Delhi District Court
State vs Yogesh And Ors on 12 February, 2025
IN THE COURT OF SH. BABRU BHAN, ADDITIONAL
SESSIONS JUDGE-03, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
FIR No.56/16
PS Kanjhawala
State Vs. Yogesh @ Yogi & Ors.
(a) Session Case No. 53245/16
(b) Date of offence 29.01.2016
(c) Accused 1. Yogesh S/o Sh. Mahavir Singh,
R/o H.No.203, Village Neelwal,
PO Tikri Kalan, Delhi-110041
2. Parvez Alam S/o Sh. Aziz
Ahmed, R/o H.No.A-564, Camp
No.2, Nangloi, Delhi.
3. Sonu @ Chikku (already
declared PO)
4. Sombir @ Bagdi @ Surender @
Sonu (already declared PO)
(d) Offence u/s 365/302/201/120-B/34
(e) Plea of accused Not guilty
(f) Final Order Acquittal
(g) Date of institution 14.05.2016
(h) Date when 17.12.2024
judgment was
reserved
(i) Date of judgment 12.02.2025
Digitally
signed by
BABRU BABRU
Date:
BHAN
BHAN 2025.02.17
JUDGMENT 15:26:01
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State Vs. Yogesh @ Yogi & Ors. Page 1 of 56
BRIEF FACTS
1. The case set up by the prosecution is that Anil @ Monu
(hereinafter referred as deceased) was an RTV driver and used
to drive his vehicle between Mubarak Pur and Punjabi Bagh.
On 29.01.2016, when deceased did not return from his work,
his mother Dayawati PW-11 made a telephonic call to him at
about 07:00 to 08:00 pm and inquired about his whereabouts.
Deceased told his mother that he would return in the late
evening as Monu @ Mona PW-10 was calling him to settle a
pending dispute regarding plying of RTV. Deceased did not
return that night, therefore, Dayawati PW-11 inquired about the
deceased from Monu @ Mona but he could not provide any
useful information and claimed ignorance in this regard.
2. When deceased did not return that night, Dayawati PW-11
lodged a police report at PS Aman Vihar on 02.02.2016. ASI R.
C. Meena PW-15 registered the missing report in form of DD
No.15A Ex.PW15/A and flashed as message to all police station
through ZIP net.
3. Ramesh PW-4 who was native of village Salahpur Majra Dabas
had some agricultural land on a stretch between Majra Dabas
and Bajirpur. On 04.02.2016, when he visited his fields, he was
told by some ladies working there that a headless body was
lying naked in his fields. He made a PCR call in this regard.
4. The PCR call made by Ramesh PW-4 was transmitted to PS BABRU
BHAN
Kanjhawala where it was recorded in form of DD No.19A
Ex.PW2/A. The DD was assigned to SI Jai Singh PW-2 for Digitally
signed by
BABRU
BHAN
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2025.02.17
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State Vs. Yogesh @ Yogi & Ors. Page 2 of 56
further necessary action. SI Jai Singh PW-2 alongwith Ct. Ajay
PW-23 and Ct. Pradeep (not examined as a witness) went to the
spot where one headless body was found lying upside down.
There were some marks of injury on the chest. Inspector
investigation and the concerned SHO also reached the spot.
ASI Shiv Charan PW-19 who was posted at PCR Outer District
also received the information and reached the spot.
5. Crime team consisting of SI Ajeet Singh and Ct. Mahesh PW1
(also PW28) reached the spot and inspected it. SI Ajeet Singh
prepared a report Ex.PW28/A. Ct. Mahesh took 6 photographs
(Ex.PW1/A-1 to Ex.PW1/A-6 / negative film strip Ex.PW1/B)
of the spot from different angles.
6. SI Jai Singh PW-2 made an endorsement Ex.PW2/B on DD
Ex.PW2/A and handed over the same to Ct. Ajay PW-23 and
sent him for registration of FIR. After registration of FIR, the
further investigation of the case was handed over to Insp.
Narender PW-42.
7. During further course of investigation, Insp. Narender PW-42
lifted blood with the help of cotton from the place near dead
body, gray colour socks on the feet of the dead body and a stone
lying nearby and seized the same vide seizure memo
Ex.PW2/DA. Three separate pulandas were prepared in this
regard and same were sealed with seal of 'NSY'. IO handed
over the seal to Ct. Ajay after use. Thereafter, IO recorded the
statement of Incharge crime team and shifted the headless body BABRU
BHAN
to mortuary SGM hospital through Ct. Pradeep. Thereafter, IO
moved an application Ex.PW42/A for preservation of the body. Digitally
signed by
BABRU
BHAN
Date:
2025.02.17
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State Vs. Yogesh @ Yogi & Ors. Page 3 of 56 +0530
IO also prepared a visual site plan Ex.PW2/D. Thereafter, IO /
Insp. Narender proceeded on training for a refresher course and
therefore, further investigation was handed over to Insp. Dinesh
PW-25.
8. In the meanwhile, SI Radhey Shyam PW-38 who was posted at
ISC Crime Branch received a secret information on 16.02.2016,
at about 04:00 pm that two persons namely Yogesh @ Yogi and
Sonu @ Chiku who were involved in murder of Anil @ Monu
shall come to Ghevra mod at about 05:30 am. In pursuant to the
information, SI Radhey Shyam PW-38 constituted a raiding
party including Ct. Satbir PW-39 and many other police
officials and left for the spot vide DD No.12 Ex.PW38/X.
9. The aforesaid raiding party laid a trap at Ghevra mod. At about
05:30 am, secret informer pointed towards one Scorpio Car
bearing no. DL4CNB1289. The said car was intercepted and
two persons whose names were subsequently revealed as
Yogesh @ Yogi and Sonu @ Chiku were apprehended. They
were arrested, personally searched and their disclosure
statements were recorded vide memos and statements
Ex.PW38/A to Ex.PW38/G. Thereafter, the police party
returned their office and made an entry regarding their arrival
vide DD No.15 Ex.PW38/H. Ct. Satbir PW-39 has also deposed
same facts regarding arrest of accused Yogesh @ Yogi and
Sonu @ Chiku.
10. On 17.02.2016, SI Radhey Shyam PW-38 transmitted the
BABRU
information regarding arrest of accused Yogesh @ Yogi and BHAN
Sonu @ Chiku to PS Kanjhawala and produced the accused Digitally
signed by
BABRU
BHAN
Date:
2025.02.17
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State Vs. Yogesh @ Yogi & Ors. Page 4 of 56
persons before the Ld. Metropolitan Magistrate.
11. At PS Kanjhawala, the information was recorded in form of DD
No.18A. In response to the information, Insp. Dinesh PW-25
reached Rohini Court where he came to know that accused
persons had already been sent to judicial custody.
12. On next day i.e. on 18.02.2016, both accused namely Yogesh
@ Yogi and Sonu @ Chiku were produced in Rohini Court.
Insp. Dinesh PW-25 moved an application Ex.PW25/A for
interrogation of both the accused persons. Insp. Dinesh
thereafter interrogated both the aforesaid accused persons and
recorded their disclosure statement Ex.PW25/B and
Ex.PW25/C. Subsequent thereof, he formally arrested them
vide memo Ex.PW25/D and Ex.PW25/E respectively. IO
obtained five days PC remand of both the accused persons
during which both the accused persons pointed out the place
where they had dumped the headless body. Insp. Dinesh Kumar
prepared a pointing out memo Ex.PW25/F in this regard.
During PC remand, both the accused persons led the police
party from where they had picked up deceased Anil @ Monu.
IO prepared a pointing out memo Ex.PW25/G in this regard.
Ct. Dalip PW-40 had also participated in the aforesaid
proceedings along-with Insp. Dinesh. He has deposed same
facts in his court statement.
13. On 20.02.2016, Insp. Narender PW-42 again took over the
investigation from Insp. Dinesh PW-25. On that day, accused BABRU
BHAN
Yogesh @ Yogi and Sonu @ Chiku led the police party on a
Digitally
road called Bajatpur road which leads to Sahalpur Majra Dabas. signed by
BABRU
BHAN
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2025.02.17
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State Vs. Yogesh @ Yogi & Ors. Page 5 of 56
There both the accused persons pointed out a place in the drain
where the accused persons had allegedly thrown the head of the
deceased Anil. Insp. Dinesh PW-25, HC Begraj PW-37, Ct.
Anil PW-36 and Ct. Arun PW-33 were already present there
and were getting the water pumped out of the drainage with
help of tractor and JCB machine.
14. When the aforesaid search operation for the head of the
deceased was being carried out, accused Sonu @ Chiku led the
police party towards Bawana Nahar near Shani Temple. There
was a small bridge on the left side of road which leads towards
Dariyapur. From there, accused Sonu @ Chiku got recovered a
blood stained knife from the bushes. IO prepared sketch
Ex.PW40/C and sealed the knife with seal of 'NSY' in a
separate pulanda and seized it vide seizure-cum-pointing out
memo Ex.PW40/D. IO also prepared the site plan of recovery
of knife Ex.PW40/E.
15. After recovery of the knife, both the accused persons namely
Yogesh @ Yogi and Sonu @ Chiku led the police party towards
barren fields of Ghevra village near railway line. There they
pointed out the place where they had burnt the clothes of the
deceased. The burnt particles of the clothes were recovered
from that place at instance of both the accused persons. IO
prepared the pulanda of the said particles and sealed the same
with seal of 'NSY' and thereafter, seized the pulanda vide
seizure memo Ex.PW40/F. A site plan Ex.PW40/G was also BABRU
BHAN
prepared regarding the recovery.
Digitally
16. The search for the head was still continued in the drainage. signed
BABRU
by
BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 6 of 56
During the search, a JCB driver Ravi recovered a bundle (potli)
wrapped in the cloth. It was opened and was found containing
a human head. IO prepared a memo Ex.PW5/A in this regard
and seized the same. The relative of the deceased namely
Surender, Ravinder PW-5 and Sumit Bazad PW-29 identified
the same. Crime team was called. Crime team consisting of SI
Ajeet and Ct. Vinod reached at the spot. SI Ajeet inspected the
spot and prepared his report Ex.PW28/B. Ct. Vinod PW-3 took
the photographs Ex.PW3/A-1 to Ex.PW3/A-8. Negative is
Ex.PW3/DA.
17. Thereafter, IO / Insp. Narender PW-42 prepared the site plan
Ex.PW42/A of the recovery. The head was sent to mortuary
through Ct. Vinod PW-35 with an application Ex.PW42/A.
18. On 22.02.2016, IO / Insp. Narender Kumar PW-42 along-with
Ct. Vinod PW-35 went to mortuary of SGM hospital for the
postmortem upon the body of the deceased. There Sumit Bazad
PW-29 and Rajesh @ Rinku identified the dead body of the
deceased. IO recorded their statement regarding identification
of the dead body. Thereafter, IO moved an application
Ex.PW42/B for the postmortem of the deceased.
