Delhi District Court
State vs Mahender Nigam And Others 1/177 on 15 January, 2015
1 FIR NO. 99/04 PS Darya Ganj U/s
302/120B IPC
IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL SESSIONS
JUDGE-05 (CENTRAL), TIS HAZARI COURTS, DELHI
Sessions Case No. 11/2014 (Original No70/2004)
FIR No. 99/04
PS Darya Ganj
Under Section 302/120B/34 IPC
State
Versus
Javed @ Akil
S/o Jamil Ahmed
R/o 1101, Gali Chabuk Sawar Lal Khan,
Hauz Qazi, Delhi. Accused No.1
Sayed Abrar Hussain,
S/o Sayed Nisar Hussain
R/o 2613, Kucha Challan,
PS Chandni Mahal, Delhi Accused No.2
Mohd. Nadir
S/o Mohd. Zakir ,
R/o 2404, Gali Rang Wali,
Phatak Hawas Khan, Tilak Bazar,
Delhi Accused No.3
State Versus Mahender Nigam and Others 1/177
2 FIR NO. 99/04 PS Darya Ganj U/s
302/120B IPC
Rakesh Kumar,
S/o Beni Prasad,
R/o 93, Gandhi Gali Tilak Bazar,
Delhi Accused No.4
Mahesh Kumar
S/o Beni Prasad,
R/o 93, Gandhi Gali Tilak Bazar,
Delhi Accused No.5
Ganesh Nigam (since deceased)
S/o Sh. Krishan Nigam,
R/o 8/11, Kamla Nagar,
Kanpur UP
And
B-503, Timarpur, New Delhi Accused No.6
Mahender Kumar Nigam,
S/o Ishwar Nath Nigam,
R/o E-228, Ist Floor,
East of Kailash, New Delhi Accused No.7
Subhash @ Nati S/o Inder Kannojia
R/o 1933 Argara, Fountain Chowk
Chandni Chowk , Delhi Accused No.8
State Versus Mahender Nigam and Others 2/177
3 FIR NO. 99/04 PS Darya Ganj U/s
302/120B IPC
AND
Sessions Case No. 11A/14
FIR No.99/04
PS: Darya Ganj
U/s 302/120B/34 IPC
State Vs. Subhash @ Nati
Date of institution : 17.06.2004
Date of conclusion of final : 13.12.2014
arguments/reservation for judgment :
Date of pronouncement of judgment : 13.01.2015
JUDGMENT
1. Accused Mahender Nigam, Mahesh, his brother Rakesh , Subhash @ Nati, Nadir, Abrar and Javed have faced trial under Section 302 IPC read with Section 120 B IPC, Section 25 read with 27 Arms Act for committing murder of Yogesh Sharma @ Babli outside House No. 2724 at the Junction of Gali Moti Mahal and Gali Nanhe Khan at about 11.15 AM on 25.02.2004 in pursuance and prosecution of criminal conspiracy hatched by the accused persons. As per prosecution, deceased Yogesh Sharma and the main accused Mahender Nigam were doing property construction business jointly. Accused Mahender Nigam was owing about six crores to the deceased. In order to avoid making payment of the said amount to the deceased, accused Mahender Nigam hatched criminal conspiracy along with the other coaccused persons to eliminate State Versus Mahender Nigam and Others 3/177 4 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Yogesh Sharma and in prosecution thereof, accused Nadir was engaged who in turn facilitated the engagement of the contract killers namely accused Javed @ Akil who was driven as pillion on stolen Yamaha motorcycle bearing fake number plate DL- ISM-3957, who (accused Javed) in turn shot dead Yogesh Sharma @ Babli by firing twice with countrymade pistols. All these accused namely Mahender Nigam, Mahesh , Rakesh, Nadir , Abrar and Javed were committed to stand trial in Sessions Case No.11/2014 whereas accused Subhash @ Nati who had evaded arrest was committed to stand trial in Sessions Case No.70/2006 by way of supplementary charge sheet.
FACTS OF THE CASE
2. The case of the prosecution elaborately stated is as follows. On 25/02/2004 at about 11:22 am, information was received that one person has been shot at gali Nanhe Khan, Daryaganj behind Moti Mahal, which was reduced into writing and was marked to SI Rajesh Malhotra vide DD No. 12A (Ex.PW3/B). SI Rajesh Malhotra along with HC Ajit Singh and Cons. Munendra Singh reached at the spot i.e. Gali Moti Mahal, Nanhe Khan Junction. On inquiry the deceased was identified as Yogesh Sharma alias Babli s/o Shri Hari Shankar Sharma, r/o 2680-81 Gali Kale Khan, Chandni Mahal, Delhi. The victim had two gunshot wounds; the first wound was two inches above the abdomen on the right side and the other was near the spine, one inch towards the right and nine inches below the shoulder. Inquiry was made from the bystanders but none could State Versus Mahender Nigam and Others 4/177 5 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC give any satisfactory answer. In the meantime, Inspector Dharamvir Joshi, SHO Daryaganj also joined the proceedings at the spot. The report of the incident was sent to the concerned magistrate vide special messenger. The crime team came to the spot and took photographs (Ex.PW11/A 30-58) of the dead body. SI Hira Lal from the crime team took sample of the earth control which was sealed in different pullandas with seal of DVJ and which were thereafter seized vide memo Ex.PW42/A. Rough site plan (Ex.70/A)was prepared at the spot and personal search (Ex.PW13/B) of the deceased was also conducted.
3. After preparing the postmortem documents, filing form 25.35(ii)(b) and after conducting the inquest proceedings, the dead body of the victim Yogesh Sharma @ Babli was sent for postmortem to Maulana Azad Medical College. The concerned doctor was requested to preserve the clothes of the deceased, blood samples, bullets embedded in the body and give opinion regarding nature and number of wounds, direction and distance from which the wound had been caused, type of weapon etc. Thereafter further inquiries were made at the spot. It was informed by one Qasim s/o Mohammad Sharif, r/o 2739 Gali Nanhe Khan, Kucha Chalan, Daryaganj, Delhi that he had seen one person who was wearing a helmet at Gali Moti Mahal, Nanhe Khan Junction shooting the deceased Yogesh Sharma @ Babli and after shooting running towards Gali Tehsildar.
State Versus Mahender Nigam and Others 5/177 6 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
4. On receiving this information, Inspector Dharamvir Joshi made inquiries from the friends, associates and business partners of the deceased Yogesh Sharma. It was found that the deceased was dealing in building and construction work and Umesh Sharma @ Banke, Virendra Yadav @ Viji were his business partners and they were running their office from 1194, Keshav Market, Maliwara, 3rd Floor, Chandni Chowk. It was also found that the deceased Yogesh Sharma @ Babli was residing at 2680-81 Gali Kale Khan, Chandni Mahal. It was also discovered that the deceased Yogesh Sharma was engaged in various construction activities with one Mahender Nigam also. During the course of investigation, Inspector Dharamvir Joshi got the dead body and the place of incident photographed on 25.2.2004. Post mortem report (Ex.PW 12/B) was also obtained wherein it was opined by the concerned autopsy doctor that the death of Yogesh Sharma had occurred due to haemorrhage and shock from the injuries to liver and lungs sustained by him. It was also opined that all the injuries were ante-mortem, recent and produced by the projectile of rifled firearm, ammunition, fired from a close range.
5. The sealed pulanda of clothes and shoes of the deceased Yogesh Sharma @ Babli duly sealed with the seal of MAMC Delhi for (Forensic Medicine) along with sample seal were seized vide seizure memo Ex. PW68/B, sealed pulanda of two bullets taken out from the dead body of the deceased duly sealed with the seal MAMC Delhi for Forensic Medicine along with sample seal were State Versus Mahender Nigam and Others 6/177 7 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC seized vide seizure memo Ex. PW68/D, The sealed envelope containing blood stained clothes duly sealed with the seal of MAMC Delhi for Forensic Medicine along with sample seal were seized vide seizure memo Ex. PW68/C from MAMC mortuary, the mobile phone make Samsung, cash of Rs.11,130/-, one key, one red thread tied in the neck of deceased, one small homeopathy medicine bottle, one driving license of deceased Yogesh Sharma , some documents(parchies) and one pocket telephone diary obtained from the search of the dead body were seized vide seizure memo Ex.PW13/B, and deposited in malkhana. On further investigation, it was realized that the associates of the deceased could be involved in the murder of the deceased and thus, the mobile phone numbers of the suspected associates were obtained and after following proper procedure, permission to intercept their calls and to record their conversation was obtained vide Ex. PW61/DA by Inspr. Rakesh Giri. Thereafter subsequent part of investigation was entrusted to Inspector Special Staff Rakesh Giri.
6. On 15/03/2004 the sealed pulandas of samples of blood stained earth, earth control, blood sample, clothes and the shoes of the deceased along with parcels of the bullets taken out of the body of the deceased were sent to FSL, Rohini, Delhi.
7. On receipt of secret information on 20/03/2004, the police apprehended Javed @ Akeel from Subhash Park, Jama Masjid, Delhi. He was interrogated by the police during which he disclosed about his past criminal record and his financial status and admitted State Versus Mahender Nigam and Others 7/177 8 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC to the murder of Yogesh Sharma @ Babli. Inspector Dharamvir Joshi along with his team arrested accused Javed and recovered one mobile phone bearing number 56087574 along with a slip on which the date of 03/2004 , Umesh @ Banke, 9811101020, 56035758, Lakshmi Nagar was written, which was seized by the police vide memo (Ex.PW68/H). Thereafter, accused Javed got recorded his disclosure statement (Ex.PW68/J) disclosing that fifteen days before the incident, his friend Nadir S/o Mohd. Zakir R/o 2404, Gali Rangwali, Phatak Hawas khan, Tilak Bazar informed that he has been entrusted the task of shooting one person namely Babli of Chandni Chowk by Mahesh and Rakesh. He further disclosed that for the said task, one lac would be given. He also disclosed that he i.e Javed @ Akil also involved his friend Sayed Abrar Hussain in this task. Nadir, Mahesh, Rakesh and Subhash @ Nati had shown Yogesh Sharma @ Babli to him and his friend Sayed Abrar. They both learnt that Yogesh Sharma used to reach his office at Chandni Chowk through gali Kale Khan at about 11/11.15 AM. Javed, Abrar, Nadir, Mahesh, Rakesh and Subhash @ Nati assembled at Fountain Chowk, Chandni Chowk and conspired to kill Babli. According to the plan, Mahesh gave him Rs. 10,000/- to purchase country made pistol along with cartridges. Accordingly, he bought two country made pistols and cartridges from Hapur. They made a plan as per which, Abrar would drive a motorcycle and he will be the pillion rider. The motorcycle will be arranged by Nadir. Accordingly, a motorcycle make Yamaha was arranged by Nadir on which fake number plate of DL1SM 3957 was State Versus Mahender Nigam and Others 8/177 9 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC affixed. He also remained in contact with Nadir on mobile no. 9899335040, with Mahesh at mobile no.9818662979 and with Abrar at mobile no.56141003. On 24.02.2004, he along with Rakesh, Mahesh, Nadir, Abrar and Subhash @ Nati assembled at the phatak of Tilak Bazar and planned to kill Babli on 25.02.2004. Mahesh had given two chips (SIM cards), to Nadir who put one of the SIM with the number 9899656654 in his mobile instrument make Ericssion and gave it to him (Javed @ Akil). On 25.02.2004, he i.e Javed made a call on the mobile phone of Abrar having no. 56141004 asking him to reach Unique Gym, Kuchadakhni on Yamaha motorcycle bearing No. DL1 SM-3957along with two helmets and two loaded country made pistols. Mahesh , Nadir and Abrar also reached at the above said place where accused Javed and Abrar demanded money from Mahesh. Mahesh immediately made a call at mobile No.9810902523 belonging to Subhash @Nati. Thereafter, Mahesh, Nadir and Abrar went to see Subhash @ Nati at Subzi Mandi to ensure that the money had been arranged. At about 11.10 AM Mahesh gave a ring on his mobile phone. He and Abrar after wearing helmets reached Kale Khan Gali via Gali Tahsildar where they saw deceased Babli coming from his house. Upon seeing Babli, Abrar turned back the motorcycle, got down and shot Babli from behind with his countrymade pistol in front of a STD shop at Gali Moti Mahal. Thereafter, he (Javed) kept the said country made pistol in the left side of his dub and took out the other countrymade pistol and fired a shot at the stomach of Babli. After shooting Babli, he ran towards State Versus Mahender Nigam and Others 9/177 10 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC the motorcycle of Abrar standing at the corner of Gali Tahsildar and drove from there towards Patoudi House and reached Lal Kuan. For the murder of Yogesh Sharma @ Babli, he was paid Rs.one lac and twenty thousand by Mahesh and Nadir. Abrar was given Rs. Ninety thousand for the said murder. Javed handed over the Ericssion Mobile phone to Nadir and motorcycle make Yamaha with fake number DL-1 SM-3957. He, Abrar and Nadir was asked by Mahesh and Subhash @Nati that in case of arrest by the police, they are to inform the police that the murder of Babli was planned by Umesh Sharma @ Banke. Mahesh had also given a slip in this regard to him. He further disclosed to the police that out of the amount of Rs one lac twenty thousand, he had spent Rs.2000/- and he can get recovered the remaining amount of Rs. One lac eighteen thousand which he has kept with his friend Amin Ahmad S/o Abdul Pukhatdeer R/o 1816, Gali Chabuk Sawar, Lal Kuan. Inspector Dharamvir Joshi along with accused Javed @ Akil reached at the house of Amin Ahmed at the above said address and on the pointing out of accused Javed, Amin Ahmed took out a blue polythene from which, Rs.one lac eighteen thousand were recovered. Inspector Joshi prepared a pulanda containing the above said recovered amount and sealed it with the seal of DVJ and took the same into possession vide pointing out cum seizure memo (Ex.2/A). Thereafter, Javed took the police team to his house and got recovered his blue shirt and the creme coloured shirt worn by Abrar on the day of incident, which were seized by Inspector Joshi after preparing a pulanda and sealing the same with the seal State Versus Mahender Nigam and Others 10/177 11 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC of DVJ vide memo (Ex.68/K). On 20.03.2004, at the pointing out of accused Javed @ Akil, Sayed Abrar Hussain was apprehended from outside his house at Kucha Chalan who admitted having been involved in the murder of Yogesh Sharma @ Babli. Sayed Abrar Hussain was formally arrested in this case vide memo (Ex. 9/B) and his personal search (Ex.9/C) was conducted in which a mobile phone make Motorola bearing No.56141003 was recovered. Upon interrogation, Sayed Abrar disclosed about the conspiracy to commit murder of Babli on 25.02.2004 and disclosed the same version as mentioned in disclosure statement of co-accused Javed @ Akil. Sayed Abrar further disclosed about having received Rs. 90,000/- for committing the said murder. He disclosed that out of Rs.90,000/-, he had spent Rs.2,000/- and the remaining amount of Rs.88,000/- were kept in an almirah in his house which he could get recovered. Disclosure statement of Sayed Abrar Hussain was proved as Ex.PW9/H and accused Abrar led the police team to first floor of his house at 2613, Kucha Chalan from where he took out a white polythene bag kept in the iron almirah. Upon checking the same, a sum of Rs.88,000/- was recovered which was seized vide seizure memo (Ex.PW9/D) after putting in a pulanda and sealing the same with the seal of DVJ. During investigation, Javed @ Akil disclosed that he could get recovered the two countrymade pistols used in the commission of offence. One of which was given to accused Nadir and the other was kept by him in an iron box in a jhuggi purchased by by him and accused Nadir at Kanchanpuri ear Rajghat Power House. Inspector Joshi recorded the disclosure State Versus Mahender Nigam and Others 11/177 12 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC statement of accused Javed @ Akil as Ex.PW68/J. Accused Javed @ Akil got recovered the countrymade pistol kept in an iron box from the jhuggi at Kanchanpuri Rajghat. Inspector Joshi prepared the sketch of the country made pistol (Ex.PW9/E) , prepared a pulanda containing country made pistol and seized the same after sealing the same with the seal of DVJ. During investigation, Javed also disclosed that on 25.02.2004, after he had fired the first shot at Yogesh Sharma @ Babli, he had kept the country made pistol in the left side of his dub due to which, he had sustained a burn injury near his left thigh which fact was established from his medical examination and examination of the country made pistol recovered at his instance. Thereafter, on 23.03.2004 on receiving of secret information about Nadir, Inspector Joshi along with staff and accused Javed @ Akil and Abrar reached at Vijay Pak, Gali No. 22 A where at the pointing out of accused Javed @ Akil , accused Nadir S/o Mohd. Zakir R/o 2404, Gali Rangwali, Phatak Hawas Khan, Tilak Baja, Delhi while driving motorcycle make Yamaha bearing No. DL-1SM-3957 was intercepted. Mohd. Nadir confessed to have been involved in the murder of Yogesh Sharma @ Babli with Mahesh, Rakesh, Abrar, Javed @ Akil and Subhash @ Nati.Mohd. Nadir was accordingly formally arrested by Inspector Joshi. His arrest memo (Ex.PW68/H)and personal search memo (Ex.PW68/N) were prepared and from the personal search of accused Nadir, one mobile make Motorola No.56087464 was recovered. Motorcycle was taken into possession vide a memo. Upon interrogation of the accused Nadir, he disclosed that two State Versus Mahender Nigam and Others 12/177 13 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC months prior to the incident, his friend Rakesh S/o Beni Prasad R/o 93, Gandhi Gali, Tilak Bazar, Delhi had told him about the murder of a person. After 10/12 days, Rakesh and his brother Mahesh offered him thre lacs for killing one Babli of Chandni Chowk as per direction of a big builder. Thereafter, Nadir narrated all the facts as disclosed by Javed and Abrar. He also disclosed that on 24.02.2004, Mahesh gave two SIM cards to him out of which, one SIM card was put in his mobile phone bearing No.9899656654 make Ericssion which he gave to Javed and kept the other SIM card bearing No.9899523816 with him for his mobile. Thereafter on 25.02.2004, Javed @ Akil, Abrar and Mahesh met him at Kucha Dakhni near Unique Gym at about 10.15 AM where Abrar and Javed insisted to see the arrangement of money. Mahesh made a call to Subhash @ Nati on his mobile no. 9810902523 and thereafter they went to see the arrangement of money . Thereafter, Abrar returned to Unique Gym where Javed was waiting. Mahesh went towards the house of Babli while Nadir remained with subhash @ Nati at Subzi Mandi. At about 11.15 AM, Mahesh called Subhash @ Nati on his mobile phone no.9810902523 to hand over the money as work has been accomplished. Subhash @ Nati handed over Rs. One lac to Nadir and thereafter, he along with Subhash @ Nati and Mahesh reached Sabri Masjid where he inserted the SIM No.9899523816 in his mobile and made a call to some person informing him that work has been done and he should send Rs.one lac. During that time, Javed called Nadir from the mobile No.56141003 belonging to Abrar and informed him that State Versus Mahender Nigam and Others 13/177 14 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC they had reached Lal Kuan. He and Mahesh then reached Lal Kuan and handed Rs.1 lac to Javed @ Akil and Rs.90,000/- to Abrar while he (Nadir) kept Rs.10,000/- with him. Thereafter Subhash @ Nati brought another Rs. One lac, out of which, he had given Rs.50,000/- to Javed and kept with him the remaining amount of Rs.50,000/- . Javed had returned the mobile phone make Ericssion to him along with motorcycle bearing No .DL-1SM-3857. He further disclosed that he had stolen the said motorcycle bearing original No.DL7SB 9500 from Chandni Mahal about a year ago. Mahesh had further handed over to him Rs. One lac out of which, he handed over Rs.60,000/- to Javed and kept the remaining amount of RS.40,000/- with him. Nadir also disclosed that he along with Javed had purchased a jhuggi in Kanchanpuri, Rajghat Power House for Rs.40,000/-. Nadir further disclosed that out of the two countrymade pistols which were used for this murder, one was given to him by Javed which he lateron handed over to Mahesh. He had further taken Rs.1,00,000/-from Mahesh. Therefore, in all he had taken Rs.1 lac ninety thousand for the murder of Babli. Out of the said amount, he had spent Rs. 70,000/- and had hidden the remaining amount of Rs.1,20,000/- and a mobile phone in his house. Separate disclosure statement of Nadir was recorded by Inspector Joshi. Upon the directions of Inspector Joshi, SI Sudhir Kumar interrogated the accused Nadir, who disclosed that out of Rs.1,90,000/- he had purchased two mobile phones and a yamaha motorcycle bearing No.DL-4SH-0847 and kept the remaining amount of Rs.1,20,000/-in his house. He State Versus Mahender Nigam and Others 14/177 15 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC had also kept the panasonic mobile phone which he had used in the commission of this crime and the Ericssion mobile phone which he had handed over to Javed in his house and he can get recovered the same. Thereafter,in pursuance of the disclosure made by the accused Nadir, he got recovered one white polythene which he had concealed behind a cooler from his house. The said polythene was found containing three mobile phone i.e. Panasonic GD -90, IMEI No.4491239865 which was used by him on the date of incident, Ericsson phone IMEI No.520424808171584 which was used by Javed and the other mobile make Nokia 1100 having IMEI No.352524001510067 purchased by him out of the aforesaid money. SI Sudhir Kumar seized these recovered mobiles vide seizure memo (Ex.PW14/A) after preparing the sealed pulanda. Accused Mohd. Nadir also got recovered a mobile phone chip (SIM card) from the space between the wooden frame of the door and the wall. The mobile phone chip was seized vide memo (Ex.PW14/B) after preparing a sealed pulanda. Nadir also produced the amount of Rs.one lac twenty thousand wrapped in a black polythene kept in the right side of the bed after removing the bricks. SI Sudhir Kumar converted the said recovered amount in a pulanda, seized vide memo (Ex.PW14/C)and sealed the same with the seal of SK. Upon the pointing out of Nadir, motorcycle No DL 4 SH-0847 was got recovered from the Delhi Diesel Petrol Pump, IBP Bhajanpura, Delhi which was purchased by him for a sum of Rs.15,000/- from Feroz R/o Zakir Nagar, Okhla and the same was seized vide seizure memo (Ex.PW14/D).
