranged female for him on above mentioned address at Dwarka. At Dwarka house he alongwith other co-accused namely Pardeep Pillai, Arvind S. Lal , Bharat Khilania, Sanjay Dass and Khushi Ram (PO) murdered him. Although this part of the disclosure is not legally admissible being hit by section 25 of Evidence Act but those portions of disclosure which lead to discovery of new facts are relevant and can be read against the accused as per Contd/....
55the section 27 of Evidence Act. The most important discovery from the statement of accused Rohit Bhatt is that "Manish had died on 08.10.98" .
96.As discussed (supra) deceased Manish died an unnatural death and as per post mortem report Ex. PW7/A, he died of Asphyxia due to strangulation done with the help of cotton cloth strip 29 days prior to 06.11.98 which comes near to 08.10.98 only. This opinion of PW DR. K. Goyal is not controverted by either of the accused persons in their cross examination and rather PW-17 Dr. K. Goel was not examined on behalf of accused Rohit Bhatti at all. Another important discovery of new fact is the house when the murder of deceased Manish took place i.e. house of accused Arvind Lal at B-1/9, Sector 8 Dwarka, Delhi. Yet another new fact discovered was the room where deceased Manish was strangulated and stated apart from the gutter where his body was initially dumped on 8.10.1998. Further discovery of new facts include revaluation of the names of other accused involved in the crime. As a consequence of this disclosure statement only accused Rohit took the police party to show the house as a whole and first floor room of the house in particular where the deceased Manish was murdered. He also pointed out the gutter where his body was initially dumped. Both the disclosure statements as well as these pointing out memos were witnessed by PW14 Anil Kumar Jain , PW22 SI Iqbal Singh and PW 25 SI Ram Avtar.
Contd/....
56
97.All these witnesses were cross examined at length but no material fact which could have any negative impact on the prosecution case has come on record. The pointing out memos is further fortified by the scientific evidence as blood samples were lifted not only from the first floor of this house but also from the gutter. As per CFSL result Ex. PW27/1, Ex. P4 and P5 which were samples lifted from the first floor of the house tested in positive for human blood of ''A'' Group as that of Manish. Deceased Manish which was also of ''A'' Group, as per Ex. PW9/A to Ex. PW9/F and Ex. P10 to P18 which includes the clothes worn by deceased Manish apart from blood stained earth lifted from near the body. This scientific evidence proves beyond any doubt i.e. room shown by the accused Rohit Bhatti was the place where Manish was murdered. Although he died of strangulation but as per the post mortem report,there was as antemortem stab wounds on the back of the body.
98.Similarly , blood stains were lifted form the gutter from its wall and bottom vide Ex. 1,2 and 3 & as per CFSL report Ex. P2 and P3 were tested positively for human blood ''A'' Group. This also establishes a very important circumstance that body of Manish was initially dumped into the gutter with an aim to conceal the same. In this backdrop it is argued on behalf of accused Rohit that since the dead body was not recovered on the pointing out of accused Rohit, the scientific evidence Contd/....
57can not be read against him. I do not find any force whatsoever in this contention for the simple reason that apart from disclosing the factum of murder, and other material facts on record, he also disclosed about the fact that Pardeep Pillai is aware of the spot where the body was buried after it was taken out form the gutter on the next day. In this manner accused Rohit can not be absolve himself from the discovery of body. Moreso since as per the prosecution case the body was shifted on 9.10.98 and at that time accused Rohit was not present there. The sequence of events which were unfolded by accused Rohit stands duly corroborated. His role in this case which from the very beginning was that of a prime accused as revealed from the material available on record. It was he who was instrumental in abduction of deceased by alluring him initially to juice shop near Liberty and thereafter to the place of murder i.e. at Dwarka House . He could do so as he was a friend of deceased Manish whereas alleged accomplices were strangers to deceased. In this backdrop the contention of the defence that the IO of this case did not inform the local police at Dwarka is of no consequence, since these trivial omissions can not be allowed to have a negative effect on the otherwise important and clinching evidence. It is a settled legal proposition that any ommission on irregularity committed by the IO during the course of investigation can not be allowed to be made a ground to discard the otherwise believe worthy evidence of the prosecution.
Contd/....