19. Dr. Manoj Dhingra PW-21 conducted the postmortem on
22.02.2016 vide his report Ex.PW21/A. Subsequently, on
28.03.2016, Dr. Manoj Dhingra received another application
from IO for subsequent opinion on the nature of the injury BABRU
BHAN
along-with application, IO had also sent a sealed parcel with a
Digitally
seal of 'NSY' containing a knife. After examining the nature of signed by
BABRU BHAN
Date:
2025.02.17
injury and the knife, Dr. Manoj Dhingra gave his opinion 15:27:01
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State Vs. Yogesh @ Yogi & Ors. Page 7 of 56
Ex.PW21/B.
20. After the postmortem, the dead body of the deceased was
handed over to his relatives namely Sumit and Rajesh vide
memo Ex.PW35/F. After autopsy surgery, surgeon handed over
two plastic box containing two bullets, one extracted from head
and another from the chest of the body of the deceased with
sample seal. IO seized them vide seizure memo Ex.PW35/C.
The autopsy surgeon handed over two more sealed plastic
boxes alongwith sample seal containing two teeth and sternum
to the IO. He further handed over two sealed pulandas
containing blood gauze and blood stained clothes of the
deceased. Same were seized vide seizure memo Ex.PW35/B.
The viscera handed over in a sealed box was seized by seizure
memo Ex.PW35/E. The case property was deposited in the
malkhana.
21. ASI Ramesh Kumar PW-16 was posted at crime branch, Sector-
16, Rohini on 23.02.2016. On that day, he received a secret
information that one person namely Parvez involved in number
of criminal cases and had murdered a person would come to
Rithala metro station to meet someone. On directions of senior
officers, a raiding party was constituted. Secret information and
departure entry was made in form of DD. NO.15 Ex.PW16/A.
The raiding party reached Rithala metro station and at instance
of the secret informer, arrested accused Parvez Alam vide arrest
memo Ex.PW16/B. His personal search was conducted vide BABRU
BHAN
memo Ex.PW16/C. Thereafter, during interrogation, accused
Parvez Alam made a disclosure statement Mark PW16/D. Digitally
signed by
BABRU
BHAN
Date:
2025.02.17
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State Vs. Yogesh @ Yogi & Ors. Page 8 of 56
Arrest papers u/s 41.1 (b) (a) Cr.PC Ex.PW16/E were prepared.
The arresting officer also prepared site plan Ex.PW16/F of the
place of arrest. On next day, accused was produced in Rohini
Court.
22. On 24.02.2016, IO / Insp. Narender Kumar PW-24 along-with
HC Begraj PW-37 and Ct. Anil went to Rohini Court where he
interrogated and arrested accused Parvez Alam vide
Ex.PW37/X. IO also recorded disclosure statement
Ex.PW37/Y of accused Parvez Alam. He was produced in the
Court and was taken on 3 days PC remand.
23. On 25.02.2016, Ct. Dalip PW-40 took the Scorpio car bearing
no.DL4CNB1289 to FSL Rohini where Ms. Poonam Sharma
PW-17 inspected the car and lifted the blood stains from
various places in the car. Ms. Poonam Sharma kept the exhibits
in an envelope and handed over the same to IO. Detailed report
of PW-17 in this regard is Ex.PW17/A. After seizing the
property vide seizure memo Ex.PW42/D, IO deposited the
same in the malkhana.
24. Thereafter, on 25.02.2016, IO / Insp. Narender alongwith HC
Begraj PW-14 and Ct. Anil took out accused Parvez Alam from
the lockup and went towards Bahadurgarh by-pass. However,
they could not cross the border due to Jaat agitation so, IO went
to PP sector-9, Bahadurgarh for assistance of local police. Ct.
BABRU
BHAN
Ramesh PW-41 from PP, sector-9, Bahadurgarh accompanied
the IO to Bahadurgarh by-pass. About 50 meters ahead of the
Digitally
signed by
Bahadurgarh by-pass, there was a dried up drain on the side of BABRU
BHAN
Date:
2025.02.17
the road which was covered with the concrete slabs. On 15:27:27
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State Vs. Yogesh @ Yogi & Ors. Page 9 of 56
pointing out of accused Parvez Alam, one slab was removed
and country made pistol was recovered. It was found containing
an empty cartridge. IO prepared the sketch Ex.PW37/A of the
country made pistol. He prepared the pulanda of the country
made pistol and empty cartridge and sealed the same with seal
of 'NSY'. Seal after use was handed over to HC Begraj.
Thereafter, the aforesaid property was seized vide seizure
memo Ex.PW37/B. IO prepared site plan Ex.PW42/E of the
recovery.
25. On 26.02.2016, accused Somvir Bagdi was arrested vide memo
Ex.PW37/C from village Rampura, Tehsil Dadri, District
Bhiwani, Haryana. IO personally searched him vide memo
Ex.PW37/D and recorded his disclosure statement vide memo
Ex.PW37/E. Thereafter, accused Somvir pointed out some
places related to the present case and IO prepared a pointing
out memo Ex.PW37/F and Ex.PW37/G in this regard.
26. On 28.03.2016, he sent Ct. Anil along-with the recovered knife
to obtain opinion from the Autopsy surgeon. Ct. Anil PW-33
obtained the opinion and handed over the same to IO / Insp.
Narender PW-42.
27. On 29.03.2016, IO sent Ct. Sudhir PW-32 to deposit the
exhibits in FSL but the same were returned for want of five test
fire cartridges. The same were procured and the exhibits were
again submitted in the FSL. BABRU
BHAN
28. On 13.04.2016, Ct. Naveen PW-20 visited the places where
Digitally
signed by
headless body and chopped head of the deceased were BABRU
BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 10 of 56
recovered. PW-20 made his rough notes and thereafter,
prepared a scaled site plan Ex.PW20/A.
29. On completion of investigation, police filed the chargesheet
accusing the accused persons namely Yogesh @ Yogi, Sonu @
Chiku, Parvez Alam, Sombir @ Bagdi for offence u/s
302/201/365/120-B/34 IPC.
30. Formal charge for offence u/s 120-B/365/302/201 was framed
against the accused persons on 08.07.2016. All the accused
persons pleaded not guilty and claimed to be tried.
31. To prove its case, prosecution has examined 42 witnesses.
Many of the witnesses examined are the police officials, who
had participated in formal process of investigation. Their
respective brief roles have already been mentioned in the
foregoing part of the judgment, therefore, for sake of brevity,
their detailed testimony is not being reproduced again. The
brief of the testimonies of remaining material witnesses are
given below.
32. PW-5/Ravinder Singh has deposed that deceased Anil @
Monu was his brother-in-law. On 21.02.2016, he went to the
place where police recovered head of his brother-in-law.
Accused Yogesh and Sonu were also present there. Thereafter,
IO prepared a memo upon which the witness put his signature
at point A.
BABRU
BHAN
33. PW-7/ Ravi Kumar has deposed that in May - June 2015, he
had come to Delhi to appear in SSC examination. During that
Digitally
period, he lost his Voter ID Card. In the month of May 2016, signed by
BABRU
BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 11 of 56
police officials of PS Kanjhawala called him and informed him
that two sim card bearing no. 9871678006 and 9871677740
were got issued by using his ID Card. Witness explained to the
police that he had not got issued any such number. He also
denied his photograph in CAF. However, he admitted the
photocopies of the identification documents Ex.PW7/C and
Ex.PW7/D.
34. PW-8/ Israr Babu, Nodal Officer, Vodafone produced CAF,
CDR and cell ID Chart of mobile no.9991338910. The
documents filed by this witness are Ex.PW8/A to Ex.PW8/E.
35. PW-9/ Satish @ Bhusi has deposed that he used to work in a
private factory situated in Kishan Ganj and would travel via
RTV to go for his work. In this way, he came into contact of
Anil (deceased) and Monu @ Bona. He further deposed that on
29.01.2016, he along-with Monu @ Bona and deceased Anil
had come to Rohini Court and left at about 12 noon. Thereafter,
they purchased liquor from D Mall near Rithala and went to
Mubarakpur. He further stated that he left about 09:00 pm.
After 2-3 days, relatives of deceased Anil came to him to
inquire but he expressed his ignorance about deceased Anil.
36. PW-10 / Monu @ Bona has deposed in sync with PW-9 /
Satish @ Bhusi.
BABRU
37. PW-11 / Dayawati has deposed that deceased Anil was her son. BHAN
He was an RTV driver and used to drive between Mubarakpur
and Punjabi Bagh. On 29.01.2016, he had gone for his work. Digitally
signed by
BABRU
BHAN
That day, her brother-in-law (devar) Ravinder informed her that Date:
2025.02.17
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State Vs. Yogesh @ Yogi & Ors. Page 12 of 56
he had seen Anil in the fields of Mubarakpur with Bona and
Satish. At about 07:00-08:00 pm, she made a call to her son
who told her that he would be late. At 12:45 am, deceased again
made a call to witness and told her that Bona was calling him
for settlement of some dispute. She has further deposed that her
son did not return that night. She made inquiries from Bona but
he did not tell anything and claimed ignorance. When her son
did not return, she made a missing report on 02.02.2016.
38. PW-12 / Sarvesh Kumar, Nodal Officer, Idea Cellular
produced the CAF, Cell ID and the documents submitted by the
customer for obtaining mobile no.9212667505 and
8750007692. The documents are Ex.PW12/A to Ex.PW12/D.
39. PW-13/ Surender Kumar, Nodal Officer, Bhartiya Airtel
produced CAF, CDR and supporting certificate u/s 65-B for the
mobile no. 9871678006 and 987167740. The documents
produced by this witness are Ex.PW13/A to Ex.PW13/D.
40. PW-14/ ASI Rajbir was posted as MHC(M) PS Kanjhawala.
He has produced the record regarding deposition and taking out
of property relating to this case in and from malkhana. The
record produced by this witness is Ex.PW14/A to Ex.PW14/K.
41. PW-22 / Pankaj Kumar, Addl. DCP, Outer District has proved
sanction u/s 39 of Arms act Ex.PW22/A for prosecuting
accused Parvez Alam for the offences under Arms Act.
BABRU
BHAN
42. PW-24 / Rajeev Rajan, Nodal Officer, Tata Tally Services ltd
produced CAF, CDR, supporting certificate u/s 65B and the ID Digitally
signed by
BABRU
BHAN
documents submitted by the customer for the mobile no. Date:
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State Vs. Yogesh @ Yogi & Ors. Page 13 of 56
9250880200. The documents produced by this witness are
Ex.PW24/A to Ex.PW24/F.
43. PW-26/ V.R. Anand, Assistant Director, Ballistics, FSL,
Rohini has deposed that on 18.04.2016, three sealed parcels
were received in the office of FSL. Same were marked to him
for examination. Parcel no.1 and 2 were sealed with seal of
'SGMH Mangol Puri Delhi' and parcel no.3 was sealed with
the seal of 'NSY'. Seals were intact. Parcel no.1 and 2 were
found containing evidence bullet and parcel no.3 was found
containing a country made pistol. He test fired the bullets and
thereafter, compared the test fired bullets and cartridges with
evidence bullets and cartridges. The striation marks, firing pin
marks and breach face marks of evidence cartridge 1 were
found identical with the test cartridges TC-1 and TC-3.
Similarly, the individual characteristic in EB-2 and TB-1 to TB-
3 were also found identical. His detailed report is Ex.PW22/A.