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8. Inspector Rakesh Giri prepared an observation memo after studying the call details record of the mobile phone make Ericsson bearing SIM No.9899656654 used by Javed and the mobile phone no.56141003 used by Abrar. As per the observation memo, on 25.02.2004, the day of incident, Mahesh had made seven calls from 9.53 AM to 10.13 AM from his mobile No.9899641516 on the mobile phone of Javed bearing No.9899656654. Three calls at 10.50 AM, 11.05.13 AM and 11.05.47 AM were made from the mobile phone of Abrar bearing No.56141003 to the mobile No. 9899335040 belonging to Nadir. Immediately after the incident i.e at 11.16.29 AM, Abrar had received two calls (at No.56141003) from the mobile No.9899523816 belongin to Nadir. Again there was a conversation between the numbers 9899523816 and 56141003 and at that time, as per Cell ID position, Nadir was present at Darya Ganj. At 11.50 AM when Nadir had called Abrar at his mobile phone, as per Cell ID, Nadir was present at Lal Kuan. Javed @ Akil had made two calls from his mobile no. 56141003 to Nadir at his mobile No.98995238 at 11.49 AM and 12.05 PM. After the commission of the murder, Javed had purchased motorola phone bearing No. 56087464 and from his mobile, he had made calls to and spoken to Mahesh on mobile Nos.9811511604 and 9818663731. The conversation between Mahesh, Nadir, Javed and Abrar on the day of incident i.e on 25.02.2004 reveal their presence at and near the place of occurrence on the relevant time. Thereafter, Inspector Rakesh Giri got checked the call detail records of the mobiles numbers of all the above said accused State Versus Mahender Nigam and Others 16/177 17 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC persons and found all of them to be connected with each other. From the call details of mobile no. 9811511604 belonging to Mahesh mobile number of 9871122785 with IMEI No. 352539009269070 was traced which was found to be of Mahender Nigam. From the thorough study of the calls details, it was also found that Mahender Nigam had used mobile no.9818663731 from IEMI Nos 350179875066940 and 352054003056050. It was also found that from 15.03.2004 to 18.03.2004, Mahesh had used mobile no.9818663731 and the other mobile no.9811511604 was also used by him in mobile instrument bearing IEMI No. 3520540030560519 from 17.03.2004 to 19.03.2004 which establishes the link between Mahesh and Mahender Nigam From the call details of mobile nos.9899523816 ,9810902523 and 9871122783 belonging to Nadir, Subhash @ Nati and Mahender Nigam respectively it was revealed that they were connected with each other. Mahender Nigam had used the mobile no. 9871122785 in IMEI No.35253900926-7070. He was also using the other mobile no.9871150441 in the mobile phone with IMEI No. 35253900926-7070 which was used from 20.03.2004 to 21.03.2004. Mahender Nigam used the mobile no.9871122785 from 17.03.2004 to 19.03.2004. Mahender Nigam had frequent conversation from his mobile No.9871150411 with Subhash @ Nati on his mobile No.9810902523. As per the Cell ID '243', mobile No. 9871150441 had shown the location of the house of Mahender Nigam at East Of Kailash. Call detail records of the mobile phones shows that Mahender Nigam had a talk from his mobile State Versus Mahender Nigam and Others 17/177 18 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC no.9899647103 with Nadir at his phone no.9899523816 on the day of incident at about 11.19.20 AM. On 16.02.2004, there was a conversation betwen Rakesh (mobile no.9811217262) and no. (9899647103). On 24.02.2004 there is a call at the office No. 23868733 of Mahender Nigam from mobile no. 9899647103. On 25.02.2004 there is a call on mobile no.9899647103 from no. 23865427. The mobile no.9899647103 was used in the mobile instrument with IMEI no.351525007634370 belonging to Mahender Nigam. The calls details of mobile phone of Mahender Nigam shows conversation with Rakesh at his mobile no.9811217262. The call details shows the involvement of Mahesh with Javed and Nadir on one side and with his brother Rakesh, subhash @ Nati and Mahender Nigam on the other side.
9. Thereafter, Inspector Rakesh Giri after obtaining appropriate permission had intercepted the calls of IEMI No352539009267070 belonging to Mahender Nigam and found that on 24.03.04 Mahender Nigam and Subhash @ Nati had talk with each other at 8.40 PM and on the same day at about 9.30 PM, Mahender Nigam and Mahesh had a conversation. On 25.03.2004 at about 9.17PM, there was another conversation between Mahender Nigam and Mahesh which was intercepted and recorded. From the recorded conversation, transcription was prepared and from the original cassette, duplicate cassette was prepared which was sealed with the seal of RGG. The cassettes were deposited in malkhana. The observation memo of the mobile phones nos.9818662979, State Versus Mahender Nigam and Others 18/177 19 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC 9811217262, 9899641516, 9811511604, 9818663731 and 9818915081 related with Mahesh was prepared and it was found that Mahesh had used mobiles no.9818662979, 9811217262 and 9899641516 before and on the day of incident. Mahesh had also spoken to Nadir at mobile no.9899335040 and 9899523816, to Javed at his mobile no.9899656654 (which was provided by Nadir) and to Abrar at his mobile no.56141003. On the date of the incident, i.e. 25.02.2004, Mahesh was using mobile no. 9818662979 on IEMI no.350835609511960 and he had used his mobile no.9818662979 before the incident at 10.50 AM and after the incident at 11.16 AM. After the incident, mobile no.9818662979 was used in IMEI no.350995605202460 at 11.16.33 AM, Nadir had called Mahesh from his mobile no.9899503816. As per the Cell ID, position of Mahesh was at Daryaganj. Before the incident, Mahesh had called from his mobile no.9899641516 to Javed at his mobile no.9899656654 seven times. This mobile was given to Javed @ Akil by Nadir. Mahesh had used two mobiles no.9818662979 and 9899641516 on two separate mobile instruments on the date of the incident. On the day of the incident, Mahesh had used mobile nos.9818662979 and 9899641516 on different instruments having separate IMEI numbers. On 25.02.2004,as per Cell ID, position of Mahesh was at Daryaganj and Kucha Chalan from 10.00 AM to 10.16 AM and at 12.09 PM, Mahesh was present at Lal Kuan along with Abrar, Javed and Nadir. After the incident from 17.03.2009 to 19.03.2009 Mahesh had called Nadir requently from his mobile no. 99811511604 with IMEI no.352540030560519 on his mobile no.
State Versus Mahender Nigam and Others 19/177 20 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC 56087464, to Javed at his mobile no.56087574 and to Mahender Nigam at his number 9871122785. After the incident, Mahesh had frequently called Nadir, Javed and Subhash @ Nati from his mobile No. 9818663731 from the instrument with IMEI No. 352054003056050 from 16.03.2002 to 18.03.2002. Mahesh also frequently called Mahender Nigam from his new number from instrument with IMEI no. 352054003056050 on 21.03.2002 at new mobile no.9871150441 of Mahender Nigam. Subhsh @ Nati also used his mobile no.9810902523 from the instrument with the same IMEI number upto 04.03.2004. From the observation memo of mobile nos. of Mahender Nigam, it was found that Mahender Nigam used mobile nos.9811126007,899647103,9871122785, 9871150441 and 35900174. Mobile no. 9811126007 was his permanent mobile number which he used frequently while making calls at his residence landline telephone number 35024433 and office telephone no. 23868733. On 24.02.2004 at 17.17 PM, Mahender Nigam had made a call to Yogesh Sharma @ Babli on his mobile no.9811131414 from his mobile no.981126007. It was also observed that deceased Yogesh Shama @ Babli had a conversation from the office landline no.23868733 of Mahender Nigam. The permanent IMEI no of the mobile of the Mahender Nigam is 351525007634370. On 24.02.2004, Mahender Nigam had called on the landline number of his office at 23868733 from his mobile no.9899647103 from the instrument with IMEI no. 351525007634370. On the date of incident, Mahender Nigam received call from landline no. 23865427 at 9.41 AM on his new State Versus Mahender Nigam and Others 20/177 21 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC mobile number 9899647103 with IMEI no.351525007634370. Immediately after the incident at about 11.19 AM, a call at mobile no.9899647103 with IEMI No.350127892881340 was recorded on which there was conversation with mobile phone no.9899523816 belonging to Nadir. A call was also made on the mobile of Rakesh having No.9911217262 on 16.02.2004 from mobile no. 9899647103 . The mobile No.35900174 was in the name of Radha Nigam, wife of Mahender Nigam and from this number, a call was made to deceased Yogesh Sharma @ Babli on his mobile no. 9811131414 on 23.02.2004. From this mobile number, calls were made from 16.02.2004 to 20.02.2004 to Subhash @ Nati on his number 9810902523. Mobile No. 9871122785 of Mahender Nigam was temporarily used from the instrument with IMEI no. 352539009267072. Mahender Nigam also had conversation with Mahesh on mobile no.9811511604. Mahender Nigam had a conversation from his new mobile no.9871150441 used in instrument with IMEI No.352539009267072 with Subhash @ Nati at his mobile No.9810902523 and with Mahesh on his mobile no. 9818915081.Mahender Nigam had frequent conversations with Mahesh and Subhah @ Nati from his mobile numbers9871122785 and 9871150441.
10. Insp.Rakesh Giri found that during the interception of mobile No. 9871150441 of Mahender Nigam used in instrument with IMEI no. 35253900926707 Mahender Nigam had received a call from Mahesh on 25.03.2004 at 9.18 PM from the land line number of State Versus Mahender Nigam and Others 21/177 22 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Dehradun i.e. 1352607730 during which Mahender Nigam asked Mahesh to reach at J.K.Temple, Kanpur on 28.03.2004 at 4.00PM to meet his man who would make arrangement for safe stay for Mahesh and Rakesh at Kanpur. After interception of this important message, Inspector Rakesh Giri reached Kanpur on 28.03.2004 where he prepared a raiding party with the help of local police of PS Nazirabad (Kanpur) and laid a trap at the Shoe Stall of JK Temple. At about 8.00 PM two persons came there. After some time, one more person came there. All three of them were overpowered by Inspector Rakesh Giri and his team who revealed their names as Mahesh Tomar and Rakesh Tomar , both sons of Beniprasad Tomar, R/o 93, Gandhi Gali, Tilak Bazar, Delhi and the name of the third person was revealed as Ganesh Nigam S/o Krishan Nigam R/o 8/11, Kamla Nagar,Kanpur presently residing at B-503, Timarpur,Delhi. During interrogation, Mahesh and Rakesh admitted having been involved in the commission of offence. Ganesh Nigam also admitted that he was sent by Mahender Nigam his brother-in-law (sister's husband) for making arrangement of the safe stay of Rakesh and Mahesh at Kanpur. Inspector Rakesh Giri formally arrested accused Mahesh, Rakesh and Ganesh Nigam and prepared their arrest memos. Their personal search was also conducted. Police team was led to Niranjan Guest House. From room No.119 of Niranjan Guest House & Hotel, Ashok Nagar, Kanpur. Police team took into possession one motorola mobile phone having IEMI No.352054003056059 and a sum of Rs. 63,000/-. Accused Mahesh and Rakesh further disclosed during State Versus Mahender Nigam and Others 22/177 23 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC interrogation that for the last many days, they were hiding at Hardwar, Dehradun and Sahastradhara. Police team also seized the hotel receipts and tickets of the places they had visited from their possession. Police team also seized cash receipt No. 701 and entry register of the Niranjan Guest House and recorded the statement of witnesses. Thereafter, police party produced the accused Mahesh and Rakesh before CMM, Kanpur on 29.03.2004 and took two days transit.
11. Thereafter, Inspector Rakesh Giri along with staff came to PS Darya Ganj. Police team interrogated all the three and came to know about the involvement of main conspirator Mahender Nigam. Thereafter, Inspector Rakesh Giri arrested accused Mahender Nigam on 30.03.2004 from his house No.E-228, First Floor, East of Kailash, Delhi. From his personal search, a mobile phone make Nokia with mobile no. 981126007 having IMEI no. 351525007634372 was recovered. Accused Mahender Nigam during his interrogation disclosed that he knew deceased Yogesh Sharma @ Babli since 1998 and they both constructed various properties and distributed the profits. In the year 2003, after completing the work Babli made rough calculations and and told him that lot of money was due to him from Mahender Nigam. Thereafter, Babli took Rs.one crore in cash from Mahender Nigam and got the ownership of properties of Bhojpura and Kumar Cinema and got the same transferred in the name of his friend Umesh Sharma @ Bankey. Babli also got transferred property in State Versus Mahender Nigam and Others 23/177 24 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC the name of Virender Yadav @ Viji. Thereafter also, Babli was demanding Rs.three crores from him and was threatening to kill him. Babli also demanded share in other properties also. One day when Mahender Nigam was consuming liquor with his associates Mahesh and Subhash @ Nati, he told them about the threats given by Babli. Mahesh and Subhash @ Nati told him that they can get Babli murdered. Mahender Nigam then told him that he will bear all the expenses and in case they are arrested, he will also bear the court expenses to defend them. One and half months before the of incident, Mahesh, Rakesh and Subhash @ Nati told Mahender Nigam that they had arranged one Nadir R/o Tilak Bazar for the murder of Babli and that Nadir had further arranged his friends Jaed @ Akil and Abrar for the said murder. Mahender Nigam gave them Rs.25,000/- for purchasing arms for the commission of the murder of Babli. Thereafter, Mahesh, Rakesh, Abrar and Nadir made plans to commit murder and regularly gave information to Mahender Nigam from time to time. On 24.02.2004, Mahesh, Rakesh and Subhash @ Nati informed Mahender Nigam that on the next day, they will commit the murder of Babli. On 25..02.2004 at about 11.20 AM, when Mahender Nigam was going to his office, Subhash @ Nati informed him that the work assigned to them has been accomplished and asked him to send Rs.one lac. Mahender Nigam had purchased many mobile chips and mobile phones for talking to Mahesh, Rakesh and Subhash @ Nati. Mahender Nigam further handed over Rs.one lac to Subhash @ Nati and thereafter, he again handed over Rs.one lac for giving to State Versus Mahender Nigam and Others 24/177 25 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Nadir. Later on, Mahesh told him that Nadir was demanding Rs. Two lacs more. Thereafter, he handed over another Rs.one lac to Mahesh to pass on to Nadir.