58
99.In case titled " State of Karnatka Vs. MN Ram Dass" AIR 2002 SC (3109) Hon'ble Supreme Court observed that"-
'' Lapse in investigation will not caste a cloud of doubt on prosecution case . Benefit of an act or omission of the investigating agency should not go to the accused in the interest of justice.'' Similar observation was made by Hon'ble Supreme Court in "Sachdevan Vs. State" AIR 2002 SC 215 that:
'' Any irregularity in investigation should not be allowed to be made a tool to dislodge the entire prosecution case on merits. ''
100.The other contention raised on behalf of accused Rohit is that even though co-accused Pardeep had pointed out the place from where the body was recovered by the police, the spot was not guarded. Till such time the body was exhumed in the present concerned SDM, doctor of mortuary and relatives of deceased. This averment is found to be contrary to evidence available on record . It has specifically come in the statement of PW-27 IO Inspector Jagjit Singh that 5.11.1998 they had left two police men to guard the spot.
101.The other contention raised by defence qua accused Rohit is that no legal test identification parade of accused Rohit was held with last seen witness PW13 Dinesh Kumar. Although there can be no doubt that holding of a test the identification parade U/s 9 of Evidence Act is Contd/....
59always advisable abut in the facts and circumstances of this case it can not be said that non holding of test identification parade by the police is of any assistance to the accused. The reason is simple as after deceased Manish disappeared on 9.10.1998 this case could be cracked only on 5.11.1998 after about a month of frantic records and investigation. Admittedly during the initial investigation accused Rohit was joined as prime suspect no.1 from 9.10.1998 itself owing to call he made to Manish and his SMS as well. When he was shown to PW8 Satish Kumar at his juice shop alongwith accused Pardeep Pillai, he had not yet been placed under arrest and the police was only trying to collect ascertain loose facts and develop them in order to have some headway . At that juncture it was not expected of the police to place him under arrest and get his regular TIP conducted as desired by the defence. PW8 as discussed above (supra) categorically stated that police had come to him and recorded his statement.
102.In case titled State Vs. Ayub (2002) 3 SCC 510 Hon'ble Supreme Court held that :-
'' the Test Identification Parade as such is not a substantive piece of evidence , but it is done only for the satisfaction of the prosecution that the investigation is moving in the right direction.'' In case titled State Vs. Machi Singh AIR 1983 SC 957 Hon'ble Supreme Court observed that '' it would be prudent to held Test Identification Parade Contd/....60
when the witness does not know the accused before occurrence . Failure to such parade , however, would not make the identification in the court inadmissible of the weigh should attached to such identification would be a matter for the court of fact and ordinarily an Appellate Court will not interfere recorded by the Trial Court.'' PW8 admitted that he gave his 161 Cr. PC statement to the police on 11.10.98. Not only in his statement, PW8 Satish stated that he saw deceased Manish with accused Rohit and Pardeep he stated so in Court as well . It is rather admirable that police did not act in haste to arrest the accused then and there the sheer fact that accused Rohit and Pardeep were not arrested from 11.10.1998 to 5.11.1998 for around 4 weeks shows that Investigating Officer of this case was not leaving anything to chance so and was not acting in any haste or hurried manner. Although last seen evidence is a strong circumstance against any suspect but he did not prejudged the entire matter so as to jump to a conclusion prematurely. However, despite the fact that investigation in this case was progressing cautiously, it was the conduct of the accused Rohit in getting himself admitted to a hospital apparently to evade police interrogation which arose suspicion. Lately after his arrest and cracking of entire case through him showed that police was treating in the right direction. In this backdrop once statement of PW8 was already recorded on 11.10.1998 U/s 161Cr. P.C it was not legally advisable on the part of the IO to request for a regular Test Contd/....61
Identification Parade of accused on 5.11.1998.
103.The other contention of the defence qua accused Rohit was that prosecution was duty bound to show the body and clothes of deceased Manish to PW-8 Satish Kumar so as to get it identified if it was Manish who was with accused Rohit Bhatti and Pardeep Pillai at the juice shop on 8.10.1998. In this regard I do not see any reason as to why the body and clothes were supposed to be shown in the manner sought in the backdrop of the fact that PW8 not only gave the name of the deceased Manish and accused Rohit in his examination in chief but identified the deceased Manish before IO from the photograph as the person who came to have juice in his car. He also gave description of deceased Manish having a bald forehead & wearing a checked shirt and jeans.