44. PW-27 / Chander Shekhar, Nodal Officer, Bharti Airtel has
proved the Cell ID location chart of mobile no. 987167740 and
9876167800 as Ex.PW27/A.
45. PW-29/ Sumit Bajad identified dead body of deceased Anil
vide memo Ex.PW29/A.
46. PW-30 / Sunita Gupta, Senior Scientific Officer, Biology
conducted biological examination of exhibit relating to this
case. Her detailed report is Ex.PW30/A. BABRU
BHAN
47. PW-31 / ASI Rajbir Singh was also posted as MHC(M) at PS
Digitally
signed by
Kanjhawala. He has produced the record regarding deposition BABRU
BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 14 of 56
and taking out of property relating to this case in and from
malkhana. The record produced by this witness Ex.PW31/A to
Ex.PW31/G.
48. PW-34 / Ct. Vishan Singh has deposed that on 18.04.2016, on
the instructions of IO, he had collected three exhibits in sealed
condition, one sample and five live cartridges from MHC(M)
and deposited the same in FSL. After depositing the same, he
handed over the acknowledgment to MHC(M).
49. PW-41 / Ct. Ramesh had accompanied the police party during
the recovery of a pistol at instance of accused Parvez Alam.
50. The prosecution evidence was followed by the Statement of
accused u/s.313 Cr.PC wherein entire incriminating evidence
and circumstances were put to the accused persons. All the
accused persons denied the case of the prosecution and pleaded
innocence. They stated that neither they committed any offence
nor any recovery was effected from them. Further stated that
the prosecution witnesses had deposed falsely against them and
the police had planted the recovery upon them. They opted to
lead defence evidence.
51. DW-1 / Yogender has deposed that on 16.02.2016, some police
officials of Crime Branch came to their residence and took his
brother Yogesh with them. They inquired about Scorpio Car
bearing no. DL4CNB belonging to Yogesh. Yogesh told them
that said Scorpio car had been given to Balraj. Thereafter, their BABRU
BHAN
father called the said Balraj alongwith Scorpio. Police party
came in the evening and took the Scorpio car. Yogesh had Digitally
signed by
BABRU
BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 15 of 56
already been taken into custody. They further conducted
inquires about the whereabouts of accused Yogesh in the
intervening night of 29/30.01.2016 upon which witness stated
that he was at his room.
52. DW-2 / Farhin has deposed that police came at their residence
on 23.02.2016 and took away her husband. They asked the
witness about the whereabouts of accused Parvez Alam in the
intervening night of 29/30.01.2016 to which she replied that he
was at room. Thereafter, they took away her husband away.
53. DW-3 / Balraj has deposed that he had borrowed Scorpio of
accused Yogesh @ Yogi in the second week of January 2016
for some personal work. Thereafter, he did not return the said
Scorpio for about 1 ½ month and kept using the same. On
16.02.2016, he received a call from father of accused Yogesh
that the Scorpio was required. Witness accordingly went to the
house of accused Yogesh @ Yogi and handed over the Scorpio
to them.
54. Final arguments from Ld. APP for the State and Ld. Defence
Counsels appearing for accused Yogesh @ Yogi and Parvez
Alam heard.
55. Accused Sonu @ Chiku and accused Sombir @ Bagdi have
already been declared proclaimed offenders, therefore, fate of
the remaining accused persons namely Yogesh @ Yogi and
Parvez Alam only shall be decided via the present judgment. BABRU
BHAN
56. There is no eye witness to the incident which led to death ofDigitally
signed by
BABRU BHAN
deceased Anil and the entire case is based upon the Date:
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State Vs. Yogesh @ Yogi & Ors. Page 16 of 56
circumstantial evidence. The normal principle is that in a case
based upon circumstantial evidence, the circumstances, from
which an inference of guilt is sought to be drawn, must be
firmly established. Since the case is based upon circumstantial
evidence, it will be helpful to refer to the general principles of
cases revolving around the circumstantial evidence. In case
titled as Vijay Shankar Vs. State of Haryana, 2015 SC, the
Hon'ble Apex Court has made following observations :
"7. There is no eye-witness to the occurrence and the
entire case is based upon circumstantial evidence. The
normal principle is that in a case based on circumstantial
evidence is that the circumstances from which an
inference of guilt is sought to be drawn must be cogently
and firmly established; that these circumstances should be
of a definite tendency unerringly pointing towards the
guilt of the accused; that the circumstances taken
cumulatively should form a chain so complete that there
is no escape from the conclusion that within all human
probability the crime was committed by the accused and
they should be incapable of explanation of any hypothesis
other than that of the guilt of the accused and inconsistent
with their innocence vide Sharad Birdhichand Sarda vs.
State of Maharashtra, (1984) 4 SCC".
57. The law with regard to principle to be followed in a case based
upon the circumstantial evidence has been summed up by the
Hon'ble Supreme Court in Sharad Birdhichand Sarda vs.
State of Maharashtra, (1984) 4 SCC, which has acquired the
status of locus classicus on the issue. The judgment has been
followed recently by the Hon'ble Supreme Court in Nagendra
Shah Vs. State of Bihar, 2021 SC, for applying the 5 golden
principles to observe as under : Digitally
signed by
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BABRU BHAN
BHAN Date:
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State Vs. Yogesh @ Yogi & Ors. Page 17 of 56
"16. As the entire case is based on circumstantial evidence,
we may make a useful reference to a leading decision of this
Court on the subject. In the case of Sharad Birdhichand
Sarda v. State of Maharashtra2, in paragraph 153, this Court
has laid down five golden principles (Panchsheel) which
govern a case based only on circumstantial evidence.
Paragraph 153 reads thus : -
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and "must be or should
be proved" as was held by this Court in Shivaji Sahabrao
Bobade & Anr. v. State of Maharashtra where the following
observations were made:
Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can 2 (1984) 4
SCC 116.
convict and the mental distance between 'may be' and 'must
be' is long and divides vague conjectures from sure
conclusions.
(2) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty, (3) the circumstances should be of
a conclusive nature and tendency, (4) they should exclude
every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to BABRU
leave any reasonable ground for the conclusion consistent BHAN
with the innocence of the accused and must show that in all Digitally
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State Vs. Yogesh @ Yogi & Ors. Page 18 of 56
human probability the act must have been done by the
accused." (emphasis added) Paragraphs 158 to 160 of the
said decision are also relevant which read thus :
"158. It may be necessary here to notice a very forceful
argument submitted by the Additional Solicitor-General
relying on a decision of this Court in Deonandan Mishra v.
State of Bihar, to supplement his argument that if the
defence case is false it would constitute an additional link
so as to fortify the prosecution case. With due respect to the
learned Additional Solicitor-General we are unable to agree
with the interpretation given by him of the aforesaid case,
the relevant portion of which may be extracted thus:
But in a case like this where the various links as started
above have been satisfactorily made out and the
circumstances point to the appellant as the probable
assailant, with reasonable definiteness and in proximity to
the deceased as regards time and situation, . . . such absence
of explanation or false explanation would itself be an
additional link which completes the chain."
159. It will be seen that this Court while taking into account
the absence of explanation or a false explanation did hold
that it will amount to be an additional link to complete the
chain but these observations must be read in the light of
what this Court said earlier, viz., before a false explanation
can be used as additional link, the following essential
conditions must be satisfied :
(1) various links in the chain of evidence led by the
prosecution have been satisfactorily proved, (2) the said
circumstance points to the guilt of the accused with
reasonable definiteness, and (3) the circumstance is in
proximity to the time and situation.
160. If these conditions are fulfilled only then a court can BABRU
BHAN
use a false explanation or a false defence as an additional
link to lend an assurance to the court and not otherwise. On
Digitally
the facts and circumstances of the present case, this does not signed by
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State Vs. Yogesh @ Yogi & Ors. Page 19 of 56
appear to be such a case. This aspect of the matter was
examined in Shankarlal case where this Court observed
thus:
Besides, falsity of defence cannot take the place of proof of
facts which the prosecution has to establish in order to
succeed. A false plea can at best be considered as an
additional circumstance, if other circumstances point
unfailingly to the guilt of the accused."
(emphasis added)"
58. So, in order to secure conviction on the basis of circumstantial
evidence, the first and foremost duty of the prosecution is to
fully establish the circumstances, upon which the guilt of
accused is sought to be drawn. Here in this case, the prosecution
has sought to prove following circumstances against the
accused persons.
(i) Motive
(ii) Deceased was last seen in company of accused persons.
(iii) Recovery of Scorpio car stained with blood of deceased.
(iv) Recovery of chopped head.
(v) Recovery of weapon from accused Parvez Alam.
(vi) Call detail record and cell IDs of the accused persons and
deceased.
MOTIVE
59. First relevant fact sought to be proved against the accused BABRU
BHAN
persons is the motive. Motive for commission of crime is a
relevant fact, especially in a case based on circumstantial Digitally
signed by
BABRU
evidence. Generally, in cases of direct evidence connecting the BHAN
Date:
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State Vs. Yogesh @ Yogi & Ors. Page 20 of 56
accused with the commission of offence, absence or existence
of motive comparatively becomes insignificant. But where the
entire case of the prosecution rest on the circumstantial
evidence, existence of motive plays an important role to prove
the culpability or the innocence of the accused.
60. In case titled as Suresh Chandra Bhari vs State of Bihar, it
was held by Hon'ble Apex Court that sometimes motive plays
an important role and becomes a compelling force to commit a
crime and therefore motive behind crime is a relevant factor for
which evidence can be adduced.
61. The prosecution has attempted to project that one Kuldeep
alongwith his associates had beaten up accused Sonu @ Chiku,
8 to 10 months prior to the incident. Accused Sonu @ Chiku
was suspecting that he was assaulted by Kuldeep at instance of
deceased Anil. Accused Sonu @ Chiku was therefore,
harbouring grudge against deceased Anil and therefore, he
along-with other accused persons got Anil murdered for
revenge. The prosecution had apparently intended to prove the
aforesaid motive through deposition of Satish @ Ghusi PW-9,
Monu @ Bona PW-10, Dayawati PW-11. All the aforesaid
three witnesses did not depose anything about the alleged
rivalry between the deceased and accused Sonu @ Chiku.
When they were given specific suggestions about the rivalry
between Sonu @ Chiku and Anil, all the above witnesses
refused to agree and maintained their stand that they did not BABRU
BHAN
know anything about any such rivalry. Thus, the prosecution
Digitally
has failed to prove the alleged motive for commission of the signed
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State Vs. Yogesh @ Yogi & Ors. Page 21 of 56
offence against the accused persons.
DECEASED WAS LAST SEEN IN COMPANY OF THE
ACCUSED PERSONS.
62. Prosecution has made a very feeble attempt through the
evidence of Dayawati PW-11 that PW-10 Monu @ Bona had
told her after 10 days of registration of the missing report
Ex.PW15/A that on 29.01.2016, after meeting him (PW-10)
deceased had left with four persons including Sonu @ Chiku
and one Bagdi. This statement made by PW-11 Dayawati
cannot be taken in judicial calculus being hearsay evidence.