12. On 20.03.2004, Mahender Nigam came to know that accused Javed had been arrested by police , so he gave Rs.one lac to Rakesh and Mahesh with direction to leave Delhi. Mahender Nigam also sent his brother in law (sister's husband)Ganesh Nigam to Kanpur on 28.03.2004 for making arrangement for safe stay of Rakesh and Mahesh where they were apprehended by the police. The police produced accused Mahender Nigam, Rakesh, Mahesh and Ganesh before the concerned Magistrate and got their police remand for five days. On 31.03.2004, upon the directions of Insp. Rakesh Giri, SI Sudhir Kumar interrogated accused Mahesh who disclosed that he was working under Mahender Nigam and on his asking, he had conspired Subhash @ Nati, Rakesh, Nadir, Javed @ Akil and Abrar to murder Babli. Mahesh also disclosed that Javed @ Akil had handed over one country made pistol out of the two pistols used by him to Nadir who had given the same to him which was concealed by him inside the bed of his house and he can get the same recovered. Thereafter, accused Mahesh led the police team to his house at 93, Gandhi Gali, Tilak Bazar, Delhi and got recovered the countrymade pistol from the bed of his house. SI Sudhir Kumar prepared the sketch of the pistol ,converted the same into pulanda , sealed the same with State Versus Mahender Nigam and Others 25/177 26 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC the seal of SK and seized the same. Accused Mahender Nigam during interrogation disclosed that some of the mobile phones used by him before and after the incident for conversing with accused Mahesh, Rakesh and Subhash @ Nati and property documents were kept in the almirah of his house bearing no. E-228, First Floor, East of Kailash, Delhi and he can get the same recovered. Thereafter, accused Mahender Nigam got recovered four mobile phones i.e. Reliance no. 35900174, Samsung bearing IMEI No. 351623006475929, Nokia 7250 bearing IMEI No. 3513346808192134 and Nokia 3315 bearing IMEI No. 352539009267072 from his house. The mobile phone Nokia 3315 bearing IMEI No.352539009267072 was the same mobile phone conversation on which had been intercepted and s recorded on 24.03.2004 at 8.40 PM and 9.30 PM and on 25.03.2004 at 9.17 pm. SI Sudhir Kumar took the above said mobile phones into possession vide seizure memo (Ex.PW9/G). It was also confirmed that deceased Yogesh Sharma @ Babli had constructed many properties jointly with accused Mahender Nigam and photocopies of the documents of some of those properties were recovered from the house of accused Mahender Nigam. The above said documents were taken into possession by SI Sudhir Kumar vide seizure memo (Ex.PW9/H). Umesh sharma @ Bankey and Virender Yadav @ Viji were the partners of deceased Babli and Babli got some properties transferred in their names. During investigation,Umesh Sharma told the police that deceased Yogesh Sharma @ Babli had to take about Rs.six crores from Mahender Nigam and he had been State Versus Mahender Nigam and Others 26/177 27 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC continuously putting pressure on Mahender Nigam for the last six months. During investigation, it also came to the notice that accused Mahender Nigam was in negotiation with some property dealer with regard to the property bearing No.2079 to 2085, Katra Roshandola , Kinari Bazar, Delhi. With respect to the said property, deceased Yogesh Sharma had already given earnest money to the tenants of the said property due to which, there was further tension between deceased Yogesh Sharma and accused Mahender Nigam. To get rid of Yogesh Sharma @ Babli, accused Mahender Nigam had also filed an anonymous complaint against him. During investigation, Inspector Rakesh Giri obtained the specimen handwriting of accused Mahesh, got prepared a scaled site plan (Ex.PW1/A) and collected the residential proofs of the accused persons. The exhibits were also got sent to FSL, Rohini for expert opinion. During investigation, accused Javed @ Akil disclosed that the two countrymade pistols used in the commission of offence on 25.02.2004 were purchased for a consideration of Rs.4,000/- from Naeem and Fehmuddin of Village Badli, Hapur, Ghaziabad, UP. On inquiry, it came to know that Naeem and Fehmuddin were in JC since 10.03.2004 in FIR No.55/04 u/s 5/25 Arms Act of PS Babugah Hapur , Ghaziabad. Application was also made to the concerned Metropolitan Magistrate to obtain voice samples of the accused Mahender Nigam, Mahesh and Subhash @ Nati for comparison with their voices recorded in the cassettes on interception of their conversation made on 24.03.2004 & 25.03.2004. Accused Mahender Nigam , Mahesh as well as State Versus Mahender Nigam and Others 27/177 28 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Subhash @ Nati refused to give their voice samples. The bank account details of accused Mahender Nigam were obtained and it was found that Mahender Nigam had withdrawn a lot of money from his accounts in UCO Bank, Chawri Bazar. Result from Biology Department, FSL Rohini was also obtained as per which, the experts had opined that blood of group B was detected on Exhibits 1, 2, 3A, 3B, 4, 5A,5B, 5C, 5D and 5 E . Result from Ballistic Division, FSL Rohini was also obtained , according to which, it was opined that the bullets Ex.B1 and B 2 recovered from the body of the deceased were fired from country made pistol of .315 bore marked as F1 and F2 recovered at the instance of accused Javed and Mahesh respectively. Both weapons were found to be in working condition and were found to be fire arms. Accordingly, sanction u/s 39 of Arms Act from DCP/ Central was obtained.
CHARGE
13. Charges under Sections 120B/302 IPC against the accused Mahender Nigam, Javed @ Akil,Sayed Abrar Hussain, Mohd. Nadir, Rakesh Kumar, Mahesh Kumar and Subhash @ Nati, u/S 212 IPC against the accused Ganesh Nigam, u/S 25/27 Arms Act against the accused Javed @ Akil and Mahesh Kumar were framed to which they all pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
14. Prosecution in support of its case examined 72 witnesses namely Inspector Devinder Singh (who prepared the site plan Ex.PW1/A) State Versus Mahender Nigam and Others 28/177 29 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC as PW1, Ameen Ahmed (to whom accused Javed handed over card box containing currency notes) as PW2, ASI Shashi Gupta (who recorded case FIR No.99/04) as PW 3, HC Ali Sher (who recorded case FIR No.31/03) as PW4, SI Sita Ram (who recorded the information regarding recovery of motorcycle) as PW5, Jogender Nagpal (who sold the motorcycle bearing registration no.DL7SB 9500 to Moin Khan) as PW 6, HC Chattar Singh (who proved the FIR No.55/04 u/s 25 Arms Act against Naim and Faimudeen) as PW 7, Dr. Rohit (who proved MLC Ex.PW/8A) as PW8, Vishal (Employee of deceased Yogesh Sharma @Babli) as PW9, Dr. Mukta Rani (who conducted the post mortem on the body of the deceased), Jr. Specialist, Lal Bahadur Shastri Hospital as PW10, Const. Vinod Kumar (Photographer who took photographs of the deceased) as PW11, Rakesh Sharma (brother of deceased to whom body of the deceased was handed over)as PW 12, Mukesh Sharma (brother of the deceased) as PW 13, Umesh Sharma(Associate of deceased) as PW 14, Ayodhya Prasad (Owner of Niranjan Guest House where accused Mahesh Kumar and Rakesh Kumar stayed in Kanpur) as PW15, Salman Ul Haq as PW16, HC Mahesh Kumar (MHCM) as PW17, Krishan Kumar Ahuja (owner of STD and Photostat shop) as PW18, Balbir Singh (in whose presence deceased demanded 5-6 crores from accused Mahender Nigam) as PW19, Krishan Mohan as PW 20, Tejbir Singh Narula (landlord of the house where accused Mahender Nigam resided) as PW21, Sunil Kumar as PW 22, Manoj Jain (document writer) as PW23, Devender Jain (father of State Versus Mahender Nigam and Others 29/177 30 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC PW Manoj Jain) as PW 24, Pawan Kumar as PW 25, Virender Yadav (Associate of deceased Yogesh Sharma @ Babli) as PW26, Sheikh Mohd. Qasim (Witness to the incident) as PW 27, HC Riyaz Mohd(MHCM) as PW28, Const. Laxmi Narayan (Witness of investigation in FIR No. 31/03, PS Chandni Mahal) as PW29, Sh. A.K. Srivastava ,Sr. Scientific Officer (Biology, FSL) as PW30, Swatanter Kumar as PW 31, Lady Const. Ranjita (who recorded the information of gun shot) as PW32, Puneet Puri ,Sr. Scientific Assistant Ballistic as PW 32 (inadvertently again examined as PW32), Jamshed Alam (witness to sale of motorcycle bearing registration no DL-4SH-0847 to accused Nadir)as PW33, Sh.R.T. Sharma(official of Punjab & Sind Bank) as PW34, Neeraj Kumar (Manager of UCO Bank) as PW 35, Feroz Ahmed (owner of motorcycle no. DL4SH-0847) as PW 36, HC Ajeet Singh (witness of investigation) as PW 37, Narender Pal Singh, Chief Manager, Zonal Office, Punjab and Sind Bank as PW 38, Const.Ranbir Singh as PW39, Rakesh Dabas, Additional Nodal Officer, Reliance Communication as PW 40, SI Lekh Raj (witness to the search of the house of deceased) as PW41, Const. Mahinder (witness of investigation) as PW 42, HC Hira Lal as PW43 , SI Manoj Kumar as PW44, SI Anil Sharma as PW45, Neeraj, LDC from Office of Principal Secretary (Home) as PW 46, HC Nau Bahar (who received information regarding gunshot and conveyed the information to PS Darya Ganj) as PW47, R.K. Singh, Nodal Officer , Bharti Airtel as PW48, M.N.Vijayant, Nodal Officer, Tata Teleservices Ltd as PW 49, HC Pratap as PW50, Const.
State Versus Mahender Nigam and Others 30/177 31 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Rajender Singh (Who delivered the special message to the concerned MM) as PW 51, Insp.Jai Narain (witness of investigation) as PW 52, Const. Hira Singh as PW 53, SI Pankaj Kumar as PW 54, Insp. Raghubir Prasad (witness to the search of the deceased Yogesh @Babli) as PW 55, Const. Pawan Kumar (witness of investigation) as PW 56, HC Yatinder Kumar (witness of investigation) as PW 57, Const. Nagesh (witness of investigation) as PW 58, Const. Avdesh Kumar as PW 59, Const. Hari Chand as PW 60, Insp. Rakesh Giri as PW61, SI Veer Sen as PW 62, Const. Sudhir Kumar as PW 63, Sh. S.K.Gautam, ACMM as PW 64, Anurag Sharma, Sr. Scientific Officer as PW 65, Sh.A.K.Kuhar, ACMM as PW 66, Murad Ahmed as PW67, SI Rajesh Malhotra as PW 68, SI Sudhir Kumar as PW 69, Inspector Dharamvir Joshi as PW 70, Sh. Anuj Bhatia as PW 71 and Sh.Tarun Khurana , Nodal Officer, Bharti Airtel Ltd as PW72.
15. PW 27 Sheikh Mohd Quasim who is the resident of the gali where the incident took place is a material witness who deposed that on 25.2.2004 at about 11.00am when he was going for his private job from his house, he halted at the electric shop in Gali Nanhe Khan. While he was busy in conversing with the owner of the electric shop, he heard a sound of a gun shot being fired. On this, he alongwith the owner of the shop and other public persons came outside the gali and saw one person lying on the road and one person firing second shot on the said person who was lying on the road. PW27 further deposed that the person who was firing was State Versus Mahender Nigam and Others 31/177 32 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC wearing helmet at that time and so he could not see his face but the shooter was tall and of strong built wearing violet colour shirt and black colour pant. PW27 further deposed that the said assailant succeeded to flee from the spot. When PW27 reached near the person who was lying on the ground, he identified him as Yogesh Sharma @ Babli Bhai. PW27 immediately rushed to STD Booth situated just behind the place of incident to make a call to the police and directed the STD owner to inform the police and thereafter went to inform his employer Aziz Bhai who was the owner of the STD Kiosk regarding the incident. PW27 further deposed that after reaching his STD shop, he requested his co- employee also to call the police at no.100 and he also informed his employer. On being informed, the employer of PW27 namely Aziz Bhai reached STD shop within 10 minutes, whereafter he went to the place of incident. Aziz Bhai directed PW27 to inform at the office of Yogesh Sharma @ Babli Bhai regarding the incident. PW27 then telephoned the office of Babli Bhai where Vishnu attended the call.
16. Lady Constable Ranjita who was posted in PCR HQ on 25.2.2004 as a channel operator from 8.00am to 2.00pm was examined as PW32. She deposed that on that day she received a message that one person had been shot dead in gali Naney Khan behind Moti Mehal Restaurant , Darya Ganj, Delhi and this information was given by one Ali. On receipt of this information, PW32 filled up PCR form , the copy of which was proved by her as State Versus Mahender Nigam and Others 32/177 33 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Ex.PW32/A. She further testified that she handed Ex.PW32/A to the runner.
17. PW47 HC Nau Bahar deposed that on 25.2.2004 he was posted at the Central District Control Room and on that day at about 11.19am an information was received that Gunshot injuries has been caused to a person behind Moti Mahal in Gali Nanhey Khan, Darya Ganj. This information was conveyed to PS Darya Ganj through intercom where DD No.12A was recorded and as per the record the said DD was assigned to SI Rajesh Malhotra. PW 47 has also proved the Wireless Block Diary as Ex.PW47/A.
18. PW68 SI Rajesh Malhotra stated that on 25.2.2004 he was posted at PS Darya Ganj and on that day after receiving DD No.12A, he alongwith HC Ajeet Singh and Ct. Maninder went to the spot i.e. outside house no.2724, Gali Moti Mahal, Nanhey Khan T Point where body of a male aged about 40-45 years was lying. Meanwhile SHO Darya Ganj, SI Sudhir , HC Lekh Raj, HC Virender and Ct. Sudhir also reached the spot besides Crime Team under the supervision of SI Hira Lal and photographer Ct. Vinod Kumar. The dead body was inspected and efforts were made for identification of the body. PW68 further deposed that one person namely Aziz, owner of house no.2680-81 arrived at the spot and he identified the dead body to be of Yogesh Sharma who was also his tenant. Efforts were then made to trace eye witnesses if any but in vain. PW68 prepared ruqqa Ex.PW68/A after making endorsement on DD no.12A Ex.PW3/A and sent HC Ajeet Singh to the PS Darya State Versus Mahender Nigam and Others 33/177 34 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Ganj for getting the case FIR registered. Meanwhile Mukesh and Rakesh, brothers of deceased Yogesh Sharma @ Babli also reached the spot and identified the body of Babli @ Yogesh Sharma. Photographs were taken and blood samples were lifted by the crime team. SI Hira Lal also collected earth control and all the exhibits were sealed with the seal of DVJ and were seized vide Ex. PW42/A and Ex.PW42/B. Report was prepared by Crime Team Incharge and statement of crime team officials were recorded.
19. PW3 ASI Shashi Gupta deposed that she was working as Duty Officer on 25.2.2004 at PS Daryaganj from 8.00am to 3.00pm. She testified that on that day at about 11.22am she received a call from control room that an information has been received from Lady Ct. Ranjeeta that one person was shot dead in gali Nanhe Khan behind Moti Mahal, Daryaganj. This information was recorded by her as DD No.12A (Ex.PW3/B) which was handed over to SI Rajesh Malhotra who alongwith HC Ajeet Singh and Ct. Muninder reached the spot. She further stated that on the same day at about 12.45 pm, HC Ajeet brought the ruqqa (Ex.PW 68/A) sent by SI Rajesh Malhotra and on the basis of the same, she recorded FIR No.99/04 U/s 302 IPC (Ex.PW3/A). She then gave the copy of FIR and ruqqa to HC Ajeet to deliver the same to IO.
20. As per the testimony of PW 68 SI Rajesh Malhotra, HC Ajeet came back to the spot and handed over copy of FIR and ruqqa to Inspector Dharam Vir Joshi, SHO PS Darya Ganj who prepared the site plan after inspecting the site. The personal search of deceased State Versus Mahender Nigam and Others 34/177 35 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC was conducted and one mobile phone make N-620 Samsung having a SIM card, Rs.11,130/- and one key on which no.11 was engraved was found to be in his possession. The deceased was also found wearing a red colour thread around his neck. From the pocket of the deceased, some visiting cards, some documents and one bottle of Homeopathic medicine were also recovered which were seized vide memo Ex.PW13/B.
21. After conducting inquest proceedings u/s 174 Cr.P.C, the dead body was then removed to Maulana Azad Medical College Mortuary. PW68 accompanied the body to the mortuary and after some time, Inspector Joshi and SI Sudhir also reached there. IO Inspector Joshi moved application for postmortem and postmortem was conducted on the same day. After postmortem, the body was handed over to the relatives of the deceased. The Autopsy Doctor handed over a parcel bearing seal of MAMC alongwith sample seal containing the clothes of the deceased which was seized vide memo Ex.PW68/B. The parcel containing blood sample was seized vide memo Ex.PW68/C. After postmortem, Autopsy Doctor also handed over one sealed parcel containing bullets retrieved from the dead body alongwith sample seal of MAMC which were seized vide memo Ex.PW68/D. Statements of Mukesh and Rakesh were recorded and thereafter PW68 alongwith IO and SI Sudhir came back to the spot. IO made enquiry from several persons but none came forward as eye witness.
State Versus Mahender Nigam and Others 35/177 36 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
22. PW70 Inspector Dharamvir Joshi, Main IO of this case deposed that on 25.2.2004 he was posted as SHO, PS Darya Ganj. On that day he was on patrolling duty alongwith his staff. At about 11.20/11.25am, he received a message on his wireless set that a person had been shot behind Moti Mehal, Gali Nanhey Khan, Darya Ganj. On receipt of this information, he alongwith his staff rushed to the spot where he met SI Rajesh Malhotra, HC Ajit Singh and Ct. Maninder who were already present as a DD 12A dated 25.2.2004 PS Darya Ganj had been handed over to SI Rajesh Kumar regarding same incident. PW70 Inspector Dharamvir Joshi saw a male person lying dead on the street. The crowd which had got collected there was dispersed by him. Shortly, other staff from police station and the crime team Incharge Hira Lal, Vinod (Photographer) also reached there. The dead body was identified to be of of Yogesh Sharma S/o Hari Shankar Sharma R/o 2680-81, Gali Kale Khan by one Mohd. Aziz. The casual inspection of the dead body was conducted from which, it was revealed that deceased had two bullet injuries - one on the front side in the abdomen just above the navel about 2" on the right side and the other injury on the back side about 9" below the right shoulder and one inch towards the right side of the back bone. The deceased appeared to be of 45 yrs and had sallow complexion and was thin built. PW 70 further deposed that while Incharge Crime Team and photographer were conducting their proceedings, SI Rajesh Malhotra made an endorsement on the DD No.12 A incorporating the identity and injuries on the person of deceased which appeared State Versus Mahender Nigam and Others 36/177 37 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC to be gunshot injuries. The DD No.12A (Ex.PW3/B) and ruqqa (Ex.PW68/A) were sent to Police Station through HC Ajit Singh. The incharge Crime Team conducted proceedings at the spot and prepared report Ex.PW43/A. Crime team also lifted blood stained earth and earth control which were sealed in a plastic jar with the seal of DVJ and were seized vide memo Ex.PW42/A and PW42/B. The photographer took the photographs Ex.PW11/A30 to A58 of the scene of incident at the instance of PW70. PW70 thereafter, recorded the statements of crime team officials. In the meantime, HC Ajit Singh came at the spot and handed him over the copy of FIR and the ruqqa. PW 70 further deposed that he conducted the inquest proceedings (Ex. PW 12/B) on the dead body in the presence of Mukesh Sharma and Rakesh Sharma, both brothers of deceased who had come to the spot at about 12.15 pm. Rough site plan Ex.PW70/A was prepared and the personal search of deceased was conducted and recovered articles were seized vide memo Ex.PW13/B. He further deposed that on personal search of the deceased, One mobile phone with IM आ I No. 3507218944278219 make Samsung Mode N 620 with a SIM having mobile No..9811131414 was also recovered from deceased besides other articles. Body was sent to mortuary, Maulana Azad Medical College Hospital through SI Rajesh Kumar. PW70 reached the hospital. PW70 then moved the application Ex.PW70/B for the postmortem of the dead body and the brief facts Ex.PW70/C, Identification memos (Ex.PW13/A and Ex.PW12/A) State Versus Mahender Nigam and Others 37/177 38 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC and total nine papers were submitted which were marked by the Autopsy Doctor as 1 to 9 after putting his initial.