104.In case titled "Mani Kumar Thapa Vs. State of Sikkim" AIR 2002 SC 2920, A murder case which was solely based on circumstantial evidence while referring to Section 8 of the Evidence Act and proof of motive Hon'ble Supreme Court observed that :-
" If the prosecution is able to establish beyond all reasonable doubt from other circumstantial evidence that it is the accused alone who has committed the murder, the absence of motive will not hamper a safe conviction."
In case titled State Vs. David Rozario AIR 2002 SC 3272 Hon'ble Supreme Court observed that "-
Contd/....
62'' motive behind the crime is a relevant fact of which evidence can be given a ............ proof of motive can satisfy the judicial mind about the authorship of the crime but the absence does not ipso facto result in the acquittal of accused. Motive is not sine-qua-non to prove the cases of the prosecution. Absence of proof only demands deeper forensic search and can not do or undo the effect of evidence if otherwise is reliable and sufficient.''
105.The last contention on behalf of defence qua accused Rohit is that prosecution has failed to establish on record any motive in this case which accused Rohit might have in killing the deceased Manish. The case set up by the prosecution is that deceased Manish was abducted with an intention to seek ransom as he hails from an affluent family as compared to the accused persons. However, as per the material available on record deceased Manish died within initial few hour of the abduction. This can be one of the reasons as to why no ransom call was made. However, in the facts and circumstances of this case, absence of specific proof that the abduction and murder was aimed at extorting ransom cannot dislodge prosecution case. Non availability of clinching evidence of motive is of no assistance to the defence in this case of circumstantial evidence.
106.The other contention of the defence is that prosecution should have brought evidence on record to show that accused Rohit and deceased Manish were friend. In my considered view enough material Contd/....
63is available on record to show that they were friends. The PW13 has categorically stated that accused Rohit was friendly to deceased Manish and used to ca;; off and on and was also having visiting terms. Moreover , it has never been suggested by defence to PW13 that Manish and Rohit were stranger and were not known to each other. Similarly no suggestion was made to PW12 Ajay Kumar Jain who stated that while leaving the printing the press Manish stated that he was going with some of the friends and name of the friends was revealed by PW13 as Rohit. Rather PW12 was not even cross examined by either of the accused persons.
107.ACCUSED PARDEEP PILLAI As far as accused Pardeep Pillai is concerned , according to the chargesheeted case of the prosecution he was accompanying accused Rohit Bhatti when accused Rohit Bhatti met deceased Manish at the juice shop of PW8 near Liberty on 8.10.1998 where Manish was called by Rohit initially by telephoning him and thereafter by paging message. Statement of PW8 Satish Kumar is important for the case of accused Pardeep Pillai as well . There is no doubt that although in his examination in chief this witness has only taken the name of deceased Manish and accused Rohit but he stopped short of taking the name of accused Pardeep Pillai. He, however, stated that apart from Manish who came in a maruti car , two other persons between the age group of 23-24 years had come on a motorcycle. Although he failed to Contd/....
64identify the accused persons individually but upon being put by Ld. Addl. PP he did not deny that he disclosed the name of accused persons as Rohit and Pardeep Pillai. He also denied the suggestion made by LD. Counsel for accused Pardeep Pillai that no person was ever shown to him as claimed by him after three days of the Karva Chauth day on 11.10.1998. The quality of evidence of accused Pardeep as far as PW13 is concerned is not since-qua-non to that of accused Rohit Bhatti but does not even exonerate him in totality. It is a settled legal proposition that deposition of hostile witnesses are not supposed to be discarded in totality and whatever reliance can be placed on the material available shall be looked into. More so in cases solely based on circumstantial evidence. As per the record and the deposition of witness , accused Pardeep Pillai was found at the house of accused Rohit Bhatti on 5.11.1998 from where both of them were brought to the PS for interrogation. His name was disclosed by co- accused Rohit Bhatti initially. Subsequently after he was arrested he too gave separate disclosure statement Ex. PW23/D. The major points of both the disclosure statements corroborates each other and supports the sequence of events unfolded in them. While in his disclosure statement accused Rohit Bhatti detailed about the dumping the body of the deceased in the gutter at Dwarka House, its disclosure of accused Pardeep Pillai brings to the fore a very important new fact that on next day the body was taken out by him with the help of other co-accused (Rohit not included) and was buried next to the boundary Contd/....