Secondly, PW-10 Monu @ Bona has not made any such
statement that on the date of incident, deceased had gone with
four persons including Sombir and Chiku. Perusal of testimony
of PW-10 Monu @ Bona would reveal that neither he has stated
in his examination-in-chief that on 29.01.2016, deceased Anil
had gone with the accused persons after meeting him nor any
such suggestion was given to PW-10 during his cross-
examination by Ld. Addl. PP for State. Thus, prosecution has
not produced any material to substantiate this last seen
circumstance.
RECOVERY OF SCORPIO CAR STAINED WITH BLOOD
OF DECEASED.
63. To prove this recovery, prosecution has produced two witnesses
i.e. SI Radhey Shyam PW-38 and Ct. Satbir PW-39. SI Radhey
Shyam PW-38 has deposed that on 16.02.2016, he received a BABRU
BHAN
secret information that accused Yogesh @ Yogi and Sonu @
Digitally
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State Vs. Yogesh @ Yogi & Ors. Page 22 of 56
Chiku, who were involved in murder of one Anil will reach
Ghevra mod at about 05:30 pm in a Gray colour Scorpio car.
PW-38 shared the information with Insp. Sunil Kumar and after
verifying the authenticity of the secret information, Insp. Sunil
Kumar directed PW-38 to take immediate action. After getting
approval from his senior, SI Radhey Shyam constituted a
raiding party consisting of many police officials including Ct.
Satbir PW-39. Thereafter, they left the PS vide DD NO.38X.
64. The aforesaid police party laid a trap at the specified place. At
about 05:30 pm, secret informer pointed out towards one
Scorpio car bearing reg. no. DL4CNB1289 which was coming
from Neelwal village side. The car was stopped and two
persons sitting in the car were apprehended. Their names were
subsequently revealed as accused Yogesh @ Yogi and Sonu @
Chiku (absconding). They were arrested vide memos
Ex.PW38/A and Ex.PW38/B. SI Radhey Shyam recorded their
disclosure statements Ex.PW38/E and Ex.PW38/F. The
Scorpio car was seized vide seizure memo Ex.PW38/G. Similar
statement regarding the aforesaid arrest and recovery has been
made by Ct. Satbir PW-39.
65. In cross-examination, Ld. Defence Counsel asked specific
question about the availability and efforts made by PW-38 for
joining of public witnesses. Both the witnesses agreed that the
place of arrest was a public road and general public was passing
through the same but they did not make any effort to join the
public witnesses. The argument made by Ld. Defence Counsel BABRU
BHAN
is that firstly, the police party did not join the public persons
Digitally
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State Vs. Yogesh @ Yogi & Ors. Page 23 of 56
despite their availability. Secondly, there are many
inconsistencies in their testimonies regarding the time, place
and manner of arrest, therefore, same cannot be relied upon.
66. To counter the aforesaid argument, Ld. Addl. PP for State has
argued that testimony of a police witness deserves same
credibility as the testimony of any other witness. Evidence of
an official witness has to be approached in the same manner as
the testimony of an independent witness. In support of the
argument, Ld. Addl. PP for State has placed reliance upon
observations made by Hon'ble Delhi High court in case titled
as Ravi Seikhar vs State on 15 December, 2014. The relevant
observations are :
"31. As regards, the first submission that despite availability,
no public witness was joined by the police, as such
recovery is doubtful, same is devoid of any merit. The
recovery has been effected pursuant to the disclosure
statement made by the appellants - Mohd. Rizwan and
Afzal Hussain. In State (Govt. of NCT of Delhi) v
Sunil AIR 2001 Crl. LJ 506, the Hon'ble Apex Court took
the view that recovery of an object pursuant to the
information supplied by the accused in custody is different
from the searching endeavour envisaged in Chapter VII of
the Code. Moreover, the mere fact that no independent
witness was joined in the proceedings itself is not sufficient
to render the recovery doubtful. The recovery of jewellery
from accused Ravi from his shop stands proved from the
testimony of PW6 HC - Mangal Ram and PW9 - SI Naresh
Kumar. Despite cross examination nothing material could
be elicited to discard their testimony. The testimony of
police personnel have to be treated in the same manner as
testimony of any other witnesses and there is no principle BABRU
of law that without corroboration by independent witnesses BHAN
their testimony cannot be relied upon. The presumption that
Digitally
a person acts honestly applies, as much in favour of police signed by
BABRU BHAN
Date:
personnel as of other person and it is not a proper judicial 2025.02.17
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State Vs. Yogesh @ Yogi & Ors. Page 24 of 56
approach to distrust and suspect them without good
ground. It will all depend upon the facts and circumstances
of each case and no principle of general application can be
laid down as held in Karanjit Singh Vs. State (Delhi
Admn.) 2003 5 SCC 291, C. Ronald & Anr. Vs. Union
Territory of Andaman & Nicobar Islands, (2001) 1 SCC
(Crl.) 596. In Sunil Clifford Daniel vs. State of Punjab,
2012 11 SCC 205, Apex Court referred to State Govt. of
NCT of Delhi v. Sunil and Anr., (2001) 1 SCC 652, wherein
Court held as under:-
"20. ... But if no witness was present or if no person had agreed
to affix his signature on the document, it is difficult to lay
down, as a proposition of law, that the document so
prepared by the police officer must be treated as tainted and
the recovery evidence unreliable. The court has to consider
the evidence of the investigating officer who deposed to the
fact of recovery based on the statement elicited from the
accused on its own worth.
21. We feel that it is an archaic notion that actions of the police
officer should be approached with initial distrust.....At any
rate, the court cannot start with the presumption that the
police records are untrustworthy. As a proposition of law
the presumption should be the other way round. That
official acts of the police have been regularly performed is
a wise principle of presumption and recognised even by the
legislature. Hence when a police officer gives evidence in
court that a certain article was recovered by him on the
strength of the statement made by the accused it is open to
the court to believe the version to be correct if it is not
otherwise shown to be unreliable. It is for the accused,
through cross-examination of witnesses or through any
other materials, to show that the evidence of the police
officer is either unreliable or at least unsafe to be acted
upon in a particular case. If the court has any good reason
to suspect the truthfulness of such records of the police the
court could certainly take into account the fact that no other
independent person was present at the time of recovery. But BABRU
BHAN
it is not a legally approvable procedure to presume the
police action as unreliable to start with, nor to jettison such
Digitally
action merely for the reason that police did not collect signed by
BABRU BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 25 of 56
signatures of independent persons in the documents made
contemporaneous with such actions."
32. There is absolutely no reason to disbelieve the testimony
of police official as it is not the case of the appellant that
any of the police personnel was known to him from
earlier or they had any ill-will or grudge against him to
falsely implicate in this case while leaving all the
jewellers in Delhi."
67. In the aforesaid judgment, the Hon'ble High Court of Delhi has
clarified that the testimony of police personnel has to be treated
in the same manner as the testimony of any other witness and
there is no principle of law that without corroboration by
independent witness, their testimonies cannot be relied upon.
The presumption that a person acts honestly applies as much in
favour of the police personnel as of other person and it is not a
good judicial approach to suspect truthfulness of police
witnesses without any good reason.
68. Now, here in this case, the cross-examination of PW-38 would
reveal that on being asked a specific question, PW-38 replied
that he did not lodge any DD entry regarding receipt of secret
information. Further, all the police officials who participated in
the raiding team were not made witnesses. No written
permission for the raid was obtained. PW-38 further agreed to
the suggestion that they did not barricade the road to stop the
suspected vehicle. Ld. Defence Counsel further asked about the
registration number and details of three private vehicles used BABRU
BHAN
by the raiding party to reach at the spot of arrest but the witness
could not provide any detail. He also failed to tell the colour of Digitally
signed by
BABRU
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State Vs. Yogesh @ Yogi & Ors. Page 26 of 56
the clothes worn by the accused Yogesh and Sonu @ Chiku at
the time of arrest. PW-38 further accepted the question that
secret informer had not provided the information regarding
registration number of the suspected vehicle. PW-38 further
stated that secret informer had not stated that he could identify
the accused persons by their faces. Ct. Satbir PW-39 had also
deposed on the same line and his cross-examination was also
conducted on the same lines and his responses are also identical
to PW-38.
69. There is no dispute on the legal preposition that the official
police witnesses are presumed to be as truthful witnesses as
any other independent public witnesses. Their testimony has to
be approached in the similar manner without any suspicion.
However, they being part of the investigation, shall always be
interested in its success to some extent, therefore, their
testimony is required to be visited with an extra element of
caution. Thus, if the public witnesses are available, they should
atleast make efforts to join those witnesses. Here in this case,
no such efforts were made despite admitted availability of the
public witnesses. Further, as PW-38 and PW-39 have admitted
in their respective cross-examinations, they could not recall the
registration number of the vehicles in which they had reached
the spot of arrest. The secret informer had not told them the
registration number of the car in which the accused persons
were coming. The secret informer had also not stated to them
that he could identify the accused persons by their faces. In BABRU
BHAN
these circumstances, this Court has completely failed to
understand that how the raiding party managed to identify and Digitally
signed by
BABRU
BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 27 of 56
arrest the correct persons involved in the offence in absence of
the basic details of identification of the persons and the vehicle
as well. Under the circumstances, the arrest of accused Yogesh
@ Yogi and Sonu @ Chiku and the recovery of Scorpio car
would become doubtful to some extent.
70. Further case of the prosecution is that the Scorpio car recovered
from the accused persons was got inspected through FSL
officials and some material exhibits smeared with blood stains
were lifted from the car. Same were sent to FSL for examination
and as per report Ex.PW30/A, male blood was detected from
the strap mat and some stone pieces. Subsequently, same were
analysed to detect the DNA of the deceased upon the same. As
per report Ex.PW30/DA, Ex.8c, Ex.8e and Ex.8h (exhibits
given by the FSL upon the piece of strap, piece of mat and piece
of stone lifted from the Scorpio), the DNA of deceased was
detected. The argument of the prosecution in this regard is that
since the DNA of the deceased was detected from the exhibits
lifted from the Scorpio car which was recovered from accused
Yogesh @ Yogi and Sonu @ Chiku, therefore, the said recovery
is relevant u/s 27 of Indian Evidence Act.
71. Being relevant to the aforesaid context, the testimony of the
official who had lifted the aforesaid exhibits from the Scorpio
car may be analysed at this stage. Ms. Poonam Sharma,
Assistant Director (Biology) PW-17 has deposed that on
25.02.2016, a Scorpio car bearing no. DL4CNB129 was
brought to FSL premises by officials of PS Kanjhawala for
BABRU
inspection. She along-with her team members, inspected the car BHAN
and detected blood stains. Same were lifted. Thereafter, Digitally
signed by
BABRU
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State Vs. Yogesh @ Yogi & Ors. Page 28 of 56
exhibits were kept in separate envelopes and were handed over
to IO. She prepared her detailed report Ex.PW17/A in this
regard. During cross-examination, Ld. Counsel for the accused
put a specific question regarding the sealing of the envelopes
containing the aforesaid exhibits. This witness fairly admitted
that she had handed over stapled envelopes to IO and the IO
had not sealed the same in her presence. IO /Insp. Narender
PW-42 has also deposed in his court statement that he seized
the aforesaid exhibits with seal of 'NSY' and seized the same
vide seizure Ex.PW42/D on 25.02.2016. Perusal of seizure
memo Ex.PW42/D would reveal that the exhibits were seized
by Insp. Narender in presence of Ct. Dalip PW-40 and not in
presence of any other independent witness. ASI Rajbir PW-14
has deposed that the aforesaid exhibits were handed over to Ct.