23. PW70 also deposed that postmortem was conducted on the same day and the post mortem report (Ex.PW10/A) was prepared. After the postmortem , dead body was handed over to the legal heirs of the deceased. PW70 prepared the handing over memo (Ex.PW70/A). He further testified that at the time of sending body for postmortem, the deceased was wearing white shirt, white sleeveless vest, green T-shirt, white underwear, black pant, black shoes with black socks.
24. PW70 further narrated that they went for search of accused and for further investigation as well as for collecting more evidence about the accused persons. They also made local enquiries and interrogation of the acquaintances of the deceased was also made. On being questioned about the residence of the deceased, PW70 replied that during investigation, it was revealed that deceased Yogesh @ Babli was living in Gali Kale Khan as a tenant in the House of one Mr. Aziz and was working in partnership with one Mahender Nigam and others . He further testified that they came to police station and deposited all pullandas in the malkhana. Different teams were constituted for the purposes of investigation and to trace the accused persons. On 28.2.2004 photographer handed over the photographs Ex.PW11/A30 to A58 to PW70 to him.
State Versus Mahender Nigam and Others 38/177 39 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
25. PW12 Rakesh Sharma deposed that on 25.2.2004 at about 12 noon or 12.15pm he received a telephonic information from one Mr. Gauri of Chandni Chowk, who conveyed to him that his brother had been shot dead. PW12 immediately reached the spot and found many public persons gathered there. When he entered the crowd, he saw the dead body of his brother Yogesh Sharma lying. His inquest statement (Ex.PW12/A) was recorded and he also signed form No.25.35 (Ex.PW12/B) at point A. Thereafter dead body of his brother was removed to the mortuary of Maulana Azad Medical College Hospital. and after post mortem at about 6.30pm, the body of the deceased was handed over to him and his brother Mukesh for performing last rites.
26. PW13 Mukesh Sharma testified that on 25.2.2004 at about 12 noon or 12.15pm, he received a telephonic information that his brother Yogesh Sharma @ Babli had been murdered by some one at Darya Ganj near Moti Mahal Restaurant. On hearing this , PW13 immediately reached the spot where he found many police officials. PW 13 disclosed to them that he was the brother of the deceased and identified the dead body of his brother Yogesh Sharma. His statement (Ex.PW13/A) was recorded regarding identification of the dead body. From the dead body, police recovered one mobile, some cash, one key and one red colour string which was tied around the neck of his brother, one telephone diary which were seized by the police vide Ex.PW13/B. Thereafter dead body of his brother was sent to mortuary of State Versus Mahender Nigam and Others 39/177 40 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC MAMC. They obtained the dead body on the same day at about 6.30pm after post mortem for last rites.
27. PW11 Ct. Vinod Kumar is one of the members of Mobile Crime Team and photographer who stated that on 25.2.2004 a call was received and on receipt of the same, he alongwith Incharge Crime Team namely HC Heera Lal reached gali Moti Mahal, Nanhe Khan, Kucha Challan Junction, opp. shop no. 2724,Daryaganj, Delhi where they found one dead body of a male lying . On the direction of the IO, PW 11 took 29 photographs (Ex.PW11/A30 to A58) the negatives of which were proved as (Ex.PW11/A1 to A29).
28. PW43 HC Hira Lal deposed that on 25.2.2004 he was posted in the mobile crime team central district. On that day information was received from PS Darya Ganj to reach behind Moti Mahal, Gali Nanhey Khan opposite shop no.2724. PW43 further deposed that when he reached at the spot , he found one body of a male whose name was revealed as Yogesh Sharma lying opposite shop no. 2724. SI Rajesh Malhotra and Inspector Dharamvir Joshi with staff were already present there. He inspected the spot and the place was got photographed through constable Vinod Kumar and prepared report Ex.PW43/A.
29. PW10 Dr. Mukta Rani who was posted as Sr. Resident at Department of Forensic Medicine, Maulana Azad Medical College on 25.02.2004 deposed that she alongwith Dr. Anil Mittal State Versus Mahender Nigam and Others 40/177 41 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC conducted the post mortem on the dead body of deceased Yogesh Sharma at 4.00pm which was identified by Rakesh Sharma and Mukesh Sharma (brothers of deceased). It was brought by Inspector Dharambir Joshi and SI Rajesh Malhotra of PS Darya Ganj with alleged history of deceased dying at the spot due to fire arm injury on 25.02.2004 at 1.15 AM at Moti Mahal, Gali Nanhe Khan. PW 10 also deposed she had prepared post mortem report Ex. PW 10/A. On external examination of the deceased, it was found that the dead body belonged to a middle aged male of average built and at the time of his death, he was wearing clothes. Both eyes were partially open, cornea was hazy, mouth was partially open, Hypostasis was present at the back and rigor mortis was present on face and neck muscle. There were signs of decomposition. Time since death was about 5 hrs. She also testified that following external injuries were found on the body of deceased.
i.Fire arm entry wound of size 1.5x1.0cm was horizontally placed above upper inner front of right side of abdomen and 18cm below the right nipple and 115 cm above the right heel. Colour of Abrassion was present all around the wound on right end, which was 1.3cm broad. At the upper end it was .2cm, on the left and it was .2cm and on the lower end it was 0.6cm broad. There was no signing , blackening or tattooing present.
ii.Fire arm entry wound of size 1x.8cm oblique was found placed over the inner lower back of the right side of chest, placed 2 cm to the right of mime line and 17cm below the back of right shoulder. Abrasion colour was present all around the wound. At the upper right end it was 1.7cm broad, at the lower end, left and it was .3 cm broad, at the lower right and it was .3 cm broad and at the lower end it was State Versus Mahender Nigam and Others 41/177 42 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC .8 cm broad. No signing or blackening or tattooing was found to be present.
30. PW 10 , further stated that on internal examination, it was found that there was about 2000 cc of fluid and clotted blood present in the peritoneal cavity. Liver was 1250 gms in weight. There was laceration of size 8x7x5 cm involving right lobe of liver via injury no.
1. The bullet track was through abdominal cavity by piercing the skin and fascia and it was found lodged in the substance of right lobe of liver at the depth of 12 cms from the skin. Parenchyme was pale.
In the chest cavity bullet track was through 7 intercostar space near the vertbral column on the right side track of chest via injury no.2 where in ovel lacerated wound of size 1.5x1x1 was present, deflected by the bodies of six and seventh throcacic vertebra which had traveled upwards and backwards and pierced the upper lobe of left lung where a contused lacerated wound of size 1.5x1.5cm and through and through the upper lobe of left lung was present. The bullet had also pierced the second intercostal space on left side back of chest and got lodged in the subcutaneous tissues at the root of neck . 6 cms above and inner to the outer end of left lung.
OPINION
31. As per the opinion (Ex. PW 10/A) of PW 10, the cause of death was due to hemorrhage and shock as a result of injuries to liver and lung via injury no.1 and 2 respectively. All the injuries were antemortem, recent and produced by projectile of a rifled fire arm State Versus Mahender Nigam and Others 42/177 43 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC ammunition fired from a close range. She also stated that as per her , Injury nos. 1 & 2 were sufficient to cause death in ordinary course of nature individually and collectively. The cut marks on the clothes also corresponded to the injuries on the body.
32. The Autopsy Doctor further testified that she had given the description of the two cylinderical bullets found embedded in the body of the deceased during the post mortem at point A in her post mortem report (Ex.PW10/A). PW10 had also examined the clothes of the deceased and given opinion . She further stated that she had handed over the PM Report in original and 9 inquest papers alongwith 2 sealed parcels containing the clothes of the deceased and the parcel containing bullets, blood on gauze piece to the police along with sample seal.
33. In cross examination, PW10 categorically admitted that when bullet injury is received, the blood which will come out of the wound would overshadow the deposit of gundpowder as in this case. PW10 also on being given a suggestion admitted that in the present case both the bullets were fired at the deceased from close range i.e from a distance less than 10 feet.
34. PW 70 Inspector Dharamvir Joshi had also deposed that on 4.3.2004 he had gone to the hospital and collected the postmortem report. The Doctor had handed him over three sealed parcels sealed with the seal of MAMC forensic medicine alongwith sample seal. These parcels were seized vide memo Ex.PW68/B to D. State Versus Mahender Nigam and Others 43/177 44 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC These parcels were containing clothes of deceased, blood sample and bullets and same were deposited in malkhana. On 15.3.2004 the exhibits were sent to FSL Rohini through SI Lekh Raj and Ct. Hari Charan whose statements were recorded by him.
35. PW 17 HC Mahesh Kumar deposed that on 25.02.2004, he was posted as MHCM at PS Daryaganj. He deposed that on the said day, Inspector Dharamvir Joshi (PW70), SHO PS Daryaganj deposited in the malkhana one mobile phone make Samsung , cash of Rs.11,130/-, one key 11 engraved on it, one red colour thread having triangular stone on it, a glass bottle of homeopathic medicine, driving license of deceased, some papers/ small purchase slips, one telephone pocket diary, two sealed parcel with the seal of DVJ containing earth control of blood and earth control. He made entry in register no.19 at serial no.1930 vide Ex.PW17/A. PW17 further deposed that on 4.3.2004 three sealed parcels were deposited by SHO Inspector Dharambeer Joshi in the malkhana and entry was made by him in this regard at sl. no. 1950 Ex.PW17/B. He further stated that on 21.3.2004, Inspector Dharam Vir Joshi deposited one sealed parcel containing currency notes of Rs.1,18,000/- sealed with the seal of DVJ, one more sealed pullanda sealed with the seal of DVJ containing two shirts and another pullanda containing currency notes of Rs.88,000/- with the seal of DVJ which he entered at Sl. no.1984 vide entry Ex.PW17/C. On 15.03.2004 he sent five sealed parcels to FSL, State Versus Mahender Nigam and Others 44/177 45 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Rohini through Ct. Haricharan vide RC No.109/21 Ex.PW17/M and the result of the same was received on 12.5.2004.
36. PW 17 further deposed that on 22.3.2004 Inspector Dharambir deposited one sealed parcel with the seal of DVJ containing country made pistol in malkhana vide entry at sl. no. 1927 of register No.19 Ex.PW17/D. On 24.3.2004 the said sealed pistol parcel was sent on the direction of Inspector Dharambir Joshi through SI Sudhir Kumar to MAMC vide entry 1927 and the said katta was again deposited in malkhana with the seal of MAMC on same day.PW17 further deposed that on 25.3.2004 three mobiles with two chips, cash of Rs.1,20,000/- and one more motorcycle bearing registration no. DL-4SH-0847 (Yamaha) were also deposited. On the same, day Inspector Rakesh Giri deposited two audio cassettes sealed in pullanda with the seal of RGG vide entry Ex.PW17/E-1 made at sl. no. 1979.On 29.3.2004 Inspector Rakesh Giri deposited articles of personal search of Ganesh Nigam, Rakesh Kumar and Mahesh Tomar, one grey colour leather bag containing sealed parcel of Rs. 63,000/- along with one guest house register in the malkhana vide entry Ex.PW17/F1 at sl. no.1993 in register No.19.On 30.3.2004 Inspector Dharambir Joshi deposited a mobile phone make Nokia with Romer Golden Colour wrist watch , cash of Rs.17,600/- with telephone diary and some visiting cards vide entry Ex.PW17/G at Sl. no.1995.On 31.3.2004 SI Sudhir Kumar deposited one pullanda sealed with the seal of SK containing country made pistol / katta vide entry Ex.PW17/H at Sl. no.1996.
State Versus Mahender Nigam and Others 45/177 46 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
37. MHC(M) further deposed that on 01.04.2004 SI Sudhir Kumar again deposited four mobile phones ( two Nokia, one Reliance and one folding Samsung) vide entry Ex.PW17/J at Sl. no.2000.
38. PW 17 the thenMHC(M) Sh. Mahesh Kumar then testified that on 15.4.2004 two sealed parcels containing country made pistols/kattas were sent to FSL, Rohini through SI Sudhir Kumar vide RC No. 3/21 Ex.PW17/N and on 8.6.04 the result was deposited by Ct. Vinod Kumar. The said entry is made in the entry no.1097 at point A. On 23.03.2004 Inspector D.V.Joshi had deposited the articles of personal search of accused Nadir and some cash of Rs.45/-, one motorcycle No. DL-1SM-3957 Yamaha RX-100 (black colour) was also deposited in the malkhana vide entry Ex.PW17/E made at Sl. No.1988 in register no.19.On 25.04.2004 SI Sudhir Kumar again deposited one STD Register from Ahuja STD containing page no.1 to 206 vide entry Ex.PW17/K at Sl. no.2038.On 28.5.04 the recovered motorcycle number DL-1SM-3957 was transferred to PS Chandani Mahal from Daryaganj vide RC No.24/21 Ex.PW17/P. On 10.08.2004 Addl. SHO InspectorRaghuvir Prasad deposited one mobile phone of Panasonic make vide entry Ex.PW17/L at Sl. no.2277.
39. PW41 SI Lekh Raj in his testimony deposed that on 15.3.2004, on the instruction of the SHO, Constable Hari Charan had collected five parcels, two of which were having seal of DVJ and remaining three were having seal of MAMC forensic medicine and one sample seal. He had accompanied Ct. Hari Charan to FSL Rohini and Ct.
State Versus Mahender Nigam and Others 46/177 47 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Hari Charan deposited case property there. After that, copy of RC was deposited back with MCHM as token of receipt. PW41 further testified that till the parcels remained with them, the seals remained intact.
40. PW60 Ct. Hari Chand deposed that on 15.3.2004 he was posted at PS Darya Ganj and SHO instructed him to collect the exhibits of this case from MHCM for depositing them at FSL, Rohini. SHO also handed him over priority letter and forwarding letter to him. Thereafter, he along with SI Lekh Raj collected five sealed parcels from MHCM (M), two of them were having seal of DVJ and three were having seal of MAMC College vide RC No.109/2 for depositing at FSL, Rohini. After depositing the exhibits at FSL, copy of RC was deposited in malkhana as token of receipt and that till the parcels remained with him, their seals remained intact.
41. PW70 IO Inspector Dharam Veer Joshi had also deposed that on 20.3.2014 , he alongwith SI Sudhir and Ct. Pawan was present in the area of PS Darya Ganj in connection with investigation of this case. SI Rajesh Kumar and others met them near Moti Mehal, Darya Ganj and they also joined them. While they were present near Andh Mahavidhyalya near Pataudi House , SHO Jama Masjid Inspector Giri Raj also met them. SHO Jama Masjid revealed secret information to PW 70 that Javed, one of the persons who had committed the murder of the deceased was present at Subhash Park. A raiding party was organized. Few public persons were asked to join the investigation but they all refused.
State Versus Mahender Nigam and Others 47/177 48 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Thereafter they reached Subhash Park and at the instance of the informer apprehended one person namely Javed. Javed was interrogated and he confessed about his involvement in this case. He was arrested and his personal search was conducted vide memo Ex.PW68/F and PW68/H. PW70 further deposed that one slip was found from the pocket of Javed bearing name of Umesh @ Bankey with some telephone numbers. The slip was seized vide memo Ex.PW68/H1 and marked as Mark 68 /A (as a mark of identity of the document). Accused javed was interrogated and he made disclosure statement Ex.PW68/J at the PS revealing certain mobile numbers. PW70 further deposed that during investigation, it was revealed that the conspiracy was hatched to commit this murder. Accused Javed disclosed the names of other persons who were involved in the murder (Ex.PW68/J) and also disclosed certain numbers i.e. 56141033, 9899656654, 9899335040, 9818662979 and his own number 56087574. Accused Javed further stated that he had been communicating with the aforesaid numbers through his own number. PW70 further stated that the cell phone no.56087574 which was being used by Javed was recovered during his personal search and the entire information with regard to telephone numbers was conveyed to Inspector Rakesh Giri who joined the investigation with the orders of senior police officials. On the basis of the disclosure statement Ex.PW68/J, accused Javed led the police party to shop 1810, Gali Chabuk Sawar of Mohd. Amin and got recovered Rs.1,18,000/- which he had kept with Mohd. Amin. The aforesaid currency notes State Versus Mahender Nigam and Others 48/177 49 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC of Rs.500/- denomination each were taken out by Mohd. Amin and handed over to the police which were kept in a blue polythene bag. There were two wads of currency notes and 36 loose currency notes. These currency notes alongwith polythene bag were sealed with the seal of DVJ and seized vide seizure memo Ex.PW2/A. He recorded statement of witnesses. PW70 also deposed that at the time of arrest of accused Javed, one burn injury mark was observed on the upper portion of left thigh during his body inspection and accused Javed disclosed that he had sustained the said injury by the heat of the fire arm which he had placed in the left dub soon after firing the gun shot on Babli. Thereafter accused Javed led the police party consisting of PW70, SI Rajesh Kumar, SI Sudhir and other staff, to his house bearing no.1101, gali Chabuk Sawar, Lal Kuan where accused went up to the first floor of the said house and produced two shirts after taking out from a steel almirah,. One shirt was of blue and red colour and the other was of cream colour by stating that blue and red shirt was worn by him and the other was worn by Abrar at the time of incident. Both the shirts were kept in pullandas and sealed with the seal of DVJ and seized vide memo Ex.PW68/K.