65wall of the house. Since the disclosure statement of Rohit Bhatti could not lead to the recovery of dead body, but for the additional statement and pointing out of the specific spot by accused Pardeep Pillai, the body of the deceased would not have been recovered. Although Pardeep in his disclosure Ex. PW23/D and pointing out memo Ex. PW22/A also pointed out the Dwarka House, the first floor room where the murder took place and the gutter where the body was initially dumped but since all these three facts were already in the knowledge of the police through the disclosure of co-accused Rohit, it can not be said that they constitute discovery of a new facts. However, the spot where the body was subsequently buried on 9.10.1998 was in the exclusive knowledge of Pardeep Pillai by that time and pointing out of that spot and subsequent discovery of the body there which was exhumed on the next date on 6.11.1998 constitutes discovery of a startling new fact and is a very strong circumstance against Accused Pardeep.
108.While opening arguments on behalf of accused Pardeep Pillai, surprisingly Ld. Defence Counsel started by submitted that there is no absolutely evidence against her client. She contended that the weapon of offence i.e. knife used was not recovered and non preparation of any seizure memo of the dead body containing signature of the accused Pardeep are sufficient to let off her client. As regard the weapon of offence, it is the prosecution case that the knife Contd/....
66was used by accused Khusi Ram to injured the back of the deceased Manish and since accused Khushi Ram who was Chowkidar of the house, had absconded and was declared a proclaimed offender, the weapon could not be recovered. Accused Pardeep Pillai in these circumstances can not take benefit of non recovery of knife t. However, as per the post mortem report Ex. PW27/A the cause of death was asphyxia due to strangulation. The cloth strip apparently used for the purpose of strangulation was found tied over the neck of dead body. As far as non preparation of seizure memo of dead body is concerned, in my considered view much can not be read into that for the simple reason that after accused Pradeep Pillai pointed out the spot vide memo Ex. PW22/A,where the body was buried by them the exhumation proceedings were not carried out on that evening. In terms of Chapter 25.34 Punjab Police Rules Vol. 3 which provides that any such like exhumation of body shall be done in the presence of area of SDM. IO needed time to do the formalities. Record shows that on 6.11.1998 itself IO PW27 moved an application Ex. PW27/3 before the SDM concerned. The endorsement of the area SDM is proved as Ex. PW26/A. On the same day SHO prepared brief facts Ex. PW 17/4 and handed over them to concerned doctor of mortuary PW17 Dr. K. Goel & he alongwith two of his employees PW16 Tara Chand and PW11 Sudesh Kumar reached the place of exhumation. Inquest proceedings were conducted on that day itself and vide Ex. PW17/5. Apart from recording the body identification statements , separate letter was Contd/....
67written to the Medical Superintendent, of Civil Hospital. Moreover, considering the advanced stage of decomposition the body, its post mortem Ex. PW17/A was also conducted at the spot. Once so many vital document were prepared at the spot, I do not see any reason as to why a separate seizure memo of the dead body too should have been prepared. The fact that signature of accused Pardeep Pillai were not got done on the document of inquest and post mortem report is of no assistance to the defence since in their deposition , the concerned doctor of the mortuary and other public witness apart from the SHO including SDM named the accused Pardeep Pillai as the person who was present at the spot at the time of inquest proceedings on 6.11.1998. PW11 not only named but also correctly identified the accused Pardeep Pillai. Similarly , PW16 Tara Chand also name and connected the accused Pardeep as the person who pointed out the place of burial. Interestingly this witness was not cross examined by LD. Counsel for accused. As discussed (supra) when defence did not cross examine a witness about any fact brought by the prosecution on record the same is deemed to be admitted.
109.In his statement PW26 son Chandrakar Bharti who supervisesd the exhumation proceedings on 6.11.1998 named the accused Pardeep Pillai on record as the person who pointed out the place where the body was buried. In pursuance of this overwhelming evidence by an independent, trustworthy responsible witness , I do not see any reason Contd/....
68as to how Ld. Defence counsel can claim that the prosecution case against her client is of zero evidence.