Sudhir vide RC no. 46/21/16 Ex.PW14/H and were got
deposited in FSL vide acknowledgment Ex.PW14/I. Ct. Sudhir
PW-32 has also made the same statement regarding the date of
deposition of the aforesaid exhibits in the FSL.
72. So, the Scorpio car was allegedly recovered from accused
Yogesh @ Yogi and Sonu @ Chiku on 16.02.2016. It was got
inspected through the FSL officials on 25.02.2016. The exhibits
which were lifted by the FSL official were not handed over to
IO in sealed condition. Apparently, same were seized by the IO
subsequently as the seizure memo Ex.PW42/D was prepared in
presence of HC Dalip PW-40 only and not in presence of FSL
officials, who had lifted the exhibits. Thereafter, same were
BABRU
sent to FSL for analysis on 29.03.2016. So, the exhibits which BHAN
were lifted by FSL officials remained lying in the malkhana of
Digitally
signed by
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BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 29 of 56
the PS for more than one month. Although the IO has stated
that the seal used for sealing the exhibits collected by the FSL
officials was handed over to Ct. Dalip PW-40 but this Court
cannot overlook the fact that Ct. Dalip was also posted in the
same PS and cannot be considered as an independent witness
who could not have been influenced by the IO. Thus, taking
note of the above circumstances, especially the fact that FSL
official Poonam Sharma PW-17 had handed over the exhibits
to the IO in unsealed condition and the delay in sending the
exhibits to FSL, the possibility of planting of the blood of the
deceased in the Scorpio car cannot be ruled out. Thus, it could
not be safe to place much reliance on FLS report Ex.PW30/A.
73. So, firstly, the recovery of Scorpio car from accused Yogesh @
Yogi and Sonu @ Chiku in itself is doubtful. Even if the
recovery is accepted as genuine, the delay in lifting the exhibits
and thereafter, further delay in sending the same to the FSL
shall definitely bring the detection of blood from the Scorpio
car under the shadow of doubt.
RECOVERY OF CHOPPED HEAD
74. Although this Court has already observed above that the time,
place and manner of arrest of accused Yogesh @ Yogi and his
associate Sonu @ Chiku appears to be doubtful but still it has
to analyse the genuineness of all the evidence the prosecution
has produced to prove the culpability of the accused persons. In
that pursuit, one more circumstance which has been heavily
relied upon by the prosecution is the recovery of the chopped BABRU
BHAN
head of the deceased at instance of accused Yogesh @ Yogi and
Sonu @ Chiku. The case of the prosecution is that after arrest, Digitally
signed by
BABRU
BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 30 of 56
both the aforesaid accused persons had made disclosure
statements regarding their involvement in the offence in
question. They had also disclosed the place where the head of
the deceased was disposed off and in pursuant to the
information given, head was subsequently recovered at
instance of accused persons.
75. In order to prove aforesaid facts, prosecution has first produced
two witnesses i.e. SI Radhey Shyam PW-38 and Ct. Satbir PW-
39. PW-38 SI Radhey Shyam has deposed that on 16.02.2016,
he received a secret information that two persons who were
involved in murder of Anil @ Monu would be coming to
Ghevra mod. In pursuant to the information, a raiding party was
constituted and both the aforesaid accused persons namely
Yogesh @ Yogi and Sonu @ Chiku were arrested. They made
disclosure statements Ex.PW38/E and Ex.PW38/F. In the
aforesaid disclosure statements, both the aforesaid accused
persons not only narrated the manner in which the offence was
committed but also disclosed the place where the dead body of
the deceased and the chopped head were disposed off.
Thereafter, SI Radhey Shyam transferred the information to PS
Kanjhawala and also produced both the accused persons at
Rohini Court on 17.02.2016. Insp. Dinesh Kumar PW-25 was
investigating the matter for the time being in absence of IO /
Insp. Narender. He has deposed that on 17.02.2016, he received
an information from crime branch regarding arrest of accused
Yogesh @ Yogi and Sonu @ Chiku. Insp. Dinesh PW-25 was
BABRU
further informed that aforesaid two accused persons were to be BHAN
produced before the concerned MM on 17.02.2016. On
Digitally
signed by
BABRU
BHAN
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State Vs. Yogesh @ Yogi & Ors. Page 31 of 56
reaching the Court, Insp. Dinesh came to know that both the
aforesaid accused persons had been remanded to JC. On next
day i.e. 18.02.2016, Insp. Dinesh visited Rohini Court and
formally arrest accused Yogesh @ Yogi and Sonu @ Chiku.
Insp. Dinesh also recorded their disclosure statements
Ex.PW25/B and Ex.PW25/C wherein they again disclosed the
same facts which they had disclosed in their earlier disclosure
statements given to SI Radhey Shyam PW-38.
76. Hon'ble Supreme Court of India in case titled as Mohd. Abdul
Hafis Vs. State of Andhra Pradesh has held that with
reference to section 27 of Indian Evidence Act when an IO is
dealing with more than one accused then he is required to state
and record who gave the information and what words were used
by him so that a recovery pursuant to the information received
may be connected to the person giving the information, so as to
provide incriminating evidence against the person.
77. The law relating to joint or simultaneous disclosure statements
made by two or more accused persons was further discussed by
Hon'ble Chhatisgarh High Court in case titled as Dinesh
Chandrakar Vs. State of Chhattisgarh decided on
02.01.2023. The relevant discussion is reproduced below :
(24) The Supreme Court thereafter in the matter of State
(NCT of Delhi) v. Navjot Sandhu8 while considering the
issue as to joint or simultaneous disclosure made by two
or more accused persons in custody held that such a
disclosure do not get out of the purview of Section BABRU
27 altogether and held in Para-14 as under: BHAN
"Joint disclosures
Digitally
signed by
BABRU
145. ...... 'A person accused' need not necessarily be a BHAN
Date:
2025.02.17
single person, but it could be plurality of accused. It 15:31:16
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State Vs. Yogesh @ Yogi & Ors. Page 32 of 56
seems to us that the real reason for not acting upon the
joint disclosures by taking resort to Section 27 is the
inherent difficulty in placing reliance on such
information supposed to have emerged from the mouths
of two or more accused at a time. In fact, joint or
simultaneous disclosure is a myth, because two or more
accused persons would not have uttered informatory
words in a chorus. At best, one person would have made
the statement orally and the other person would have
stated so substantially in similar terms a few seconds or
minutes later, or the second person would have given
unequivocal nod to what has been said by the first
person. Or, two persons in custody may be interrogated
separately and simultaneously and both of them 7 AIR
1983 SC 367 8 AIR 2005 SC 3820 : 2005 (11) SCC 600
CRA-194-2013, CRA-232-2013 & CRA-277-2013 may
furnish similar information leading to the discovery of
fact. Or, in rare cases, both the accused may reduce the
information into writing and hand over the written notes
to the police officer at the same time. We do not think
that such disclosures by two or more persons in police
custody go out of the purview of Section 27 altogether.
If information is given one after the other without any
breakalmost simultaneously, and if such information is
followed up by pointing out the material thing by both
of them, we find no good reason to eschew such
evidence from the regime of Section 27. However, there
may be practical difficulties in placing reliance on such
evidence. It may be difficult for the witness (generally
the police officer), to depose which accused spoke what
words and in what sequence. In other words, the
deposition in regard to the information given by the two
accused may be exposed to criticism from the stand
point of credibility and its nexus with discovery.
Admissibility and credibility are two distinct aspects, as
pointed out by Mr. Gopal Subramanium. Whether and to
what extent such a simultaneous disclosure could be
relied upon by the Court is really a matter of evaluation BABRU
of evidence. With these prefaratory remarks, we have to BHAN
refer to two decisions of this Court which are relied upon
by the learned defence counsel." Digitally
signed by
BABRU BHAN
Date:
2025.02.17
15:31:25
+0530
State Vs. Yogesh @ Yogi & Ors. Page 33 of 56
(25) The aforesaid principle of law laid with regard to
joint or simultaneous disclosure by two or more accused
persons in the matter of Navjot Sandhu (supra) was
followed with approval by their Lordships of Supreme
Court in the matter of Kishore Bhadke v. State of
Maharashtra9. Their Lordships pertinently observed as
under:-
"34. The fact where the dead body of deceased Raman
was disposed, was disclosed by both the accused Nos.2
and 3 to the Investigating Officer in the presence of SK
Idris (PW 2) one after another on 12th May 2003 at 3.05
hrs and 3.25 hrs. respectively. The discovery was made
only after accused Nos.2 and 3 were taken together by
the police to the spot in the neighbouring State (Madhya
9 (2017) 3 SCC 760 CRA-194-2013, CRA-232-2013 &
CRA-277-2013 Pradesh), where the recovery
Panchnama was recorded bearing Exh.76A. In other
words, the disclosure of the relevant fact by accused
No.3 to the Investigating Officer preceeded the
discovery of dead body from the disclosed spot at the
instance of both the accused Nos. 2 and 3. It was not a
case of recording of statement of accused No.3 after
discovery nor a joint statement of accused Nos.2 and 3,
but disclosure made by them separately in quick
succession to the Investigating Officer, preceding the
discovery of the fact so stated. The fact disclosed by
them, therefore, and the discovery made at their
instance, was admissible against both the accused in
terms of Section 27 of the Evidence Act."
78. In the aforesaid decision, Hon'ble Supreme Court and Hon'ble
High Court has clarified that there is no legal mandate to keep
simultaneous disclosure statements made by two or more
accused persons out of the preview of Section 27 of the Indian
Evidence Act. However, there is a practical difficulty in placing
reliance on such joint statements because two or more accused BABRU
BHAN
persons cannot utter informatory words in chorus. One of the
statement is bound to be made few seconds or few minutes later Digitally
signed by
BABRU
BHAN
Date:
2025.02.17
15:31:45
+0530
State Vs. Yogesh @ Yogi & Ors. Page 34 of 56
than the first one. There may be one more situation where two
persons in custody may be interrogated separately and
simultaneously and both of them may furnish similar
information leading to discovery of fact. Or in some cases, they
may give information in writing. If information is given one
after the other without any break almost simultaneously and if
information is followed by pointing out the material thing, there
is no reason to reject such statements.
79. Now, returning to the facts of this case. Accused Yogesh @
Yogi and Sonu @ Chiku were arrested by a raiding party of
crime branch led by SI Radhey Shyam PW-38. SI Radhey
Shyam recorded two disclosure statements of the accused
persons Ex.PW38/E and Ex.PW38/F. Both these disclosure
statements are admittedly in handwriting of SI Radhey Shyam
PW-38 which means that same were recorded one after another.