42. PW70, SHO Dharamvir Joshi further stated that while they were returning with accused Javed and had reached near Ajmeri Gate , they met with one public person Vishal who also joined the investigation of this case. Thereafter accused Javed led the police party alongwith Vishal to Kucha Challan 2613, Chandani Mahal. He State Versus Mahender Nigam and Others 49/177 50 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC pointed out towards a person known as Abrar, who was his associate. Accused Abrar was interrogated formally and was arrested vide memo Ex.PW9/B, his personal search memo Ex.PW9/C was also recorded. From the personal search of accused Abrar one mobile phone make Motorola no.56141003 and Rs.45 were recovered. He was taken to PS where he made disclosure statement Ex.PW9/A . Consequent upon the said disclosure statement, Abrar led the police party to his house no. 2613, Kucha Challan for recovery of currency notes from where he produced one white coloured polythene bag concealed behind the clothes in the almirah. From this polythene bag , he produced currency notes of total amount of Rs.88,000/- wrapped in a newspaper which were 8 wads of Rs. 50/- currency note denomination each and 96 notes of Rs.500/- denomination each. These notes were sealed in a parcel sealed with the seal of DVJ and were seized vide memo Ex.PW9/D. Both accused were got medically examined and doctor was requested vide application Ex. 69/A to examine injury on left thigh of accused Javed and doctor referred this application to forensic department. Thereafter they returned to the police station and recovered case property was deposited in the malkhana.
43. On 21.3.2004 PW70 along with SI Sudhir and other police staff took up the investigation. Accused Javed and Abrar taken out from lock up and accused Javed led police party to Experto Art Studio 3467 NS Marg , Opposite Police Station Draya Ganj and pointed out that State Versus Mahender Nigam and Others 50/177 51 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC from this shop, he had obtained two number plates bearing no. DL-1SM-3957 and pointing out memo Ex.PW57/A to this effect was prepared. Accused Javed again led the police party to the place of occurrence and got prepared a sketch Ex.PW57/B. Both accused persons were taken on police remand. Sh. Dharamvir then deposed that on 22.3.2004 , accused persons were taken out from lock up and investigation of the case was taken up. Accused Javed made disclosure statement Ex.PW68/L. PW70 also deposed that while they were proceeding with accused Javed for recovery of the weapon , they met one Vishal on the way who also joined the police party. Accused Javed led them to Kanchan Puri, Jhuggi No. I-85 at Raj Ghat and got recovered one country made pistol from a box lying inside said jhuggi. Sketch of country made pistol Ex. PW9/E was prepared and it was kept in a parcel which was sealed with the seal of DVJ and seized vide Ex.PW9/F. Efforts were made to trace other accused persons named in the disclosure statement and thereafter they returned to PS, deposited the case property in the malkhana.
44. PW 70 further deposed that on 23.3.2004, SI Sudhir was sent for the medical examination of accused Javed and he got him medically examined vide MLC Ex.PW8/A. Since doctor wanted to see weapon before replying to the query raised through application Ex.PW70/B, SI Sudhir collected the fire arm from MHCM on 24.3.2004 and showed the same to the doctor concerned and came State Versus Mahender Nigam and Others 51/177 52 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC with opinion Ex.PW8/B and C. The parcel duly sealed with the seal of the hospital was again deposited with MHCM.
45. PW68 SI Rajesh Malhotra deposed that on 20.3.2004, he again joined the investigation of this case. On that day he alongwith HC Yatinder and Ct. Sudhir was present in Gali Moti Mahal, Darya Ganj, where Inspector Dharamvir Joshi, Ct. Pawan and SI Sudhir met him and they all reached Arya Anathalya, Pataudi House. There Inspector Giri Raj Meena, SHO PS Jama Masjid met them. Informer met SHO PS Jama Masjid and informed that one of the accused of this case namely Javed was present in Subhash Park. IO asked 4-5 passersby to join the investigation but they all refused. They all alongwith informer went to the above mentioned place. On the pointing out of the informer , accused Javed was apprehended and was interrogated. After interrogation, he was arrested in this case vide arrest memo Ex.PW68/F and his personal search was conducted vide memo Ex.PW68/G. One slip marked PW68/A recovered during search was separately seized vide memo Ex.PW68/H and it was stapled in a separate sheet which bears signature of PW68. Pw68 further deposed that accused Javed produced this slip by saying that this slip was handed over to him by accused Mahesh with the direction that in case he is apprehended, he should take the plea that this murder was being managed by Umesh @ Bankey. Accused was brought to the PS for sustained interrogation and he was interrogated in presence of SI Sudhir, Ct. Sudhir and other staff by Inspector Dharamvir Joshi. The disclosure State Versus Mahender Nigam and Others 52/177 53 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC statement Ex.PW68/J of accused was recorded. In pursuance to the disclosure statement, accused Javed led the police party to the house of his friend namely Amin Ahmad, house no.1816, Gali Chabukaswar, Lal Kuan. It was a shop where Amin Ahmad was present and he was asked to produce the amount of Rs.1,18,000/- which was given to him by accused Javed out of the amount of Rs. 1,20,000/- received by him from other accused after commission of this offence. Amin produced one blue coloured polythene after taking it out from the almirah in the shop. Pw68 further deposed that from this polythene bag, two wads of 100 notes of Rs.500/- denomination each and 36 currency notes of denomination of Rs. 500/- each were recovered which were again kept in polythene bag and then put in cardboard box which was sealed with the seal of DVJ and seized vide memo Ex.PW2/A. Accused Javed thereafter led the police party to his house at 1101, Gali Chabuksawar, Lal Kuan and produced two shirt by saying that blue shirt is the same which was worn by him and one cream coloured shirt by saying this shirt was worn by Abrar, who changed his shirt in the house. Both the shirts were kept in a parcel which was sealed with the seal of DVJ and were seized vide memo Ex.PW68/K.
46. PW68 SI Rajesh further deposed that thereafter they alongwith accused Javed went in search of accused Abrar and when they reached Ajmeri Gate, one Vishal met them. Vishal was requested to join the investigation by IO and thereafter, they all alongwith State Versus Mahender Nigam and Others 53/177 54 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC accused Javed and public person Vishal reached 2613, Kucha Chelan where one person was sitting out side the house. Javed identified him as Abrar. Abrar was apprehended, interrogated and arrested vide memo Ex.PW9/B and his personal search was conduced vide memo Ex.PW9/C . Information regarding his arrest was conveyed to his father Nissar. Accused Abrar was brought to the PS and was interrogated. He made disclosure statement Ex.PW9/A. Thereafter accused Abrar led the police party to his residential house at 2613, Kucha Chelan. Efforts were made from neighbourhood to join the investigation but none agreed. Accused produced a polythene packet wrapped in a newspaper after taking it out from a steel almirah in a room at the first floor. The packet was opened and was found containing Rs.88,000/-. All the currency notes were converted into a parcel after putting the currency notes in the same polythene bag and newspaper which was sealed with the seal of DVB. The sealed parcel was seized vide memo Ex.PW9/D. Public witness Vishal was with them during the proceedings and seal was given to SI Sudhir. Thereafter they came back to PS.
47. PW68 further deposed that on 22.3.2004 , accused Javed and Abrar who were on police custody remand were taken out for interrogation. Accused Javed made a disclosure statement Ex.PW68/L and they proceeded from PS. When they came out of the PS, public witness met them near the gate of PS and on request, he again agreed to join investigation. Thereafter, both the State Versus Mahender Nigam and Others 54/177 55 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC accused led them to a Jhuggi in Kanchanpuri, Raj Ghat. Accused Javed disclosed that he purchased this jhuggi after the incident. The jhuggi was found locked. Javed informed that keys of this jhuggi were with Nadir. Persons from neighbourhood were asked to join the investigation, none agreed. The lock was broken open by the IO. There was a box inside the jhuggi. Accused Javed opened the box and took out one fire arm hidden under the clothes by saying that this weapon was used while committing the offence . The weapon was taken into possession. IO prepared sketch Ex.PW9/E and sealed the weapon with the seal of DVJ after putting it into a parcel and then was seized vide memo Ex.PW9/F . Seal after use was given to SI Sudhir. Thereafter they came back to PS.
48. PW 68 further deposed that on 23.3.2004 , both the accused were taken out for investigation and they reached Lahori Gate area in search of accused Nadir. IO received the information that wanted criminal of this case is present in the Vijay Park, Gali No.22. Thereafter they all along with both accused went to Gali No.22A, Vijay Park. Several persons were asked to join the investigation but none agreed. One motorcycle was spotted coming at the spot bearing no. DL-1SM-3957. The driver was identified by both the accused as Nadir and informed that for commission of this offence, this motorcycle was used. Nadir was apprehended alongwith motorcycle. It was Yamaha RX. Accused Nadir was examined and was arrested vide memo Ex.PW68/M and his personal search was conducted vide Ex.PW68/N. The motorcycle was seized vide State Versus Mahender Nigam and Others 55/177 56 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Ex.PW68/O and thereafter all three accused and case property were brought to the PS. Accused Nadir was interrogated on 24.3.2004 and he made disclosure statement Ex.PW68/P.
49. PW69 SI Sudhir Kumar deposed that on 20.3.2004, he was posted at PS Darya Ganj and on that day, he joined the investigation with Inspector Dharam Vir Joshi, SHO Darya Ganj and Ct. Pawan. Thereafter, they all left the Police Station for investigation of this case. When they reached corner of Gali Moti Mahal, SI Rajesh Malhotra alongwith HC Yatinder and Ct. Sudhir met them and they also joined the investigation. Thereafter, they all reached the place opposite Arya Anathalya where Inspector Giriraj Singh, SHO Jama Masjid met them. In the meantime, one secret informer came there and informed SHO, PS Jama Masjid that one person namely Javed @ Akil, who is resident of Lal Kuan was involved in murder of Babli and is present in Subhash Park, Jama Masjid. This information was shared with the members of raiding party and SHO Dharamvir Joshi asked 4-5 public persons to join the raiding party but none agreed. A raiding party was organized comprising of officials stated above and they all with informer reached Subhash Park. Informer pointed out towards a person present in Subhash Park. The said person was apprehended whose name was disclosed as Javed (correctly identified). Accused Javed was formally interrogated. Accused Javed was arrested vide memo Ex.PW68/F and his personal search was conducted vide memo Ex.PW68/G. One slip was also recovered during search. It State Versus Mahender Nigam and Others 56/177 57 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC was separately sealed vide memo Ex.PW68/H. This slip was stapled on a separate sheet and is mark PW68/A. Accused disclosed that this slip was given to him by Mahesh with the direction that if he would be nabbed by the police, he will take the name of Umesh. SHO Jama Masjid was relieved. Accused Javed was brought to PS Darya Ganj and he was interrogated. His disclosure statement Ex.PW68/J was recorded in pursuance to which, he led the police party to 1816 Gali Chabu Sawar Lal Kuan of one Amin Ahmad. Amin Ahmad was present there and on the asking of accused Javed, Amin Ahmad produced one blue coloured polythene from almirah. Upon checking, it was found to contain three bundles of currency notes of denomination of Rs.500/-. Two bundles were having 100 currency notes each while the third was having 36 currency notes each. The total amount of the said currency notes was Rs.1,18,000/-. The currency notes were again put in the same polythene bag and were placed in a cardboard box and then with the help of the cloth, this box was sealed with the seal of DVJ and was seized vide memo Ex.PW2/A. Amin Ahmad was examined. Thereafter Javed led the police party to his house at 1 st floor of 1101, Gali Chabuk Sawar and produced two shirts - one blue and red coloured worn by himself and other cream coloured shirt worn by Abrar. Both these shirts were sealed in a parcel with the seal of DVJ and were seized vide memo Ex.PW68/K. While they were returning and proceedings towards the house of Abrar, they met Vishal at Ajmeri Gate and he was joined in the investigation. Then accused Javed led the police party including State Versus Mahender Nigam and Others 57/177 58 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Vishal to house No.2613, Kucha Chelan where one person was standing outside the house and accused Javed pointed out towards him stating that he was Abrar.Accused Abrar was apprehended and was interrogated. He disclosed about his involvement in the murder of Babli. Accused Abrar was arrested vide memo Ex.PW9/B and his personal search was conducted vide memo Ex.PW9/C. The information regarding his arrest was conveyed to his father. He was brought to the police station. He was interrogated and his disclosure statement Ex.PW9/A was recorded . Accused Javed was left at the police station in the custody of Head Constable Yatinder and Ct. Sudhir. Thereafter, He alongwith Vishal, Inspector Dharamvir Joshi, SI Rajesh Malhotra, Ct. Pawan and with accused Abrar went to his house as per his disclosure statement. 4-5 passersby were asked to join the investigation but none of them agreed. Accused Abrar took the police party to the first floor of his house and took out one white polythene from the Almirah of his room. The said polythene was opened . It was found containing 96 currency notes of denomination of Rs.500/- each and 8 wads of 100 notes each of denomination of Rs.50/- wrapped in newspaper. Accused Abrar disclosed that these were the currency notes which were given to him for being party to murder of Babli. The recovered currency notes were again kept in the same polythene after wrapping in newspaper and were sealed with the seal of DVJ. The said currency notes were seized vide Ex.PW9/D. Seal after use was handed over to PW69 and thereafter, they alongwith accused Abrar returned to State Versus Mahender Nigam and Others 58/177 59 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC the PS, case property was deposited in the malkhana. Statement of public witness Vishal was recorded at PS. Thereafter they alongwith accused Javed and public witness Vishal proceeded in search of other accused persons. PW69 took accused Abrar and Javed for medical examination on the intervening night of20-21/3/2004 because accused Javed was having burn injury on upper front left thigh. The Doctor at Irvin Hospital referred accused Javed to the department of Forensic Medicine MAMC. The request of medical examination of Javed was proved as Ex.PW69/A. Since Forensic Medicine Department remained closed during night hours, PW69 took both the accused persons to PS and handed over the medical record of LNJP to IO. IO recorded statement of PW69.
50. PW69 further deposed that on 21.32004 in the morning hours, he alongwith IO Inspector Dharamvir Joshi, HC Yatinder, Ct. Balraj left PS with accused Abrar and Javed for further investigation. Accused Javed led police party to a shop no.3467 under the name and style of M/s Experto Art Studio just opposite the PS and disclosed that he got two number plates of motorcycle bearing no. DL1SM-3957 prepared, which were displayed on the motorcycle used in the crime. The pointing out memo Ex.PW57/A was prepared in this regard. IO recorded statement of Vikas, owner of said shop who was present at the shop. Thereafter, Police Party with the accused persons reached the place of murder i.e gali Moti Mahal and both the accused pointed out the place of murder and other places showing their movement and presence on the basis of which the State Versus Mahender Nigam and Others 59/177 60 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC site plan Ex.PW57/B was prepared . Thereafter accused Javed led the police party to public telephone booth having telephone no. 23281520 at N.S.Marg ahead of Moti Mahal and disclosed that in the morning of 25.2.2004 he had made a call to Abrar from this booth.
51. On 22.3.2004 both accused Javed and Abrar were taken out from lockup and PW69 joined the investigation with Inspector Dharamvir Joshi, SI Rajesh Malhotra, Ct. Sudhir and Ct. Pawan . Both the accused were again interrogated. Disclosure statement of accused Javed Ex.PW68/L was recorded. Thereafter, they all along with both the accused proceeded from PS and as soon they came out the PS, PW Vishal met them and upon their request, PW Vishal joined the investigation. They all then reached Kanchan Puri and accused Javed pointed out towards a jhuggi bearing no.I-85 on the bank of Nala which was found locked from outside. Some women were requested to join the investigation but none agreed. The lock was broken and accused took out one box from jhuggi and after opening the box, he produced one country made firearm. Sketch of katta (firearm) (Ex.PW9/E) was prepared and it was sealed in a parcel with the seal of DVJ and seized vide memo Ex.PW9/F. Seal after use was given to PW69 and statement of PW69 was recorded. They returned to the PS, IO deposited case property in the malkhana.
52. Pw69 further deposed that on 23.3.2004 , he again joined the investigation and on the instruction of IO, he took accused Javed to State Versus Mahender Nigam and Others 60/177 61 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC MAMC and handed over the application of the IO to the concerned doctor for taking opinion on the points mentioned in the application mark PW69/A. Doctor examined the accused Javed and prepared his MLC Ex.PW8/A. Doctor Rohit also instructed PW69 to produce the weapon for the purpose of opinion. PW69 took the accused to PS and handed over his MLC to the IO. Thereafter on 23.3.2004, PW69 alongwith Inspector Dharamvir Joshi, SI Rajesh Malhotra, Ct. Pawan, Ct. Sudhir with both accused proceeded from PS in search of other accused Nadir. When they reached the area of Lahori Gate, informer met the IO and informed that the accused Nadir would come at Vijay Park in Gali No.22A. Thereafter the entire police party with accused persons proceeded to said place and made nakabandi with the help of barricades at Gali No.22A. Police officials took their respective positions and waited for the accused. After a short while, one boy came there on a motorcycle and both the accused pointed out towards the said boy stating that he was Nadir. Nadir was interrogated and was arrested vide memo Ex.PW68/M. His personal search was conducted vide memo Ex.PW68/N. One mobile phone was recovered from the personal search of accused Nadir. All the three accused persons disclosed that the motorcycle bearing no. DL-1SM-3957 was used in the commission of offence. The motorcycle was seized vide memo Ex.PW68/O. PW69 further deposed that thereafter, the entire police party alongwith the accused persons came back to the PS around midnight on 23/24.3.2004. On 24.3.2004 after midnight, accused Nadir was interrogated and his disclosure statement State Versus Mahender Nigam and Others 61/177 62 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Ex.PW68/P was recorded. IO thereafter, recorded the statement of PW69 and accused was put in lockup. On 24.3.2004 in the morning hours, IO instructed PW69 to get the weapon released from malkhana to seek opinion of the doctor about burn injury suffered by accused Javed. Accordingly PW69 got weapon released from malkhana and with accused Javed went to MAMC Department of Forensic Medicine. PW69 handed over the MLC of accused Javed, application mark X-20 to the doctor and also the weapon which was sealed with the seal of DVJ. After medical examination of accused Javed, the examining doctor handed over MLC and the weapon sealed with the seal of Department of Forensic Medicine MAMC, New Delhi alongwith sample seal of the hospital against the receipt Ex.PW8/C and thereafter PW69 came to PS and deposited the pullanda of weapon in the malkhana and he recorded the statement of MHCM (M) HC Mahesh and handed over the MLC to IO.