110.The other contention putforth by LD. Counsel for accused Pardeep Pilllai is that case deserves to fail only on the ground that they have connected the dead body to not only accused Pardeep but also to accused Ajay S. Lal. I am not in conformity with Ld. Counsel for defence since the pointing out of the place where the body was buried is not a joint pointing out memo but rather individual memos have been prepared. It was Accused Pardeep who firstly gave disclosure of new fact of burial of body and he only firstly pointed out the spot of burial. Rather the subsequent disclosure and subsequent separate pointing out memo by co-accused Ajay S. Lal has no evidential value as they were only repetition of what Pardeep disclosed and pointed out.
111.The other contention made on behalf of accused Pradeep is that prosecution has failed to prove motive of murder. The motive part of the prosecution case has already discussed (supra) while evaluating the evidence of Rohit Bhatti.
112.The other contention on his behalf is that disclosure of Pardeep does not constitute discovery of new fact since Rohit had already disclosed everything to the police in this case. This plea is based on wrong factual averment since as discussed (supra) the disclosure of Rohit Contd/....
69stopped short off specifying and pin pointing the place where the body was buried . It was only through the disclosure of Pardeep that the body was recovered.
113.I also do not find any strength in the contention of the defence that since the place of burial of body was discovered on 5.11.1998 there was no reason for the police to wait for 24 hours up to 6.11.1998. As discussed (supra) exhumation was done as per statutory provision of Punjab Police Rule which provides exhumation to be done in presence of area SDM and in the meanwhile the place was secured by leaving two guards there. I also do not find any force any plea of accused that absence of signature Pardeep also raises doubt. As discussed PW13 and PW16 have not only named accused Pardeep Pillai but have also identified him in Court as the accused person who was present at the spot at the time of exhumation and it was he who pointed out the place from where the body was exhumed. Similarly PW26 the then SDM Chandrakar Bharati also disclosed his name as the person who was present at the spot.
114.Another circumstance which the prosecution has brought on record against the accused Pardeep is that he pointed out the spot where the Phawra was kept by them and that he got it recovered alongwith accused Ajay S. Lal vide memo Ex. PW22/M. Although preparation of a joint pointing out and recovery memo of incriminating articles by the Contd/....
70police is not a sound investigational practice but in the light of the fact that in his disclosure Ex. PW22/B which accused Pardeep gave to the police much prior to the disclosure of accused Ajay S. Lal, he told the police that he can get the Phawra Ex. P7 recovered which was used for burial the dead body. Both these documents when read in conjunction shows that for this technical anomaly , the recovery of dead body and phawra can not be discarded in totality. Moreover, the phawra was not a weapon of offence and was used on the subsequent day of murder only to conceal the dead body and as such it pertains to only 201 IPC part of the prosecution case and not to the murder.
115.In AIR 1956 SC 217 while dealing with similar cases where two separate disclosure statement were recorded qua same spot, Hon'ble Supreme Court observed '' where two accused make separate statement and point the same place leading to discovery in pursuance of information, statement of 2nd accused who gained information later is inadmissible. ''
116.Last contention made by LD. Defence counsel is that the body was not recovered from within the boundary wall of the house and since it was the dug out from an open place it can not be relied against the accused person. In my considered view this plea is of not much assistance to defence for the reason that the place of recovery of body was right next to the boundary wall of the floor , adjacent to the Contd/....
71entry gate. Since from the photograph placed and proved on record as Ex. PW3/14 to PW3/26, it is observed that inner portion of the house was totally cemented and it was only the space next to the entry gate which was found raw and was suitable for digging purpose. Moreover, it is a settled legal proposition that just by being accessible a recovery of something as vital as dead body can not be allowed to be under played . A dead body buried in soil cannot be acquitted to recovery of some arm lying openly in public place as sought to be done by Ld. Defence Counsel in case laws referred to by her.
117.In case titled Swami Shardhanand Vs. State of Karnatka AIR 2007 SC 2531, Hon'ble Supreme Court ruled that '' That part of the confessional statement of the accused is admissible U/s 27 of the Evidence Act under which accused pin pointed the exact place of the burial which led to exhumation of the skeleton.'' In State of Himachal Pardesh Vs. Jeet Singh AIR 1999 SC 1293 Hon'ble Supreme Court while discussing the recovery of articles on the pointing of accused observed that :
'' where the recovery of articles connected with the crime was made from a place open and accessible to others, the evidence was held to be not vitiated thereby. The test is not whether the place is accessible to other but whether it is ordinarily visible to others.