It is not the case of the prosecution that these statements were
recorded separately or simultaneously. These statements were
recorded on 16.02.2016 whereas the chopped head was
discovered on 21.02.2016. That alleged recovery of the
chopped head was made after five days of the disclosure
statement recorded by SI Radhey Shyam. Thus, there was no
immediate recovery after the aforesaid disclosure statements
were made. SI Radhey Shyam PW-38 nowhere clarified that
which of the accused had first made the disclosure statement.
Under the circumstances, the disclosure statement Ex.PW38/E
made by accused Yogesh @ Yogi before SI Radhey Shyam PW- BABRU
BHAN
38 cannot be read against the accused.
80. Subsequently, after accused Yogesh @ Yogi and Sonu @ Chiku Digitally
signed by
BABRU
BHAN
Date:
2025.02.17
15:31:53
+0530
State Vs. Yogesh @ Yogi & Ors. Page 35 of 56
were formally arrested by Insp. Dinesh on 18.02.2016. Insp.
Dinesh PW-25 again recorded the disclosure statement
Ex.PW25/C of accused Yogesh @ Yogi and statement
Ex.PW25/B of accused Sonu @ Manoj wherein both the
accused persons again disclosed about their involvement in the
offence in question and the whereabouts of the chopped head
of the deceased. Firstly, before the aforesaid disclosure
statements were made by accused Yogesh @ Yogi and Sonu @
Chiku on 18.02.2016, these accused persons had already made
similar statement before SI Radhey Shyam PW-38. Thus, the
accused persons did not disclose any new fact to the IO of this
case. The facts disclosed in the aforesaid two disclosure
statements Ex.PW25/C and Ex.PW25/B were already in the
knowledge of the police, therefore, these statements cannot be
taken into judicial account. Further, during cross-examination
of PW-25, Ld. Defence Counsel put a specific question as to
whose disclosure statement was recorded first. In response to
the said question, Insp. Dinesh PW-25 fairly conceded that he
did not remember that whose disclosure statement was
recorded first in time. Both these statements are in the
handwriting of Insp. Dinesh Kumar which means that one was
recorded after another.
81. In case titled as Kavinder & Ors. Vs. State of Delhi, Cr.L MB
No. 912 of 2004, Hon'ble Supreme Court of India made
following observations which are relevant for evaluating the
evidentiary value of disclosure statements made by more than
BABRU
one accused. The relevant observations are as under:- BHAN
"16. There is no gainsaying that a disclosure statement is an important Digitally
signed by
BABRU
piece of evidence especially when the same leads to the recovery of BHAN
Date:
2025.02.17
15:32:00
+0530
State Vs. Yogesh @ Yogi & Ors. Page 36 of 56
an incriminating fact or article. The Investigating Officer
concerned, therefore, has to take care to associate with the process
of investigation, independent witnesses to support the making of
the alleged disclosure. He cannot choose the easy course of
recording disclosures in the presence of members of his own team
or a police stock witness. The Supreme Court has, in the decisions
referred to above, emphasized the need for independent witnesses
being associated with disclosure statements and recoveries and so
has this court on more than one occasions. That apart the manner
in which the disclosure statements are alleged to have been
recorded is by itself doubtful. According to PW-4 Head Constable
Ved Prakash, all the accused persons were brought out of lock up
and interrogated leading to their disclosures but who was the first
to make disclosure, the witness cannot recall. If the witness were to
be believed each one of the persons were interrogated separately
and each one of the disclosure statements recorded by the
Investigating Officer before him. One could well ask that if the first
disclosure statement had already disclosed the place where the axe
and the iron pipe allegedly used for committing the crime was kept,
where was the room for any other accused to make any disclosure
of the said fact. Recording of any subsequent disclosure would
therefore be a wasteful effort. The fact that all the accused persons
were taken together in a gypsy and driven to the MCD flats where
all of them together pointed out the place where the axe and pipe
jointly recovered, is not only doubtful but legally inadmissible. The
question whether a joint recovery can be made and if so, whether
the same is admissible in law was examined by their lordships
in Chander Pal v. State 1998 II AD(Cr.)Delhi 753 . Rejecting the
contention that such a recovery can also be used as an
incriminating evidence against the accused persons. the court
observed:-
''Perusal of Ex.PW-4/G suggests that Chander Pal son of Janki
Prashad and accused Kishan Lal son of Shanker Lal under
police custody, voluntarily went ahead and after removing the
earth from a pit by their own hands, took out and produced the
clothes i.e. pant and bushirt of white colour stated to be that of
deceased Nand Kishore. It is clearly suggested that both the
accused persons voluntarily went ahead, removed the earth
from a pit by their own hands took out and produced the
clothes. (xxx xx). There is no manner of doubt that Ex. PW4/G
clearly indicates that both accused together reached the place,
removed the earth from the pit jointly by their own hands and BABRU
BHAN
both took out and produced the clothes. It is as clear as anything
from memos Ex.PW/4D and Ex.PW-4/G that the recovery of
Digitally
piece of muffler and the clothes are nothing but by both the signed by
BABRU
BHAN
accused jointly and from this it can not be said as to which of Date:
2025.02.17
the accused produced which article and, therefore, the 15:32:08
+0530
State Vs. Yogesh @ Yogi & Ors. Page 37 of 56
recoveries of muffler an clothes vide either of these memos
cannot be regarded legal and admissible in law, as
contemplated under Section 27 of the Indian Evidence Act.''
17. In the present case, the recovery marked Ex.PW4/L relating to the
alleged weapons of offence, the axe and pipe, is said to have been made at
the instance of all the five accused persons together. Such a recovery is, in
the light of the above pronouncement of the Supreme Court, worthless in
the the eye of law and hence can not be pressed into service against the
accused leave alone made a basis for finding them guilty of a capital
offence. This is true even about the alleged recovery of the clothes of the
deceased in terms of Ex.PW4/M, which recovery is also made at the
instance of all the accused persons jointly."
82. Thus, two sets of disclosure statements were recorded by two
officers. The recovery was effected after five days of the first
set of the disclosure statements. None of the police officer has
clarified that which of the disclosure statement was made first
in time. Under the circumstances, these disclosure statements
which allegedly led to recovery of the chopped head and some
clothes of the deceased, have to be viewed with suspicion.
Prosecution has not produced any material where from this
Court can gather that same inspire confidence. Thus, this Court
holds that the evidence allegedly recovered on the basis of
information, allegedly given by the accused persons namely
Yogesh @ Yogi in form of aforesaid two disclosure statements
would be tainted evidence.
RECOVERY OF WEAPON FROM ACCUSED PARVEZ
ALAM.
83. It is further the case of the prosecution that on basis of BABRU
BHAN
information given by accused Yogesh @ Yogi and Sonu @
Chiku, accused Parvez Alam was arrested who got recovered a Digitally
signed by
BABRU
BHAN
Date:
2025.02.17
15:32:16
+0530
State Vs. Yogesh @ Yogi & Ors. Page 38 of 56
country made pistol. Subsequently, ballistic report confirmed
that the bullet extracted from the body of the deceased during
postmortem was discharged from the same weapon which was
recovered at instance of accused Parvez Alam. This evidence if
proved, shall be strongest incriminating evidence against all the
accused persons.
84. To prove the recovery and arrest of accused Parvez Alam, the
prosecution has first placed reliance upon testimony of PW-16
ASI Ramesh Kumar. ASI Ramesh Kumar has submitted that on
23.02.2016, he was posted as AHTU Crime Branch. On that
day, acting on a secret information (registered via DD No.15
Ex16/A), a police party reached Rithala Metro Station and
arrested accused Parvez Alam vide arres80t memo
Ex.PW16/B. He gave a disclosure statement Mark PW16/D. In
the said disclosure statement, accused Parvez Alam confessed
his involvement in the present case. Next day, on 24.02.2016,
accused Parvez Alam was produced before the Ld. MM. IO /
Insp. Narender PW-42 moved an application before the Ld.
MM to interrogate accused Parvez Alam and recorded his
disclosure statement Ex.PW37/Y. On the same day, accused
Parvez Alam told the IO about the places where the crime was
committed, the death body was dumped, the knife was thrown,
the clothes of the deceased were burnt and the pistol was
thrown. A memo Ex.PW37/Z was prepared in this regard by the
IO. Thereafter, police party proceeded towards the place
BABRU
situated in Bahadurgarh where accused Parvez Alam stated to BHAN
have disposed of the pistol. However, due to on going Jaat
Digitally
signed by
agitation, police party could not reach there and returned back. BABRU BHAN
Date:
2025.02.17
15:32:26
+0530
State Vs. Yogesh @ Yogi & Ors. Page 39 of 56
On the next day, i.e. on 25.02.2016, it again went to the said
place and recovered the pistol vide memo Ex.PW37/B. An
empty cartridge was still there in the chamber of the pistol.
Thereafter, IO / Insp. Narender PW-42 prepared the sketch of
the country made pistol and cartridge Ex.PW37/A and sealed
the country made pistol with seal of 'NSY' and handed over the
seal to HC Begraj PW-37. After sealing the same, IO seized it
vide seizure memo Ex.PW42/D.
85. The testimony of Dr. Manoj Dhingra is necessary to be
discussed here being relevant to the point under consideration.
He has deposed that he had conducted the postmortem on the
body of the deceased. During postmortem, one bullet was
extracted from the chest and another was extracted from right
temporal lobe. The bullets were sealed in a separate pulanda
and were handed over to IO. IO seized the same vide memo
Ex.PW35/C.
86. The aforesaid bullets and pistol were sent to FSL for analysis.
Sh. B.R. Anand, Assistant Director, Ballistics examined the
same vide his detailed report Ex.PW26/A. He has opined in
this report that individual characteristic of striation marks
present on the evidence bullet Mark Ex.EB-2 and test fired
bullet Mark TB1 and TB3 where compared under comparison
microscope and were found identical. So as per report, the
bullet extracted from the body of the deceased was discharged
from the pistol which was recovered at instance of accused
BABRU
Parvez Alam. BHAN
Digitally
87. The first argument raised by Ld. Defence Counsel regarding the signed by
BABRU
BHAN
Date:
2025.02.17
15:32:49
+0530
State Vs. Yogesh @ Yogi & Ors. Page 40 of 56
recovery of the pistol at the instance of accused Parvez Alam is
that accused Parvez Alam was arrested by crime branch on
23.02.2016 and his disclosure statement Mark PW16/D was
recorded wherein he disclosed about his involvement in the
present case and also about the place of disposal of the country
made pistol. However, the testimony of PW-16 Ramesh would
reveal that no efforts were made to recover the pistol on the date
of arrest despite the fact that accused Parvez Alam had already
revealed that place where he had concealed the pistol. Next
argument made in this regard is that accused Parvez Alam was
formally arrested by Insp. Narender on 24.02.2016 and his
disclosure statement Ex.PW37/Y was recorded wherein he
again repeated the same facts and disclosed about the place
where the pistol was disposed of but no efforts to recover the
same were made that day also. The police party visited the
place on 25.02.2016 and made the alleged recovery of pistol at
instance of accused Parvez Alam. The contention raised by ld.
Counsel is that the investigating agency caused delay of about
2 days in recovery of the pistol after accused Parvez Alam had
revealed the place of its concealment. No plausible explanation
has been furnished by the prosecution in this regard at any stage
of trial.