53. PW 8 Dr. Rohit from Forensic Medicine, Maulana Azad Medical College deposed that on 23.03.2004 at about 11.30 AM, he examined Javed @ Akil and after examining him, he prepared his MLC Ex. PW 8/A signed by him at point A. On local examination, he found the injury on the upper portion of left thigh of accused Javed to be 2x1 cm with redness in the centre, whitish area in the periphery with hyper-pigmented margins present over upper front of the left thigh 12 cms below the left anterior superior iliac spine. He had also given the opinion regarding the injury at point P which State Versus Mahender Nigam and Others 62/177 63 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC according to him was simple in nature. He deposed that he had given his opinion as per the queries put by the investigation agency. In his opinion, the possibility of injury being a burnt injury could not be ruled out. Also, according to him, the injury was more than two weeks in duration He had stated that for giving reply to the Question no. (ii) g, of the investigation agency , he wanted to see the recovered weapon. He further deposed that he had received sealed packets along with five sample seals sealed with the seal of DVJ and on opening the packet , he had found the same to be containing a fire arm which was countrymade katta having metallic barrel 16 cms long with outer diameter of 1.8 cms and inner diameter of 1 cm. After examining the fire arm, he gave his opinion regarding question No. (ii) . He opined that the possibility of injury being caused by the tip of barrel of the said ammunition (fire arm) can not be ruled out. He stated that he had also prepared a sketch of the weapon/katta which is Ex. PW 8/B and his opinion regarding the fire arm was Ex. PW 8/C. The katta when produced before the court was duly identified and exhibited as P1. He further deposed that when he examined the said countrymade pistol, he had signed on the wooden butt of the kata with the help of leucoplast and after examination, he had handed over the original MLC along with sealed weapon duly signed with seven seals along with sample seal to the IO.
54. In the cross examination of PW 8 the learned counsel for the accused Rakesh and Mahesh enquired about the meaning of State Versus Mahender Nigam and Others 63/177 64 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC "injuries being more than two weeks duration "to which, PW 8 had replied that two weeks means it is less than the duration that is taken by the scar to completely heal up which could be anything between 2 months to 6 months.
55. PW70 Inspector Dharam Vir also deposed that on 23.3.2004 he had left PS with SI Sudhir, SI Rajesh and other police staff with accused Javed and Abrar in search of other accused persons and more incriminating evidence against them. While they were present in the area of Lahori Gate, the secret informer met him and informed that the other associate of Abrar and Javed was to come in the area of Vijay Park, Mauzpur side. On receipt of this information some public persons were asked to join the raiding party but none joined. Thereafter a trap was laid near gali no.22 A , Vijay Park Mauz Pur side. At about 11.30pm a person was seen coming on motorcycle. On the pointing out of the secreter informer, he was apprehended and his name was disclosed as Nadir.(Accused Nadir was correctly identified). Accused Nadir was thereafter formally interrogated and arrested vide memo Ex.PW68/M. His personal search was conducted vide Ex.PW68/N in which apart from cash , a mobile phone make Motorola bearing No. 56087464 was also recovered. Accused Nadir was riding motorcycle bearing no. DL-1SM-3957 which was allegedly used in commission of offence as per disclosure statement of accused persons already arrested. The said motorcycle was seized vide memo Ex.PW68/O, after which they State Versus Mahender Nigam and Others 64/177 65 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC came back to police station and deposited the case property in malkhana.
56. PW70 further deposed that on 24.3.2004 all the three accused persons namely Abrar, Javed and Nadir were taken on police remand for seven days. On being interrogated, accused Nadir made disclosure statement (Ex.PW68/P). On his instructio, SI Sudhir took up investigation of this case alongwith accused Nadir on 25.3.2004 . SI Sudhir reported back to PW70 that accused Nadir had got recovered three mobile phones, two mobile chips, Rs. 1.20 lacs and one motorcycle Yamaha seizure memos of which were prepared by SI Sudhir vide Ex.PW14/A, PW14/B, PW14/C and PW14/D. The case property was deposited in malkhana under the instruction of PW70 by SI Sudhir.
57. SI Sudhir Kumar, who was examined as PW 69 also deposed that on 25.3.2004 on the instruction of the IO , he interrogated all three accused namely Javed, Abar and Nadir in the presence of HC Yatinder, Ct. Sudhir and Ct. Pawan. The disclosure statement Ex.PW57/C of Nadir was recorded. Thereafter, he alongwith all three accused persons and staff proceeded to the house of accused Nadir. When they reached the area of Chandani Chowk, they met Umesh @ Bankey near Moti Bazar Gali, who was joined in the investigation. They all were led by accused Nadir to his house 2404, gali Rangwali, Tilak Bazar, Delhi. Persons of the locality were asked to join the investigation, but none agreed. Nadir then led the police party to a room on the 1st floor and pointed towards an old rusted State Versus Mahender Nigam and Others 65/177 66 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC cooler. Some clothes were found placed in front of the cooler. He removed the clothes and took out three mobile phones kept in a polythene bag out of which, one was make GD-90 Panasonic. He produced this phone by saying that he was having this phone at the time of incident on 25.2.2004 and used this phone and another phone make Ericsson which was used by accused Javed. The phone make Ericsson belonged to him and was given to Javed two days prior to the incident and Javed returned this phone after the incident. The third phone, he got recovered was make Nokia 1100. He produced this phone by saying that he purchased this phone out of the money received by him in connection to this murder. All three mobile phones were seized vide memo Ex.PW14/A. Nadir also produced two mobile chips from a slit between the wall and the door frame of the room. Both the chips were put in a polythene bag and seized vide memo Ex.PW14/B . Nadir then removed the bricks kept under the right leg of bed towards head side and produced one black polythene. From this polythene 200 currency notes of denomination of Rs.500/- each and 2 wads of 100 notes of denomination 100/- were recovered. These items were sealed in a parcel with the seal of SK and seized vide memo Ex.PW14/C, the seal after use was given to HC Yatinder. Thereafter accused Nadir took the police party and the other accused persons to Delhi Diesel Petrol Pump, Wzirabad Road where one motorcycle bearing registration No. DL-4SH-0857 make Yahama was found parked near the petrol pump which was seized at the instance of accused vide memo Ex.PW14/D. Thereafter PW69 recorded the statement State Versus Mahender Nigam and Others 66/177 67 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC of witnesses, came back to PS and deposited case property with malkhana and after depositing the case property.
Recovery of country made pistol at the instance of accused Mahesh:
58. PW 26 Virender Yadav deposed that on 31.03.2004, he went to Police Station Darya Ganj to enquire about the development of the present case upon which SI Sudhir had told him that accused Mahesh had made a disclosure statement regarding country made pistol which was used in the commission of murder and accused Mahesh can get recovered the same from his house. He further deposed that SI Sudhir asked him to join the investigation whereafter , he along with SI Sudhir , accused Mahesh along with two constables went to Tilak Bazar , Gandhi Gali, Khari Baoli where accused Mahesh took the police party to his house and from a room situated on the ground floor of the house, accused Mahesh got recovered one countrymade pistol/katta from under the bed cover spread on the bed. Accused Mahesh disclosed that at the time of the commission of murder of deceased Yogesh Sharma, the pistol was used by accused Akil @ Javed on 25.02.2004. However, the pistol was given by accused Nadir to him for safe custody in his house. The sketch of the pistol was prepared by the IO vide Ex. PW26/A signed by him at point A. Thereafter, pulanda containing pistol was sealed with the seal of SK and seized vide memo Ex. PW 26/B. The pistol is Ex. P1 and the used cartridge is Ex. P2.
State Versus Mahender Nigam and Others 67/177 68 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
59. PW 69 SI Sudhir Kumar also deposed that on 31.03.2004 he again joined the investigation of this case. On that day IO directed him to interrogate accused Mahesh. Accused Mahesh was interrogated in the presence of Const. Pawan and Const Sudhir. He also recorded disclosure statement of accused Mahesh (Ex. PW 56/C). In the meantime, Virender Yadav @ Viji came to Police Station. He was asked to join the investigation of this case. Thereafter accused Mahesh led the police party consisting of himself, public witness Virender Yadav @ Viji, Const. Pawan and Const. Sudhir to his house No.93, Gandhi Gali, Tilak Bazar, Delhi. Some public persons were asked to join the investigation but they all refused. Accused Mahesh got recovered katta wrapped in a newspaper from the bed lying in the room on the ground floor of the house. Sketch of the katta ( Ex.PW26/A) was prepared. The same was sealed with the seal of SK and seized vide memo Ex. PW 26/B. Seal after use was handed over to Const. Sudhir after its use. Thereafter, he recorded statements of all the three witnesses and came back to the PS and deposited the case property in malkhana. On 31.03.2004 before interrogation of the accused Mahesh, he also interrogated accused Mahender Nigam and Nadir.
60. PW69 SI Sudhir deposed that on 15.4.2004 he received two parcels one sealed with the seal of Department of Forensic Medicine and another sealed with the seal of S.K. from Malkhana vide RC No.3/21 alongwith one slip mark 68/A and specimen signature of Mahesh exhibited Ex.PW65/R vide RC No.103/21 and State Versus Mahender Nigam and Others 68/177 69 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC deposited the same at FSL, Rohini. He deposited back the copy of RC with MHCM and also recorded the statement.
61. PW 30 Sh. A.K. Srivastava deposed that on 15.03.2004, five sealed parcels were received in FSL, Rohini out of three were sealed with the seal of DVJ and two were sealed with the seal of MAMC. He examined the same and prepared report on 15.04.2004 and same is Ex. PW 30/A bearing his signatures at point A. He had also given serological report in th is respect and same is Ex. PW 30/B bearing his signatures at point A.
62. PW 32 Puneet Puri stated that on 07.06.2004, he was posted as Senior Scientific Assistant (Ballastic) Govt. Forensic Delhi. On 15.04.2004. two sealed parcels of case FIR No.99/04, PS Darya Ganj were deposited in FSL. Parcel No. 1 was sealed with the seal of Department of Forensic Medicine and Parcel No. 2 was sealed with the seal of SK and the seals affixed on the said parcels were intact and they were as per the specimen seal. He further deposed that on opening the first parcel, one countrymade pistol .315 inch bore was found and marked as Ex.F1. On opening the second parcel, one countrymade pistol .315 inch bore was found and was marked as Ex.F2. On 17.03.2004, two sealed parcels bearing No. 3 and 5 sealed with the seal of AKS, FSL Delhi of case FIR No. 99/04, PS Darya Ganj were received in the ballistic division from the Biology division of FSL. On opening parcel No. 3, two bullets were State Versus Mahender Nigam and Others 69/177 70 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC found and were marked as Ex.EB1 and EB2. On opening the parcel No. 5, one full sleeves shirt marked Ex.C1 having two holes was found, one hole mark H1 on the right portion of front side and other hole mark H2 on the right portion of back side, one round neck T shirt marked Ex.C2 having two holes, one hole mark H3 on the right portion of front side and the other hole mark H4 on the right portion of back side, one banian marked Ex.C3 having two holes, one hole mark H5 on the right portion of front side and the other hole mark H6 on the right portion of back side along with one pant marked Ex.C4, one underwear marked Ex.C5, one pair of socks marked Ex.C6 and one pair of shoes marked Ex. C7. He further deposed that these contents have been mentioned by him in his report dated 20.06.2005. He had examined the weapon of offence as well as these exhibits. On examination, he found that the country made pistol .315 inch bore marked Ex.F1 and F2 were in working condition and accordingly test fire was conducted. Three 8mm/.315 inch bore cartridge from the Lab stock were test fired through the country made pistol .315 inch bore marked F1. The test fire cartridge case were marked as TC 1 to TC3 and recovered test bullets were marked as TB1 to TB3. Three 8 mm cartridges from the lab stock were also test fired through the country made pistol.315 inch bore marked as F2. The recovered cartridges cases were marked as TC4 to TC6. The recovered test fire bullets were marked as TB4 to TB6. The bullets marked Ex.EB1 and EB2 corresponded to the bullet of 8 mm/.315 cartridge. The individual characteristic of striations present on evidence bullet marked Ex.
State Versus Mahender Nigam and Others 70/177 71 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC EB1 and on test fired bullet marked TB1 were examined and compared under the comparison microscope and were found identical. Hence, it was concluded that the exhibit EB1 had been fired through the countrymade pistol .315 "bore marked F1.
63. PW 32 further deposed that the individual characteristic of striations present on evidence bullet marked Ex.EB2 and on test fired bullets marked TB4 and TB5 were examined and compared under the comparison microscope and were found identical. Hence, it can be concluded that Ex. EB2 had been fired through the country made pistol .315" bore marked Ex.F2. The hole marked H5 on the front side of T shirt corresponded to the hole marked H1 on the front side of shirt and these holes have been caused by cupro jacketed bullet discharged through fire arm. The hole marked H6 on the back side of T shirt marked Ex.C2 corresponds to the hole marked H2 on the back side of shirt marked Ex.C1 and these holes have been caused by Cupro jacketed bullet discharged through fire arm. Tatooing was also observed around the holes marked H1, H2 and also on the cuffs of the shirt marked Ex.C1 and also on the back side of the T shirt marked Ex.C2. The exhibits marked F1 and F2 were fire arms and the bullets marked Ex.EB1 and EB2 were ammunition as defined in Arms Act. The exhibits were then resealed with the seal of PPFSL DELHI. His detailed report dated 07.06.2004 was proved as Ex. PW 32/ A bearing his signature at point A and his other report dated 20.05.2004 was proved as Ex. PW 32/B bearing his signature at pint A. Witness State Versus Mahender Nigam and Others 71/177 72 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC also correctly identified the case property i.e. the countrymade pistol (fire arm) as Ex. P1, another coutnry made pistol as Ex.PX1, two bullets as Ex. PY1 and Ex. PY2, Shirt as Ex.PZ1, round neck T shirt as Ex. PZ 2, Baniyan as Ex. PZ3, Pant as Ex. PZ 4, underwear as Ex. PZ 5, socks as Ex. PZ 6 and pair of shoes as Ex. PZ 7.
64. HC Pratap who was examined as PW 50 deposed that on 21.03.2004 , he was posted at PS Pahar Ganj but was on duty with Inspector Rakesh Giri along with const. Jasvinder for tracking the mobile record. On the instructions of Inspector Rakesh Giri, he had collected call details of various mobile numbers from service provider through e-mail. The relevant numbers among those number were related to Abrar and Javed. However, he did not remember the mobile numbers. Witness further deposed that the call details of these two Tata mobile numbers were seized vide memo Ex. PW 50/A and the call details which were obtained from e-mail were Mark 50 A and Mark HZ. The observation memo was also prepared which is Ex. PW 50/B. He had signed both the documents Mark 50/A and Ex.PW 50/B.
65. PW 50 further deposed that on 23.03.2004, he again joined the investigation of the present case with Inspector Rakesh Giri and upon the instruction of Inspector Rakesh Giri, call details of several mobile numbers were obtained through service provider. He along with Const. Jasvinder and Inspector Giri studied these call details and extracted the relevant information . Upon thorough study, State Versus Mahender Nigam and Others 72/177 73 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Inspector Rakesh Giri informed that IMEI number having last digit of 7070 was related to the mobile phone of Mahender Nigam. He further informed that IMEI number was being diverted on the mobile number belonging to PW50 and instructed him that as and when any call was received from the above said IMEI, he will pass the information to Insp. Rakesh Giri immediately. Witness further deposed that accused Nadir was in custody at that time. Thereafter, call details of two mobile number of HUTCH company and one IMEI number belonging to Nadir were studied. The observation memo was prepared and same is Ex. PW 50/C. The cell ID chart of Hutch company and above mentioned call details were seized vide memo Ex. PW 50/D and the above mentioned documents were collectively marked as Mark 50/B (running into 25 pages).
66. PW61 Inspector Rakesh Giri deposed that on 11.3.2004 he was posted as Inspector Special Staff Central District. Upon the instruction of senior officers, he joined the investigation of this case. He was entrusted to monitor and study the call details of the suspects.
67. He further deposed that on 21.3.2004 he studied the call details of mobile phone of accused Javed and Abrar which were allegedly used by them on the day of incident. These phone numbers were 56141003 and 9899656654 and on study he found that on the number 9899656654 there were 11 calls on the day of incident by phone having last digit .......979 allegedly belonging to Mahesh. He clarified and stated that 11 calls above were received on phone no.
State Versus Mahender Nigam and Others 73/177 74 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC 9899641516. Seven calls were received prior to the time of incident and four after the time of incident. Only one call was received on mobile phone ...979. The number 9899641516 was a new chip which was ascertained after study of call detail record. It was allegedly used in the instrument of accused Mahesh on his mobile phone issued in his name and having last digit .......262.
68. PW61 further testified that on 14.3.2004 again a number of persons were interrogated and few mobile numbers were kept under surveillance. On 16.3.2004 he confirmed the time of occurrence with the help of technical method and study of mobile phones record. The time of occurrence came to be established as 11.15 am on 25th February'2004. The information of this incident was received by the PCR at 11.17 am from one Kasim from a PCO which was 15 yards away from the place of occurrence.
69. On 21st March,2004, he studied the mobile number of Javed and Abrar used on the day of occurrence. One mobile number was 56141003 and the other one was 9899656654. By the study of mobile phone CDR, it was revealed that Javed had made three calls on 25.2.2004 between 10.50am to 11.05am on mobile no. 9899335040 which was relating to accused Nadir and on 9899656654 he received 7 calls from mobile no.9899641516 being used by Mahesh from 10am to 11.15am on 25.2.2004 prior to the incident. After the incident, four calls were also received on the same phone from same number. The CDRs of these number were obtained through e-mail of Addl. DCP Central.
State Versus Mahender Nigam and Others 74/177 75 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
70. PW61 further deposed that on 21.3.2004 , SI Pankaj was sent to the office of Tata Indicom to observe the calls made and received from Tata Mobile no. starting with the digit 56 and ending with digit 7564 belonging to Nadir. The conversation heard by SI Pankaj between Nadir and the wife of his counsel was studied. On 23.3.2004 , accused Nadir was arrested and was interrogated by the IO of PS Darya Ganj in the presence of PW61. Accused Nadir disclosed about the telephone numbers which were used by him and his associates on the day of occurrence and the mobile phones being used by accused Mahesh. The call details of the said mobile phones were obtained through e-mail of Addl. DCP Central from service provider. On the day of incident accused Nadir was found to be using mobile phone nos. 9899335040 and 9899523816. On the mobile phone no. 9899335040 accused Nadir had received three calls prior to the incident from mobile no. 56141003 which were relating to Javed and Abrar. Phone no. 56141003 belonged to Abrar but was being used by Javed on the day of occurrence and after the incident accused Nadir made 8 calls from no. 9899523816 to Mahesh, Javed and Mahender Nigam after the incident. On the date and time of incident, only one mobile instrument had been used by accused Nadir. The mobile phone no. 9899523816 and 9899335040 were also used in one mobile instrument. The seizure memo of CDRs of both the phones including the IMEI of the instrument was prepared.