Contd/....72
118.It has been argued by Ld. Spl. PP in this case that in the case in hand there was a plan between all the accused persons to kidnap deceased Manish Jain for ransom and murder. It was also argued that even the individual disclosure statements given by all accused persons qua their involvement and involvement of co-accused can be legally read and relied as per section 10 of the Evidence Act.
119.Although it is settled legal proposition that since conspiracies are hatched in secrecy, there is no direct evidence qua it but as far as request of prosecution to take recourse of section 10 Evidence Act is concerned, it is also a settled proposition that there should be some material before the court to judge if there existed conspiracy before section 10 of the Evidence Act can be taken recourse to.
120.Section 10 of Evidence Act runs as under:-
Things said or done by conspirator in reference to common design- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the timewhen such intention was first entertained by any one of them, is a relevant fact, as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
Contd/....73
121.In case reported as 18 CSJ 580 it was observed:
The statement of accused can not be used against co- accused until it is established that there is reasonable ground to believe that there was a conspiracy.
122.The plain reading of section 10 shows that in the first later part it stresses that there should be reasonable ground to believe that there was conspiracy before the benefit of second part can be availed by the prosecution. In State Vs. Jayalalitha (2000) 5 SCC 440 Hon'ble Supreme Court held that :
'' question of using anything said, done or written by any one of such conspirators would arise only if the facts would help to sustain the first limb of the section i.e. there is reasonable ground to believe that two or more persons have conspired together to commit an offence.
123.Moreover, it is also a settled legal proposition that benefit of section 10 which is per se an exception of section 25 of Evidence Act can not be taken once conspiracy entered into between the accused persons as come into an end. In AIR 1947 SC 747, Hon'ble Supreme Court held that :
Charge specifies period of conspiracy. Evidence of acts of conspirators outside the period not receivable in evidence.
124.In case 1956 Crl. Law Journal 1220, Hon'ble High Court held -
Contd/....
74things said done or written by a conspirator after conspiracy had ended is inadmissible
125.In the case in hand as well the first disclosure statement was made by accused Rohit Bhatti on 5.11.1998 i.e. after about a month of disappearance of deceased Manish. By that time if at all there was any conspiracy it had by all means come to end and as such benefit of section 10 Evidence Act is not available to the prosecution.
126.I also do not find any force in the contention of Ld. Spl. APP that in the case in hand conspiracy amongst all the accused persons can be gauged and derived form the facts and circumstances of this case.
127.In Rajive Gandhi's case titled State Vs. Nalini (1999) 5 SCC 253 while discussing the broad principles of conspiracy Hon'ble Supreme Court observed that :
A charge of conspiracy may prejudice the accused because it forces them into a joint trial. Introduction of evidence against some may result the conviction of all which has to be avoided.
128.In the case in hand for roping in co-accused Tarun Kumar , Bharat Khilania , Sanjay Dass & Ajay Lal the only evidence collected in recovery of loose articles like shoe, chain, purse etc of the deceased apart from car in token from their custody. As discussed (Supra) neither these recoveries inspired confidence nor they were found sufficient to Contd/....
75reach to a conclusion that they were co-conspirators with Rohit Bhatti and Pardeep Pillay.
129.It would not be out of context to mention here that in the order of Hon'ble High Court, while discharging the accused Ajay Lal it is recorded that LD. Counsel for state conceded that he has nothing on record to show that accused Ajay S. Lal was the part of any conspiracy. All this goes on to show that as far substantive offence of conspiracy is concerned prosecution has failed to prove and established the same on record.
130.FINAL FINDINGS: In the absence of any assistance to the prosecution case qua conspiracy theory, as discussed (supra ) in detail in my considered view prosecution has failed to prove the charges framed against the accused Tarun, Sanjay Dass and Bharat Khilania. As concluded (supra) the recoveries shown against them does not inspire any confidence and are shrouded with doubt. It is settled legal proposition that in case of doubt, benefit of doubt shall go the accused persons.
131.In case titled Gangadhar Behra Vs. State (2002) 8 SCC 381 while summing up the issue of grant of benefit of doubt Hon'ble Supreme Court observed '' a Judge does not preside over the criminal trial merely to see that no innocent man is punished, a Judge also Contd/....
76presides to see that a guilt man does not escape. Both are public duty ................. doubts would be called reasonable if they are free from a zest for abstract speculation. Law can not afford any favourite other than truth.