88. The next argument made in this regard by Ld. Defence Counsel
is that as per Dr. Manoj Dhingra PW-21, the cause of death of
the deceased was due to the injury caused by a rifled fire arm.
Contrary to the statement of PW-21 Dr. Manoj Dhingra, BABRU
BHAN
Ballistics Expert PW-26, V.R. Anand nowhere mentioned in his
report that the pistol examined by him was a rifled fire arm. Ld. Digitally
signed by
BABRU
BHAN
Date:
2025.02.17
15:32:59
+0530
State Vs. Yogesh @ Yogi & Ors. Page 41 of 56
Counsel has also argued that as per sketch of the pistol
Ex.PW37/A, the length of the barrel was 12.2 cm. The length
of the barrel assumes importance here because to cause a rifled
fire arm injury, the barrel of the weapon should be sufficiently
long with spiral grooves, for only then could the bullet spin and
as a result of spinning bullets hitting the body, a rifled injury
shall occur. Here in this case, the fire arm was having a small
barrel of 12.2 cm, therefore, it lacked the sufficient length to
give that spin to the bullet which could have caused an injury
identifiable as a rifled fire arm injury during the medical
examination. Thus, as per ld. Defence counsel, the report of the
doctor who conducted the postmortem and the one given by
ballistic expert are not in harmony with each other, same are
contradictory.
89. On the other hand, making his counter submissions on the
aforesaid argument, Ld. Addl. PP for State has submitted that
as far as recovery of the weapon is concerned, the police
witnesses have satisfactorily explained the circumstances under
which the recovery was delayed for two days. Further,
whatever may be the argument on the length of the barrel or the
rifled fire arm injury, the fact remains that as per the ballistic
report, one of the bullet extracted from the body of the deceased
was discharged from the same weapon which was recovered
from accused Parvez Alam.
90. Starting with the recovery of the weapon. The requirements of
law that are needed to be complied with before accepting the
BABRU
BHAN
evidence of recovery, have been elaborated by the Hon'ble
Digitally
signed by
BABRU BHAN
Date:
2025.02.17
15:33:15
+0530
State Vs. Yogesh @ Yogi & Ors. Page 42 of 56
Apex Court of India in case titled as Ramanand @ Nand Lal
Bharti Vs. State of Uttar Pradesh, 2022 SC. The relevant
observations are as under :
"53. If, it is say of the investigating officer that the accused
appellant while in custody on his own free will and
volition made a statement that he would lead to the place
where he had hidden the weapon of offence along with his
blood stained clothes then the first thing that the
investigating officer should have done was to call for two
independent witnesses at the police station itself. Once the
two independent witnesses arrive at the police station
thereafter in their presence the accused should be asked to
make an appropriate statement as he may desire in regard
to pointing out the place where he is said to have hidden
the weapon of offence. When the accused while in custody
makes such statement before the two independent
witnesses (panch witnesses) the exact statement or rather
the exact words uttered by the accused should be
incorporated in the first part of the panchnama that the
investigating officer may draw in accordance with law.
This first part of the panchnama for the purpose of Section
27 of the Evidence Act is always drawn at the police
station in the presence of the independent witnesses so as
to lend credence that a particular statement was made by
the accused expressing his willingness on his own free will
and volition to point out the place where the weapon of
offence or any other article used in the commission of the
offence had been hidden. Once the first part of the
panchnama is completed thereafter the police party along
with the accused and the two independent witnesses
(panch witnesses) would proceed to the particular place as
may be led by the accused. If from that particular place
anything like the weapon of offence or blood stained BABRU
BHAN
clothes or any other article is discovered then that part of
the entire process would form the second part of the Digitally
signed by
BABRU
BHAN
Date:
2025.02.17
15:33:22
+0530
State Vs. Yogesh @ Yogi & Ors. Page 43 of 56
panchnama. This is how the law expects the investigating
officer to draw the discovery panchnama as contemplated
under Section 27 of the Evidence Act. If we read the entire
oral evidence of the investigating officer then it is clear
that the same is deficient in all the aforesaid relevant
aspects of the matter.
...
55. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence".
91. Here in this case, accused Parvez Alam was arrested in the Court on 24.02.2016. Insp. Narender PW-42 recorded his disclosure statement Ex.PW37/Y on the same date. It may be argued on behalf of the State that since the accused persons were arrested in the Court, it was not possible for the IO to arrange two independent witnesses to witness the disclosure statement. The IO has stated in his Court statement that he had received the information regarding arrest of accused Parvez Alam in pursuant to the said information, he had come to the Court and thereafter arrested the accused and recorded his disclosure statement. Since the IO had received the information about the arrest of the accused Parvez Alam before going to the Court, he could have easily arranged two independent witnesses for the Panchnama, but no such exercise was carried out by him. In absence of the independent witness, much credibility cannot be attached with the disclosure statement.
92. Secondly, when an accused makes a disclosure statement, the BABRU BHAN exact statement or the exact words uttered by the accused, Digitally should be incorporated in the first part of the Panchnama, signed by BABRU BHAN Date:
2025.02.17 15:33:29 +0530 State Vs. Yogesh @ Yogi & Ors. Page 44 of 56 wherein the accused expresses his willingness to point out the place, where the article used in the offence in question had been hidden. Once, this exercise is complete, the police party alongwith the accused and two independent witnesses would proceed to a particular place, as may be led by the accused. This is how the law expect the IO to make the discovery as contemplated u/s.27 of the Indian Evidence Act. In this case, if this Court reads the entire testimony of the IO, then it is clear that same is deficient in all the aforesaid relevant aspects. The disclosure statement Ex.PW37/Y recorded by the IO on 24.02.2016 apparently does not record the exact words spoken by the accused. In this statement, although the IO has mentioned that accused Parvez Alam had stated that he could get the weapon of offence recovered and other articles but apparently, IO did not bother to record the exact place revealed by the accused where the articles were concealed.
93. Furthermore, the first disclosure statement of accused Parvez Alam was recorded by PW-16 ASI Ramesh wherein accused Parvez Alam had allegedly disclosed the place of disposal of the pistol. However, no recovery was effected in pursuant to that disclosure statement. Subsequently, when second disclosure statement Ex.PW37/Y was recorded by Insp. Narender PW-42 on 24.02.2016, the information given in the said disclosure statement had already been revealed to the police in the previous disclosure statement given to ASI Ramesh. The spirit of Section 27 of Indian Evidence Act is discovery of new fact related to the offence on the basis of BABRU BHAN information given by the accused. In case, the information Digitally signed by BABRU BHAN Date:
2025.02.17 15:33:40 +0530 State Vs. Yogesh @ Yogi & Ors. Page 45 of 56 which is given by the accused is already in the knowledge of the police, then any recovery made on basis of such information is not admissible u/s 27 and shall be excluded by Section 25 of the Indian Evidence Act. Thus, the disclosure statement Ex.PW37/Y recorded by Insp. Narender shall have no value.
94. Even further, the first disclosure statement was made by accused Parvez Alam on 23.02.2016 whereas the recovery of the pistol was effected on 25.02.2016. Being relevant it may be noted here that accused Parvez Alam was arrested by IO of this case on 24.02.2016 but he was not taken for recovery that day. IO has sought to explain that place of the recovery was situated in Bahadurgarh, Haryana and the border between Delhi and Haryana was sealed due to Jaat agitation. Next day, i.e. on 25.02.2016, they visited the place with assistance of local police. This Court is not inclined to accept this explanation for the reason that the efforts made by the IO of this case to gain entry in Haryana for the purpose of recovery could have been made on 24.02.2016 also. Moreover, no one can prevent an investigating officer from visiting any place for purpose of investigation.
95. For the aforesaid reasons, the recovery of the pistol itself comes under shadow of doubts in the first place.
96. Further, for sake of arguments, even if the recovery of the pistol at instance of accused Parvez Alam is accepted to be genuine, same shall still not be sufficient to convict the accused persons.
BABRU In this context, the observations made by Hon'ble Delhi High BHAN Court in case titled as Niwas @ Patel Vs. State, Criminal Digitally by BABRU BHAN signed Date:
2025.02.17 15:33:51 +0530 State Vs. Yogesh @ Yogi & Ors. Page 46 of 56 Appeal No.522/2005 (decided on 31.08.2009), can be referred to. Same are as under :
"49. The last evidence, which if proved, would be fairly incriminating is the report of the ballistic expert i.e. Ex.PW-1/A. The contents of the report and the testimony of PW-1, in brief, have been noted by us in paras 25 and 26 above show that the pistol got recovered pursuant to the disclosure statement of the appellant was of bore .303" / .315" i.e. was capable of firing a bullet of bore .303" and .315". It is apparent that the figure .303 is less than the figure .315. It is apparent that the bullet of bore .303 would be narrower than a bullet of bore .315. It is apparent that a barrel of bore .315 would be oversized for a bullet of bore .303.
50. What is the effect thereof?
51. In the book „Firearms in Criminal Investigation and Trials' by B.R.Sharma, at page 113 it has been opined that when a firearm is discharged, the cartridge case comes in contact with the firing pin, the breech face, the extractor, the ejector and the chamber. The projectiles come in contact with lead and barrel. All these parts of a firearm are made of steel. During their manufacture they undergo processes like cutting, hammering, reaming, grinding, filling and polishing. Various tools are used in their manufacture. The surface profiles of the tools used continue to change due to wear and tear as the tools act on steel. The finished surface profiles of firearms after undergoing such operations are, therefore, never alike even when the two surfaces are made with the same set of tools, one after the other. Consequently, all firearms, even the two barrels of the same firearm, show complete individualities. When a cartridge is fired and the bullet comes in contact with the relevant parts of the firearm, a BABRU BHAN negative profile of the surface gets imprinted on the projectile. Thus, a firearm can be identified in respect of Digitally by BABRU signed BHAN Date:
2025.02.17 15:33:58 +0530 State Vs. Yogesh @ Yogi & Ors. Page 47 of 56 the fired ammunition even when the firearm is recovered after a long time. Thus, the bore size of a firearm assumes importance. If a bullet does not house properly in the barrel of a firearm, the negative profile of the surface of the barrel is not clearly imprinted on the projectile.
52. A loose fitted bullet would obviously result in having imperfectly marked imprints.
53. It was urged by learned counsel for the State that the testimony of PW-1 and his report has not been assailed during cross-examination and since the report clearly and unequivocally opines that the bullet recovered from the body of the deceased was fired from the country made pistol recovered at the instance of the appellant, the issue has to be treated as closed against the appellant.
54. In a serious charge, as that of murder, where the life and liberty of an accused is at stake, technical and doctrinal approach to problems has to be eschewed and the matter has to be approached with prudence keeping in view the fact that a fact is treated to be proved, as defined in the Evidence Act, when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Expert evidence is admissible under Section 45 of the Evidence Act and is treated as relevant evidence. But, the same is nothing more than evidence and this means that a Court has to evaluate the same as evidence and not treat it as conclusive proof of the subject matter to which the opinion relates. For treating it as binding, the Court would be delegating its judicial function. In the decision reported as 1999 (7) BABRU SCC 280 State of H.P. vs. Jai Lal & Ors., in para 18 it was BHAN observed as under:- Digitally signed by BABRU BHAN Date:
2025.02.17 15:34:05 +0530 State Vs. Yogesh @ Yogi & Ors. Page 48 of 56 "18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."