State Versus Mahender Nigam and Others 75/177 76 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
71. SI Anil Sharma who was posted at PP Turkman Gate on 22.3.2004 was examined as PW 45. He testified that he remained on duty from 22.03.2004 till 25.03.2004 in the office of Airtel & Hutch Company at Okhla for tracing mobile calls details of IMEI no. 352539009267070. PW 45 also deposed that on 24.03.2004 at about 9.29 pm a call was traced coming on this IMEI Number from Dehradoon from landline No.1352621109 and at that time the number 9871150441 was running on this IMEI and that this call lasted for 233second. Pw45 further deposed that on 25.03.2004 one more call was received on this IMEI and mobile number at about 9.17 pm from landline no.1352607730 and this call lasted for 349 seconds. Thereafter the details of both the calls mark A were emailed to DCP Central and conveyed to Inspector Special Staff Central Sh. Rakesh Giri.
72. PW50 HC Pratap deposed that on 24.3.2004 he joined investigation with Inspector Rakesh Giri to record the conversation of the calls diverted on his mobile phone. Pw50 connected the recorder with audio cassette on his phone and about 8.40pm, one call was received on his mobile number 981830384 from the intercepted IMEI. This mobile number was activated only to receive the diverted calls of intercepted IMEI. PW 50 further deposed that at about 9.30pm another call in the same manner was received on his phone and that conversation was also recorded which was translated in Hindi . PW50 further narrated that the translated version of the calls which were heard by him are mark PW50/C & D State Versus Mahender Nigam and Others 76/177 77 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC and thereafter call details of six mobile numbers related to Mahender Nigam of various mobile companies and six mobile number relating to accused Mahesh of various mobile companies were studied. Pw50 also proved observation memos Ex.PW50/E and F and seizure of call details vide memo Ex.PW50/G & H and CDRs of the same mark PW50/E & F.
73. PW50 further deposed that on 25.3.2004 at about 9.17pm one call was received, heard and recorded in the same cassette and thereafter the call was heard by Inspector Rakesh Giri. Manuscript mark PW50/G was prepared and Inspector Rakesh Giri directed PW50 to prepare copies of the cassette containing all the three calls. PW50 prepared the duplicate and handed over all the three above mentioned transcripts and original and duplicate cassette to Inspector Rakesh Giri who sealed the original and duplicate cassette in a parcel with the seal of RGG and seized vide memo Ex.PW50/J.
74. PW 50 further deposed that on 26.3.2004, he studied the call details of one mobile number of Airtel relating to Mahender Nigam , one Airtel no. relating to Subhash and two mobile number relating to Nadir (one was of Hutch and other was of Tata). He also added that the CDRs were seized vide memo Ex.Pw50/K alongwith Cell ID Chart of Airtel which was proved as Ex.PW50/J.
75. PW52 Inspector Jai Narain deposed that on 28.03.2004 he alongwith Inspector Rakesh Giri of Special Staff went to Kanpur and State Versus Mahender Nigam and Others 77/177 78 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC reported at PS Naziabad. SO SI Udeybir Singh and police staff of concerned PS joined the investigation and thereafter they reached JK Temple, Kanpur near the shoe stall. They took positions near the shoe stall and kept on waiting as per the information. At about 8.00pm two persons were found roaming around the shoe stall whose faces were same as the photographs which were with them. After sometime one more person joined those two persons and he directed those two persons to move from that place. After covering a distance of 20-25 steps one more person joined those three persons. They all were stopped and interrogated. The two persons who came at shoe stall first were Mahesh and Rakesh and both of them made disclosure statement Ex.PW52/A and B respectively. The third person was Ganesh Nigam and he was interrogated and his disclosure statement Ex.PW52/C was recorded. All of them confessed to their involvement in this case and all three were arrested vide memo Ex.PW52/D,E & F and their personal search was conducted vide memo Ex.PW52/G,H and I. Accused led the police party to Niranjan Hotel at Kanpur. The manager of the hotel Ayodhya Prasad had also joined the investigation. Accused led the police party to room no.119 of the said hotel. Accused Mahesh and Rakesh produced one blue grey colour bag and took out Rs. 63,000/- wrapped in a handkerchief and produced the same to the IO by saying that it was part of the money which they received for commission of the offence. The currency notes were sealed in a parcel alongwith handkerchief with the seal of RGG and seized vide memo Ex.PW52/J . The clothes, bag and one mobile phone were State Versus Mahender Nigam and Others 78/177 79 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC also seized. One train ticket from Delhi to Dehradoon, four bus tickets , two receipts of a hotel of Garwal Mandal, one receipt of hotel at Dehradun and one receipt of hotel at Haridwar were recovered which were also seized vide seizure memo Ex.PW52/J. Witness correctly identified Ex.PW52/J. The train ticket of journey from Dehradun to Lucknow, four bus tickets, two receipts of Garwal Mandal Vikas Nigam, one receipt of hotel Akashdeep, Dehradun and one receipt of Dharamarth Hansniwas, Haridwar and stated that these were the same which were recovered from the said room. All the said documents were proved as Ex. PW 52/L (colly). He further stated that In his presence, photocopy of the hotel register already Ex. PW 15/ A and cash receipt Ex. PW 15/D were seized vide memo Ex. PW 15/B.
76. PW 61 Inspector Rakesh Giri deposed that on 24.03.2004 , he also studied some call details relating to accused Mahesh and Mahender Nigam. There were telephonic conversations between Javed and Mahesh on those mobile numbers out of 11 calls, 7 were prior to incident and 4 after the incident. During the study of call details, it was revealed that there were conversations on two occasions on the day of the incident between accused Mahesh and Nadir. One call was prior to incident and another after the incident. Accused Nadir was using mobile number 9899523816 and the mobile number of Mahesh was having last digit of 979. He also studied call details of mobile phones being used by accused Mahender Nigam. The phone number 9811126007 was in the State Versus Mahender Nigam and Others 79/177 80 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC name of one Pawan employee of Mahender Nigam, 35900174 in the name of Smt. Radha Nigam, 23868733 was the landline telephone number installed at the office of Mahender Nigam and 9899647103 was a temporary number. On 23.02.2004, there was a call from the mobile of deceased to telephone number 35900174 of Mahender Nigam. This call was of 11 minutes duration. On 24.02.2004, there were two calls one from the landline number 23868733 and other from 9811126007 which was of Mahender Nigam made on mobile number having last digits 1414 belonging to the deceased. On 24.02.2004, just after the aforesaid call there was one more call between landline number and mobile number 98996477103. It was a new SIM which has been used in the permanent instrument in which mobile no.9811126007 was operating having IMEI number 35152....370. On the day of the incident i.e on 25.02.2004 , the abovesaid mobile number and IEMI number were used. One call has been received from PCO in Chandni Chowk area at around 9.45 AM , the other at 11.20 AM, on same mobile number from mobile number 9899523816 relating to Nadir i.e. just after the incident. The call details of mobile phones of accused Mahesh as well as Mahender Nigam mentioned in Ex. PW 50/D & E were seized vide these memos.
77. PW 61 Inspector Rakesh Giri further deposed that during the interrogation of accused Javed, he provided some mobile numbers. He provided the number of accused Mahesh i.e. 9811511604 , 9818663731 and 9811217262. Call details of the abovesaid mobile State Versus Mahender Nigam and Others 80/177 81 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC phones were obtained and it was found that the two numbers i.e 9811511604 and 9818663731 were running on IMEI number 3520540036050. The IMEI number was kept under interception and during investigation , he came to know that on this IEMI another number 9818915081 was also running. Through the call detail report of the said number it was observed that there were conversation between 981895081 and mobile number 9871150441. Call detail record of the said number i.e. 9871159441 was obtained. This number was being used from IMEI no. 352539009267070 . The aforesaid IEMIs numbers were kept under interception as per the orders of the competent authority on the mobile phone of HC Pratap bearing No.9818130384 and HC Jasvinder No. 9818130494. The abovesaid IEMI number 352539009267070 allegedly relating to Mahender Nigam was intercepted on the mobile phone of HC Pratap while IMEI having last digit 6050 allegedly to be related to Mahesh was kept on interception on the mobile phone of HC Jasvinder.
Arrest of Accused Mahesh Kumar (Tomar) from Kanpur:
78. PW 61 Inspector Rakesh Giri has further deposed that on 24.03.2004 two calls have been received on above said IMEI number having last digits 7070 and both the calls have been recorded by HC Pratap in one cassette. On 25.03.2004, another call was received on the above said IMEI number having last digit 7070. This call was also recorded by HC Pratap in the cassette. Transcript of all the aforesaid calls were written on a paper and State Versus Mahender Nigam and Others 81/177 82 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC duplicate copy of the cassette was prepared. Both the cassettes were seized vide seizure memo Ex. PW 50/J. After listening to the cassettes, he prepared the transcript Ex. PW 61/A, PW 61/B and Ex. PW 61/C. He received information from SI Anil who had gone to Hutch company to hear the conversation of the above said calls. SI Anil confirmed that these two calls were received from Dehradun on the said IMEI. During the interception of the above said calls, it was revealed that the person speaking on IMEI No.........7070 having mobile no. 9871150441 directed the other person to reach at Birla Mandir, Kanpur on 28th at around 4.00 PM and then some body would meet him there and that some person would arrange his accommodation. On this information, on 28.04.2004, he along with his staff i.e Jai Narain proceeded to Kanpur and with the help of local police reached at Birla Mandir (corrected as J.K.Temple in cross examination) Kanpur at about 8.00 pm. Accused Rakesh and Mahesh reached at Birla Mandir and the third person Ganesh Nigam took them with him after having some conversation. He with the help of local police apprehended all the three near Birla Mandir, Kanpur and interrogated them. They were arrested vide arrest memo Ex. PW 52/D, E and F. Their personal search were conducted vide memos Ex. PW 52/G , Ex. PW 52/H and Ex. PW 52/I. Their disclosure statements were also recorded vide Ex. PW 52/A to Ex. PW 52/C. Thereafter, he along with the staff and the accused persons were led to Niranjan Guest House where accused Rakesh and Mahesh were staying. They pointed out towards room No.191 and produced State Versus Mahender Nigam and Others 82/177 83 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC one bag lying in the room containing their belongings including one mobile phone having IMEI No. 352....6050 along with one chip. The said instrument was already kept on interception since 23.03.2004. During investigation, it was found that previously this IEMI number was being used on mobile no. 9810902523 which was in the name of Subhash @ Nati, prior and on the day of incident up to 04.03.2004. The mobile phone and the belongings including receipt of Hotel/Guest Houses at Haridwar, Dehradun and Garhwal were taken into possession. The hotel visitors register , copy of which is Ex. PW 15/ A was seized vide memo Ex. PW 15/B along with the receipt of the hotel. Currency notes to the tune of Rs.63,000/- were also recovered from the bag. Same were sealed with the seal of RGG. The mobile phone, currency notes and belongings were seized vide memo Ex. PW 52/B (Ex.PW 15/C). The receipt in four pages were collectively proved as Ex. PXA and the ticket as Ex. PXB. All the accused were brought to Delhi on transit remand. The receipt of Niranjan Guest House was proved as Ex. PW 15/D. He also took into possession call details record which were studied by him. The call detail record of mobile no. 56141003 and 56087574 were seized vide memo Ex. PW 50/ A and the call detail records were marked as Mark H 2 and Mark 50/A. The observation memo was prepared by him which was proved as Ex. PW 50/B.
79. PW 61 Inspector Rakesh Giri further deposed that on 23.3.2004, the call detail records of mobile phones of 9899335040 and State Versus Mahender Nigam and Others 83/177 84 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC 9899523816 and their IMEI having last digits....240 were seized vide memo Ex. PW 50/D. The call detail records of both the numbers were marked 61/A and Marked 61/B. The IMEI call detail records of these numbers was proved as Ex. PW 15/B. The observation memo prepared by him was already proved as Ex. PW 15/C. The site location chart of Hutch company Mark 61/C was also seized vide memo Ex. PW 50/D. On 24.03.2004 the call detail records of mobile phone numbers 9899641516 , 981121762,9811662979, 9811511604 and 9818663731 and 981891508 were studied. He prepared seizure memo Ex. PW 50/D and the call detail records ( marked as Mark 50/F, MarK C2, Mark A2, Mark 61/D, Mark 61/E and Mark 61/F). The observation memo prepared by him after studying the call details record was proved as Ex. PW 50/F.
80. PW 61 further deposed that the last three numbers stated above were temporary numbers. On the same day, call detail records of mobile number 9811126007, 9899647103, 35900174, 9871122785, 9871150441 and 9811101330 were collected and seized vide memo Ex. PW 50/G. The observation memo of these call detail records were Ex. PW 50/E, Mark A, Mark 61/G, Mark D 2 & D3, Mark 61/H and Mark 61/I. The site location chart of Hutch was Marked as 50/J, which was also taken into possession. On 26.03.2004, call detail records of four mobile phones 9810902523, 9899656654, 9871150441, 56087464 were studied. The call detail records of the aforesaid numbers were exhibited as Mark 50/H, State Versus Mahender Nigam and Others 84/177 85 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Mark A, Mark P2, Mark K2 , Mark 61/J along with the site location chart mark 50/J which were seized vide memo Ex. PW 50/K. During his deposition, PW61 had produced two cassettes ( Ex.PC and Ex.PD) sealed in the seal of the Court which were played on a tape recorder. On hearing it was observed that the contents of the cassette Ex.PC tallied with the transcript ( Ex.PW61/A, PW61/B and Ex.PW61/C) prepared by PW61.
81. During his cross examination , PW 61 Inspector Rakesh Giri testified that that he had investigated this case on the directions of DCP (Central). The call details of mobile numbers 56141003 and 9899656654 were not studied during 11.3.2004 to 20.3.2004. He received these numbers on 20.03.2004 i.e after the arrest of accused Javed. He came to know in the evening of 23.03.2004 that accused Javed had been arrested in this case. The phone number 56141003 was issued in the name of accused Abrar Hussain. In the month of March 2004, the investigation of the case was being monitored by Inspector Dharamveer Joshi and he was assisting him. He had gone to Kanpur for investigation of this case and had reached Kanpur on 28.03.2004 around lunch time. He did not meet any member of the management committee of J.K. Temple in Kanpur but the area around the temple was cordoned around 2-3 hours before the arrest of the accused persons. There were no shops inside the temple premises. There was a room for keeping the shoes of devotees before entering inside the temple. He also State Versus Mahender Nigam and Others 85/177 86 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC testified that ex. PW 61/DX was the application for transit remand of the accused persons which he had moved in the Kanpur Court.
82. During the cross examination, PW 61 conceded that in the transcriptis Ex. PW 61/A and Ex. PW 61/ C, neither the caller of the phone nor the receiver of the phone call have addressed each by their names. He further admitted that he had written the names of Mahesh and Mahender Nigam in the transcript without ascertaining the identity of the caller or the receiver of the call. He clarified his above statement by stating that it was his own observation that the telephone conversation of which transcriptions Ex. PW 61/ A and Ex. PW 61/C have been made were between accused Mahender Nigam and accused Mahesh as he was given the phone numbers of these two persons for interception. He further explained that he had also interrogated the accused Mahender Nigam and therefore, he could recognize his voice. He further admitted that his above explanation was not mentioned in the transcripts Ex. PW 61/ A and Ex. PW 61/C and the observation memo Ex. PW 50/F. He did not know accused Mahnder Nigam prior to the investigation of this case. He did not remember the date when he called accused Mahender Nigam for interrogation. Besides, Banke, Mahender Nigam, he had called 15-20 persons at different times but he did not remember their names. He did not ever visit the house of accused Mahender Nigam till he remained associated with the investigation of this case. He did not talk with accused Mahender Nigam on telephone during the period of investigation. He left at State Versus Mahender Nigam and Others 86/177 87 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC about 6 AM by Purshottam Express for Kanpur and reached there at about 1.30 PM. The intimation was already given to the police of Kanpur about their investigation. He had visited police station Nazirabad in Kanpur at about 3.00 PM.
Arrest of accused Mahender Nigam
83. PW 70 Inspector Dharamvir Joshi deposed that in the evening of 29.3.2004, Inspector Rakesh Giri had come from Kanpur after having arrested accused Rakesh and Mahesh and they were brought on transit remand from Kanpur. He had received the documents prepared by Inspector Rakesh Giri and took over the further investigation regarding accused Rakesh and Mahesh. Inspector Giri had also arrested accused Ganesh Nigam, brother in law of accused Mahender Nigam from Kanpur. Ganesh Nigam has since expired. On the basis of information and evidence collected during the course of investigation, he along with SI Rakesh and SI Sudhir and other police staff proceeded to the house of accused Mahender Nigam in East of Kailash. Accused Mahender Nigam was formally interrogated there and was arrested vide memo Ex. PW 68/Q and his personal search was conducted vide memo Ex. PW 68/R and a mobile phone make Nokia No.9811126007, wrist watch, personal diary, few visiting cards and cash etc. were recovered from him. The IMEI number of the mobile phone was recorded in his personal search memo (Ex.PW 68/R). The disclosure statement of Mahender Nigam was recorded as Ex. PW 68/S after his interrogation. He was also got medically examined State Versus Mahender Nigam and Others 87/177 88 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC and thereafter they all returned to Police Station and got case property deposited in malkhana.
84. PW 70 Mr. Joshi has further deposed that on 31.03.2004, he again instructed SI Sudhir to conduct further investigation in the case. Accordingly, SI Sudhir interrogated accused Mahesh. SI Sudhir after conducting investigation produced a katta in sealed condition which he had recovered at the instance of accused Mahesh from his residence and had seized vide seizure memo (Ex. PW 26/B). His disclosure statement was proved as Ex. PW 56/C. On 01.04.2004, SI Sudhir was again instructed by Inspector Dharamvir Joshi to conduct further investigation in this case. SI Sudhir interrogated the accused Mahender Nigam who made disclosure statement Ex. PW 57/E and got recovered four mobile phones and certain property documents which were seized vide Ex. PW 9/G and Ex PW 9/H. He had seized the documents vide memo Ex. PW 9/H at the spot. SI Sudhir during investigation interrogated accused Javed who made disclosure statement Ex. PW 56/B upon which IO SI Lekh Raj was deputed to trace out the source of weapon of offence from Hapur as disclosed vide statement Ex. PW 56/B . From Hapur, SI Lekh Raj came to know the fact that the two persons as named in the disclosure statement i.e Naim and Faimuddin were already in JC for running a factory of illegal weapons which was sealed.