In Sradha Vradhichand Sarda Vs. State AIR 1984 SC 1622 Hon'ble Supreme Court observed that:-
'' where on the evidence two possibilities were available one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. That plea had separate spl. relevance when the guilt of the accused was sought to be established of circumstantial evidence.
In Narender Singh Vs. State of MP AIR 2004 SC 3249, while dealing the murder case of circumstantial evidence, Hon'ble Supreme Court observed that:-
'' benefit there of must go to accused person as in any event there being two possible views, one supporting accused should be upheld.''
132.As such accused Tarun, Sanjay Dass and Bharat Khilania stand acquitted of the charge U/s 302/364A/201/120B/129B , their bail bonds are canceled and sureties discharged. Accused Bharat Khilania who is produced from J/c be released from J/c henceforth if not required in any other case.
Contd/....
77
133.As far as accused Rohit and Pardeep are concerned as discussed (supra) prosecution has completed the chain of circumstances which unerringly points towards the guilt of both these accused. From the point of telephonically calling deceased Manish to the recovery of dead body and corroboration of intervening sequence of events by the scientific evidence, as discussed, shows that accused Rohit Bhatti and Pardeep Pillai in furtherance of their common intention abducted deceased Manish and murdered him on aforementioned house located at Dwarka on 8.10.1998 and dumped his body initially in the gutter and later on it was buried.
134.In case AIR 1977 SC 472 it has been held that :
Several persons tried for murder. Merely because one of them is given benefit of doubt, others should not be acquitted.
In case titled State Vs. Major Singh 2007 Crl. Law Journal 59, Hon'ble Supreme Court while dealing with murder case where some of the accused were acquitted while remaining were convicted, observed that '' it is always open to a court to differentiate the accused who had been acquitted from those who had been convicted.
In State Vs. Badri Yadav 2006 Cr.L.J 2128, (SC) Hon'ble Supreme Court Contd/....78
observed that:
'' acquittal of some of the accused does not necessarily result in acquittal of the rest. There is no rule of law that if the court acquits certain accused on the evidence of witnesses finding it to be opened to some doubt with regards to them for definite reason, other accused against whom there is positive evidence must also be acquitted.
135.As such in view of the above discussion, facts and circumstances of the case accused Rohit Bhatti and Pardeep Pillai are found guilty for commission of offence punishable U/s 302/365/201 r/w 34 IPC. Both be taken into custody and sent to J/c. They shall, however, be heard separately on the point of sentence.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 12.12.2008 ( SURINDER S. RATHI ) ASJ:FTC:DELHI:12.12.2008 Contd/....
79
1. IN THE COURT OF SHRI SURINDER S. RATHI: ADDL. SESSIONS JUDGE FAST TRACK COURT:ROOM NO.272:TIS HAZARI COURTS:DELHI FIR NO: 442/1998 U/s : 364A / 302/201/120B/397/34 IPC STATE vs ARVIND LAL & ANRS.
12.12.2008 Pr: Sh. Gaurva Dubey LD. Proxy counsel for Ld. Spl. PP Sh.
Mukesh Kalia for state Accused Bharat Khilania is produced from J/c but on bail in this case.
Arvind S. Lal and Khushi Ram are PO Accused Sanjay Dass , Rohit Bhatti Pardeep Pillai Tarun Kumar are present on bail LD. Counsel Sh. Pankaj Kumar for accused Rohit and Sanjay Dass is also present Vide a separate judgment of the day accused Sanjay Dass, Tarun Kumar , Bharat Khilana stand acquitted of the charge. Their bail bonds canceled , surety discharged. Accused Bharat Khilania be released from J/c henceforth if not required in any other case.
Accused Pardeep Pillai and accused Rohit Bhatti are found guilty for commission of offence punishable U/s 302/365/201 r/w 34 IP 1C. Both accused Pardeep Pillai and accused Rohit Bhatti stand convicted accordingly. They are taken into judicial custody.
Now to come up for argument and order on sentence on 20.12.2008.
( SURINDER S. RATHI ) ASJ:FTC:DELHI:12.12.2008 Contd/....
80
75.
76.The elements of a criminal conspiracy have been stated to be (a) an object to be accomplished , (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or ore of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any efffectual means, and (d) in the jurisdiction where the statute required on overt act.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy and that the object of the combination need not be accomplished in order to constitute an indictable offence.
1. ////////////////////////// Contd/....