55. A somewhat similar paradox was faced by the Supreme Court in the decision reported as AIR 1978 SC 1511 Modan Singh vs. State of Rajasthan. There was a hiatus in the bore of the firearm and the bullet which was referred for opinion. The ballistic report which initially wayward, finally concluded that the suspected bullet was fired from the firearm. The expert was not cross- examined by the defence on his opinion as to how could he conclusively so establish. The Supreme Court noted that no question was put to the ballistic expert as to how could be give a conclusive opinion because of the fact that the barrel of the pistol was loose and could house bullets of even a lesser bore. Notwithstanding that the expert testimony was not even challenged during cross- examination, the Supreme Court held that it cannot with certainty be said that the firearm in question was used to commit the crime. In the decision reported as AIR 1957 AP 758 In Re.Kodurthimma Reddi & Ors. (Prisoners), while discussing the evidentiary worth of a ballistic report and opinion and testimony of a ballistic expert it was BABRU highlighted that the test cartridge and the data generated BHAN therefrom on basis whereof the opinion was penned Digitally should be sent to the Court. signed by BABRU BHAN Date:
2025.02.17 15:34:14 +0530 State Vs. Yogesh @ Yogi & Ors. Page 49 of 56
56. The reason is obvious. It is the primary duty of the Court to see the photographs of the striations marks generated on the suspect and the sample/test bullet and then form an opinion.
57. As noted by us, in the instant case neither the photographs generated showing the striations marks nor the test bullet was sent to the investigating officer and hence were not produced in Court.
58. In this connection it assumes of some importance that as per the doctor who conducted post-mortem on the body of the deceased, the bullet injury on the deceased was a rifled injury meaning thereby the weapon of offence had a sufficiently long barrel with spiral groove, for only then could the bullet spin and as a result of the spinning bullet hitting the body, rifled injury resulting there from. Country made pistols or for that matter even pistols generally have short and smooth barrel and cannot result in a rifled injury. The sketch Ex.PW-41/D-1, is unfortunately not drawn to scale, but shows a barrel akin to a small snout i.e. a short barrel.
59. Thus, the appellant would be entitled to the benefit of a doubt even with respect to the report of the ballistic expert."
97. The facts of the present case on the aforesaid aspect are almost identical. V.R. Anand, Assistant Director Ballistics PW-26 has deposed in his court statement that the country made pistol sent for examination was capable of discharging bullet of .303 bore and .315 bore. The recovered bullets marked as Ex.EB-1 was corresponded to bullet of .303 cartridge. The bullet Mark EB-2 corresponded to bullet of .315 inch cartridge. The striation BABRU marks on both the bullets were compared with the test fired BHAN bullets. However, no definite opinion could be given as the Digitally signed by BABRU BHAN Date:
2025.02.17 15:34:22 +0530 State Vs. Yogesh @ Yogi & Ors. Page 50 of 56 individual characteristic of striation mark present on evidence bullet Ex.EB-1 were found insufficient. However, the individual characteristic of striation present on evidence bullet Mark Ex.EB-2 were found identical. During cross- examination, a question was asked to PW-26 that if the diameter of the country made pistol is of larger caliber than the bullet, whether the bullet can escape striation mark. In response to this question, PW-26 did not give any coherent answer and went to state that if a smaller bullet is fired from a pistol of larger caliber, it may or may not escape striation marks. This witness PW-26 was further subjected to another question that if two cartridges of different caliber are fired, whether the same striation marks would appear or not. Witness again tried to evade a clear answer and went to state that possibility was equal on either side. The striation mark may or may not be same.
98. Further, the photographs of the striation marks were to be produced before this Court. However, no such photograph generated showing the striation marks were produced in the Court.
99. Further, Dr. Manoj Dhingra PW-21 who conducted the postmortem on the body of the deceased has deposed in his court statement that cause of death was shock as a result of head and chest injury due to rifled fire arm. In the judgment referred above, Hon'ble Delhi High court dealt with the similar question and observed that the opinion of the doctor goes to suggest that BABRU weapon of offence had sufficiently long barrels with spiral BHAN grooves, for only then the bullet spins and as a result of Digitally signed by BABRU BHAN Date:
2025.02.17 15:34:28 +0530 State Vs. Yogesh @ Yogi & Ors. Page 51 of 56 spinning bullet hitting the body, a rifled injury may result. Country made pistols, similar to the one which was allegedly used in the present case have short and smooth barrel and cannot result into rifled injury. Here in this case, the sketch of the pistol would show that the country made pistol allegedly used for firing the bullet shot upon the deceased, was having a barrel size of 12.2 cm. In considered opinion of this court, this small barrel could not have resulted into a rifled injury as mentioned in the postmortem report Ex.PW21/A. Thus, the postmortem report further intensifies the doubt that the bullet which was retrieved from the body of the deceased was discharged from the country made pistol which was allegedly recovered from accused Parvez Alam. In nutshell, the postmortem report is contradictory to ballistic report.
100. So, as per the ballistic expert Dr. V.R. Anand PW-26, the country made pistol which was allegedly recovered from accused Praveen Alam was capable of firing a bullet of .303 caliber also. The bullet Ex.EB2 upon which the striation mark were found identical was of .315 caliber which is smaller in size. So, the barrel of the country made pistol was larger and loose to discharge the bullet of .315 caliber. Therefore, it could not have produced the proper striation mark. Further, as per the postmortem report given by Dr. Manoj Dhingra PW-21, the death was caused due to rifled fire arm injury. Whereas, the ballistic expert Dr. V.R. Anand PW-26 has nowhere mentioned in his ballistic report Ex.PW26/A that the countrymade pistol sent for analysis was a rifled fire arm. Moreover, the barrel of BABRU BHAN the arm needs to be sufficiently long with spiral grooves to Digitally signed by BABRU BHAN Date:
2025.02.17 15:34:36 State Vs. Yogesh @ Yogi & Ors. Page 52 of 56 +0530 discharge a spinning projectile. Here in this case, the size of the barrel was 12.2 cm, which was too small to cause a rifled fire arm injury.
101. Thus, as far as the ballistic report Ex.PW26/A is concerned, accused persons are entitled to the benefit of doubt in respect to the same. Same is also contradicted to the opinion of handwriting expert.
CALL DETAIL RECORD AND CELL IDs OF THE ACCUSED PERSONS AND DECEASED.
102. The last evidence which the prosecution has sought to prove against the accused persons is the call detail record and their cell location. Relevant it would be to note that none of the mobile number which the prosecution has claimed to have been used by accused persons was issued in their name. One of the mobile no. 9991338910 which was allegedly used by accused Sombir for calling deceased Anil was registered in the name of father of accused Sombir. However, that person was never examined in the court to prove the said fact. It is also the case of prosecution that accused Sombir had called deceased Anil on his mobile number in the night of the murder. The mobile which was alleged being used by deceased Anil is also not registered in his name. So, the call detail record relied upon by the prosecution shall also not prove anything against the accused persons.
BABRU BHAN CONCLUSION Digitally signed by BABRU
103. The conclusion of the above discussion is that admittedly, BHAN Date:
2025.02.17 15:34:43 +0530 State Vs. Yogesh @ Yogi & Ors. Page 53 of 56 neither there was any eye witness to the incident, nor it is the case of prosecution that the accused persons were seen by anyone in company of the accused persons on the date of murder. The only incriminating evidence brought against the accused persons is the recoveries allegedly effected from them. However, as per the prosecution, none of the recovery was witnessed by any public person despite their availability. Accused Sonu @ Chiku and Yogesh @ Yogi were arrested alongwith Scorpio car allegedly used in commission of crime but neither the secret informer had told the details of the car nor he could identify the accused persons by their faces. Under the circumstances, this Court failed to understand as to how the police party identified and arrested the accused persons. Therefore, the said arrest is definitely doubtful. Further is the case of prosecution that chopped head of the deceased was recovered in pursuant to disclosure statement made by accused Sonu @ Chiku and Yogesh @ Yogi. Two set of disclosure statements were recorded in this regard by two officials but none clarified which of the accused had first given the disclosure statement. Thus, much reliance cannot be placed upon that recovery also. The recovery of pistol at instance of accused Parvez Alam is doubtful. Even if the recovery is accepted as truthful, the ballistic report does not inspire confidence. The ballistic report is contradictory to the medical opinion which says that the death was result of rifled fire arm injury, whereas, the ballastic report nowhere mentions about any such rifled feature installed in the country made pistol.
BABRU Prosecution had also placed reliance upon the call detail record BHAN but none of the alleged number used by the accused persons Digitally signed by BABRU BHAN Date:
2025.02.17 15:34:55 State Vs. Yogesh @ Yogi & Ors. Page 54 of 56 +0530 was issued in their names. Nothing has been produced to connect these mobile numbers with the accused persons. Thus, the CDRs shall also not provide much benefit to the case of the prosecution.
104. Further, this Court is conscious of the legal position that it is not necessary to prove the express agreement between the accused persons for criminal conspiracy because conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of common intention of the conspirators. Therefore, the meeting of mind of the conspirators can be inferred from the circumstances proved by the prosecution. Here, in this case, the prosecution has not produced any evidence to show that before commission of crime, the accused persons namely Yogesh @ Yogi and Parvez Alam had met with the absconding accused persons and entered into an agreement to commit murder of deceased Anil. In nutshell, prosecution has not produced any evidence from which any such agreement or meeting of mind can be inferred.
105. As has been discussed above, it is well settled legal position that in a case based upon circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn, must be fully established and the circumstances must of conclusive in nature unerringly pointing towards guilt of the accused. Moreover, all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further, the circumstances proved BABRU BHAN must be consistent with only one hypothesis of guilt of accused Digitally signed by BABRU BHAN Date:
2025.02.17 15:35:04 +0530 State Vs. Yogesh @ Yogi & Ors. Page 55 of 56 and completely inconsistent with his innocence. Here, in this case, as per the above parameters, the prosecution has failed to prove its case that accused persons namely Yogesh @ Yogi and Parvez Alam abducted the deceased, committed his murder and disposed off the weapons and body to conceal the commission of crime. The circumstances against the accused persons namely Yogesh @ Yogi and Parvez Alam are not fully proved. The case of the prosecution is full of doubts. Accordingly, accused persons namely Yogesh @ Yogi and Parvez Alam are hereby acquitted from all the charges levelled against them by extending benefit of doubt.
106. The fate of absconding accused persons namely Sombir @ Bagdi and Sonu @ Chiku shall be decided as and when they are apprehended.
107. Both the accused persons namely Yogesh @ Yogi and Parvez Alam are directed to furnish bonds u/s.437-A Cr.P.C.
Digitally
108. File be consigned to Record Room. signed by BABRU BABRU BHAN Date:
BHAN 2025.02.17
Announced in open 15:35:12
+0530
Court on 12.02.2025
( BABRU BHAN)
ASJ-03, N/W, ROHINI COURTS
DELHI/12.02.2025
State Vs. Yogesh @ Yogi & Ors. Page 56 of 56