85. PW 70 Inspector Dharamvir Joshi further deposed that on 02.04.2004, as per the facts disclosed by accused Mahender State Versus Mahender Nigam and Others 88/177 89 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Nigam in his disclosure statement , he had examined Devender Singh and Balbir Singh and had recorded their statements. On 04.04.2004, he had recorded the statement of Sunil Kumar, Swatanter Kumar and Krishan Mohan. They were the persons who had last dealt with the accused Mahender Nigam and the deceased and had paid Rs.50,000/- as token amount to Babli (deceased). On the same day, accused Mahender Nigam revealed about the bank accounts in his name and in the name of his family members. As per his instructions, SI Sudhir Kumar collected statements of bank accounts of the aforesaid persons from UCO Bank, Chawri Bazari and Punjab & Sind Bank, Chandni Chowk. He also took specimen handwriting of Mahesh on 11 sheets which were already exhibited. During interrogation of accused Mahesh, it was revealed that the Motorola mobile phone recovered from his possession actually belonged to Subhash @ Nati and that the phone make GD 92 of accused Mahesh was with Subhash Nati. It was also revealed that this exchange of mobile had taken place after the incident in question. During the investigation on 06.04.2004, he also got prepared scaled site plan by the Draftsman Insp. Devender Singh at the instance of SI Rajesh Malhotra and recorded their statements. In June 2004, he also collected ballistic report from FSL and also requested for the sanction under Section 39 of the Arms Act which was received on 11.06.2004. He had recorded the statements of the witnesses and after completion of investigation had prepared the challan.
State Versus Mahender Nigam and Others 89/177 90 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
86. PW 70 Inspector Dharamvir Joshi further deposed that he had moved an application dated 04.04.2004 (Ex. PW70/PX) before the learned MM seeking permission to obtain voice sample of accused Mahender Nigam and Mahesh. The said application was finally disposed off vide separate order dated 13.05.2004.
87. PW 68 SI Rajesh Malhotra deposed that on 29.03.2004, he along with the IO, SI Sudhir, HC Yatinder and const. Pawan went to E-228, First Floor, East of Kailash i.e. residence of accused Mahender Nigam. His wife was present in the house. After some time, accused Mahender Nigam came to his house. He was interrogated and then arrested vide memo Ex.PW 68/Q. His personal search was conduced vide memo Ex. PW 68/R. Jugal Mehto , domestic help of accused Mahender Nigam was present at the time of his arrest. He also signed the memo. Thereafter , they came to the PS. Accused Mahender Nigam was interrogated at length on 30.03.2004. His disclosure statement ( Ex.PW68/S) was recorded on 30.03.2004 at the Police Station. PW68 had identified the case property i.e motorcycle bearing registration no. DL-1S-M-3957 and had also identified the fire arm as Ex.P1, he also identified the shirt worn by accused Javed and Abrar produced as Ex. PX 1 and Ex. PX2.
88. PW 69 SI Sudhir also deposed that on 01.04.2004, IO instructed him to interrogate all the accused persons namely Javed, Abrar, Nadir, Mahender Nigam, Mahesh, Rakesh and Ganesh Nigam. All the accused stated above were taken to JPN Hospital for their State Versus Mahender Nigam and Others 90/177 91 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC medical examination, where they were medically examined. Thereafter he took all the accused persons to Kucha Dakhni Rai, Darya Ganj i.e. near the place of occurrence. Accused Abrar, Javed, Mahesh and Nadir pointed out towards a shop No.1593 namely Ahuja STD Shop, where Sh. Krishan Kumar Ahuja, owner of shop was present. He produced computerized slip of call made on 25.02.2004 on mobile no. 9810902523 from his shop having No. 23258669 made by accused Mahesh on the mobile phone of Subhash @ Nati. The slip (Ex. PW 18/ A) was seized vide memo Ex. PW 56/ A. Statement of Krishan Ahuja was recorded wherein he gave number 232558669. Therefrom, accused Mahesh and other accused persons led them to shop no. 3696, NS Marg, Darya Ganj near Diamond Palace Hotel, which was a fruit shop . Accused Mahesh disclosed that previously on 25.2.2004 it was a STD shop. The fruit vendor informed that he had purchased the said shop from Murad Ahmad on 27.02.204, who was now running STD shop in a gali near Sabri Masjid. They then proceeded to said shop where Murad Ahmad was found present Murad Ahmad produced computerized slip of his shop . The slips (Ex.PW 56/E) were seized vide memo Ex.PW56/F. He recorded statement of Murad Ahmad. Thereafter the entire police party along with all the accused stated above came to the police station. Disclosure statement (Ex.PW56/B) of accused Javed as to procurement of fire arm was recorded. He examined the witnesses. He took out accused Mahender Nigam from lock up for interrogation in the State Versus Mahender Nigam and Others 91/177 92 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC custody of HC Yatinder and Const. Sudhir. He recorded disclosure statement (PW57/E) of accused Mahender Nigam.
89. PW 69 SI Sudhir further deposed that on 01.04.2004, accused Mahender Nigam made disclosure statement Ex.PW57/E. In the meantime, one Vishal came to the police station. He also joined in the investigation of this case. Police party along with accused Mahender Nigam and Vishal proceeded to the house of Mahender Nigam. The ladies on the ground floor were requested to join the investigation but they refused. Accused then led the police party to his house on the first floor and produced four mobile phones from almirah. One was Reliance phone No. 35900174 , another was Samsung Folding phone, third phone was of make Nokia Model 7250 and another was Nokia model 3315. All the four phones were seized by keeping in separate pulandas vide memo Ex. PW 9/ G. Out of four, three mobile phones were without chips. From the said almirah, accused Mahender Nigam also produced some photocopies of the documents pertaining to some property ( Ex. P6, Ex.PW 32/A, Ex. PW 26/C, Ex. PW 26/D) which were seized vide memo Ex. PW 9/H. He recorded the statement of witnesses and came to the police station and deposited the case property in malkhana.
90. On 25.04.2004 on instructions of the IO, PW 69 SI Sudhir along with const. Hira reached shop no.1593, Kucha Dakhni Rai, Ahuja STD shop, where he met Krishan Kumar Ahuja and obtained photocopy and also seized the register (Ex.69/x) containing the State Versus Mahender Nigam and Others 92/177 93 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC concerned calls dated 25.02.2004 on telephone no.9810902523 from no.23258669 and seized the same vide memo Ex. PW 18/C. He recorded the statement of Krishan Kumar Ahuja. The copy of the relevant entry of the register is Mark A. He also recorded the statement of Const. Hira Lal. Thereafter, they came back to PS.
91. PW 53 Hira Singh deposed that on 25.04.2004, he along with SI Sudhir went to STD shop at 1593 in the area of Kucha Dakhni Rai where the owner of the shop Kishan Kumar Ahuja was found to be present. He was asked to provide the document i.e the register. It was found that the phone number 23258669 belonged to the said STD booth. He produced the register containing the entries of phone calls made from said booth. The entries in the register was seized vide memo Ex. PW 18/C. The register commenced w.e.f 12.02.2004 to 24.04.2004. The register also proved as Ex. PY.
92. PW 69 SI Sudhir Kumar further testified that on 13.05.2004, IO instructed him to collect the ownership details of mobile phones appeared to have been used in this case. He handed over the applications in the office of TATA, Indicom, Hutch, Cellular Ltd and Airtel (Bharti Cellular Company). The acknowledgment of the receiving copies of the applications were Marked Z1 to Z 23. On 15.05.2004 , he received copy of the court proceedings vide which the accused Mahender Nigam and Mahesh had refused to give their voice sample. On 25.05.2004 as per the requirement of FSL, he procured six live cartridges of .315 bore from the Shamshuddin Gun House after obtaining the permission from DCP Licensing and State Versus Mahender Nigam and Others 93/177 94 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC he deposited these cartridges at FSL , Rohini. On 27.05.2004, on the instructions of the IO, he went to UCO Bank, Chawri Bazar to collect the details of account of Mahender Nigam. He met Sh. Neeraj Narain, Manager who gave details of two saving bank account bearing Nos.20235 and 20335 and two current account nos.8733 and 8734 in the name of accused Mahender Nigam. He received statement of account of these bank accounts. The receiving copy of the application were Ex. PW 69/Y-1 and Ex. PW 69/Y-2. Thereafter, he proceeded to Punjab and Sind Bank, Chandni Chowk and collected the statement of current account no. 3946 in the name of the firm whose proprietor was Mahender Nigam. The application was proved as Ex. PW 38/H . He then recorded the statements of the concerned witnesses and came to police station. On 29.05.2004 he collected proof of ownership of mobile connection as (Mark Z1) and details (Mark Z4) were provided by TATA Indicom. Details from Hutch Cellular Company (Mark Z2) was also collected . The details are mark Z5 and Z6. Thereafter, he went to the office of Air Tel to obtain the response in pursuance of Mark Z3. The information from Bharti Cellular was received through a e-mail (Z7).
93. PW 69 SI Sudhir Kumar further deposed that on 03.06.2004, on instruction of IO, he went for verification of the address of the persons in whose name the mobile connections were issued. In this process, he went to 1868/142, Ganesh Pura, Tri Nagar, Delhi in connection with the investigation of mobile no.9811126007 where State Versus Mahender Nigam and Others 94/177 95 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC he met one Sh. Pawan Kumar Dass. He recorded his statement. He was an ex-employee of accused Mahender Nigam. Thereafter, he went to House No 2900, Gali Captain wali, Darya Ganj, Delhi regarding verification of mobile number 56141003 where Salman- Ul-Haque, neighbour of accused Abrar, met him who was examined and his statement (Ex. PW 69/X) was recorded. He also verified the other mobile numbers whereby the identity of the connection holder was found fake. On 10.06.2004, he went to Central District control Room and obtained photocopy of log book concerning incident dated 25.02.2004. He recorded statement of HC Naubahar. Then he proceeded to Police Head Quarters where he recorded statement of lady const. Ranjita. Thereafter, he went to Kucha Chalan at STD Booth of Aziz Ahmed and recorded statements of Irfan and Qasim. He then went to House No. 1593 at Ahuja STD, Kucha Dakhni Rai, where he met Sh. Krishan Ahuja and seized copy of telephone bill (Mark B) as proof of installation of phone number 23258669 seized vide memo Ex. PW 18/D. Arrest of accused Subhash @ Nati
94. On 10.08.2004, accused Subhash Nati had surrendered before the court. He along with IO Insp. Raghubir Prasad reached court where IO arrested accused subhash Nati vide memo Ex. PW 55/ A and his personal search was conduced vide memo Ex. PW 55/B. Accused was taken on police remand for one day. He was medically examined. He made disclosure statement Ex. PW 55/ C. Accused Subhash Nati took police party to his house No.1933, State Versus Mahender Nigam and Others 95/177 96 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Adhgarah, Fawarra Chandni Chowk. Where some public persons were requested to join the investigation but they all refused. Accused took the police party to his house on first floor and took out one mobile phone from Box kept in Parchatti (aloft). It was a panasonic GD 92 mobile phone which was seized vide memo Ex. PW 55/D. IO recorded statement of Const. Nagesh. The police party then came back to police station with accused Subhash Nati. IO obtained specimen signature of accused Subhash Nati. Specimen sheets S-12 to S 29 are collectively Ex. PW 69/Y These specimen sheets along with questioned slip mark 68/A were deposited by him at FSL Rohini on 24.08.2004. He also collected result of comparison of slip mark 68/ A from FSL and handed over the same to the IO on the same day. The report pertained to accused Mahesh is Ex. PW 65/C.
95. PW 69 SI Sudhir Kumar further deposed that the currency notes recovered at the instance of accused Javed amounting to Rs. 1,18,000/- are collectively Ex. PA and the blue coloured polythene bag is Ex. PB. The currency notes recovered at the instance of Abrar are Ex. P2/1 to 96, P3/1 to 8 and newspaper is Ex. P4, polythene bag is Ex. P5, the fire arm recovered at the instance of accused Javed is Ex.P1. Three mobile phones recovered at the instance of accused Nadir is Ex. PX4, PX 5 and Ex. PX 6, the mobile chips are Ex. PX7/1-2. The currency notes recovered at the instances of accused Nadir are Ex. PX 2 and the black coloured polythene is Ex. PX 3, the motorcycle No.DL 4 SH 0847 is Ex. PX1.
State Versus Mahender Nigam and Others 96/177 97 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC The fire arm recovered at the instance of accused Mahesh is Ex. PX 1. The four mobile phones recovered at the instance of Mahender Nigam are Ex. P7 to Ex. P10. The mobile phone recovered from the accused Subhash is Ex. PZ1. The shirt of cream colour and blue and red colour recovered at the instance of accused Javed are Ex. PZ 2 and PZ 3. The mobile phone recovered during personal search of accused Nadir and Mahender Nigam are Ex. PZ 4 and PZ 5.
96. PW 64 Sh. S.K. Gautam, the then ACMM, Tis Hazari Courts, Delhi deposed that on 15.05.2004, he was working as first link Magistrate for the court of Sh. A.K. Kuhar, MM. The proceedings of this case was pending in the court of Sh. A.K. Kuhar being Link MM to Sh. Alok Aggarwal, MM. On 15.05.2004, Sh.A.K . Kuhar was on leave and the proceedings of this case was placed before him. Two accused namely Mahender Nigam and Mahesh were produced before him in police custody for taking of their voice sample. He has proved the proceedings conducted by him as Ex. PW 64/A. Both the accused refused to give their voice sample and their statement recorded in this regard are Ex.PW 64/B and Ex. PW64/C. He has proved the certificate regarding the true account of the proceedings as Ex. PW64/D.
97. Sh. A.K. Kuhar, the then ACMM was examined as PW 66. He deposed that on 14.05.2004 he was posted as Metropolitan Magistrate, Tis Hazari Courts, Delhi and was working as Link MM for Sh. Alok Aggarwal, the then learned MM. The proceedings State Versus Mahender Nigam and Others 97/177 98 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC regarding taking of voice sample of accused Mahender Nigam and Mahesh were dealt with by him and the said proceedings are Ex. PW 66/ A. PW 6 further testified that on 21.09.2004 accused Subhash @ Nati was produced before him for taking his voice sample. Accused Subhah @ Nath refused to give his voice sample. He proved the aforesaid proceedings as Ex. PW 66/ B. PW 66 recorded the statement regarding the refusal after giving warning to the accused Subhash that his refusal shall be read against him during trial.
VERSIONS OF ACCUSED PERSONS
98. After conclusion of prosecution evidence running into 627 typed pages, accused persons were examined u/s 313 Cr.P.C wherein they denied the case of prosecution in toto and stated that they have been falsely implicated in this case. Except accused Nadir, none of the accused persons opted to lead any defence evidence. Statements of accused were recorded in 760 typed pages.
99. In his defence, accused Nadir examined his maternal uncle Abdul Rehman as DW 1 who testified that accused Nadir is his maternal nephew. On 23.03.2004, he produced Nadir in police station Lahori Gate at about 12.00 noon and at that time Insp. Raja Ram, SI Nitesh Kumar and beat officer Const. Ashok Kumar Yadav were present. Thereafter, they informed Police Station Darya Ganj and accused Nadir was taken to PS Darya Ganj where younger brother of accused Nadir namely Nasir had been made to sit in the PS Darya Ganj since the previous day. He further testified that it was State Versus Mahender Nigam and Others 98/177 99 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC only after production of accused Nadir that his brother was released. The house of accused Nadir is situated 10-15 feet away from his house and is a kachha construction having tin shed and no cemented floor. No recovery was effected in his presence from the house of accused Nadir.
100.During his cross examination by the learned Special PP for the State, DW 1 admitted to have not disclosed these facts to any authority or having filed any complaint regarding false implication of accused Nadir.
APPRECIATION OF EVIDENCE
101.The law relating to criminal conspiracy has been very aptly discussed in the judgments relied upon by learned Special Public Prosecutor for the State titled as RAM NARAIN POPLI VERSUS CBI reported as (2003) 3 SCC 641 and FIROZUDDIN BASHEERUDDIN AND OTHERS VERSUS STATE OF KERELA reported as (2001) 7 SCC 596.
It was observed in RAM NARAYAN POPLI vs. CBI (Pasayat. J.) (2003) 3 SCC :
"It would be appropriate to deal with the question of conspiracy. Section 120-B IPC is the provision which provides for punishment for criminal conspiracy. Definition of "criminal conspiracy" given in Section 120-A reads as follows:
"120-A . When two ore more persons agree to do, or cause to be done-
State Versus Mahender Nigam and Others 99/177 100 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
The elements of a criminal conspiracy have been sated to be (a) an object to be accomplished , (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this , it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished , in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members whenever and wherever any member of the conspiracy acts in furtherance of the common design. (see American Jurisprudence, Vol. II, Section 23 p.559). For an offence punishable U/s 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the State Versus Mahender Nigam and Others 100/177 101 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC intention of two or more , but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only , it is not indictable. When two agree to carry it into effect , the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enfroced , if lawful , punishable if for a criminal object or use of criminal means.
No doubt, in the case of conspiracy there can not be any direct evidence. The ingredients of offence are that there should be an agreement between who are alleged to conspire and the said agreement for doing illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do so an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, an it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before , during and after the occurrence have to be considered to decide about the complicity of the accused.
In Halsbury's Laws of England (vide 4th Edition. Vol.11 p.44, para 58), the English law as to conspiracy has been stated thus"
"Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court."
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be expressed or implied , or in the part or in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists , i.e. until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The actus reus in a conspiracy is the agreement to execute the illegal act (conduct), not the execution of it. It is not State Versus Mahender Nigam and Others 101/177 102 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not however, necessary that each conspirator should have been in communication with every other.
It was held that the expression " in reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope that then words " in furtherance of " in the English law; with the result, anything said, done or written by a co- conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only.
"...'as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a part to it'.......In short, the section can be analysed as follows; (1)There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-
conspirator and not in his favour." (AIR p.687, para 8).
We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in VC.Shukla v. State (Delhi Admn) held that to prove criminal conspiracy, agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by State Versus Mahender Nigam and Others 102/177 103 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purpose of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
The provisions of Sections 120-A and 120-B have brought the law of conspiracy in India in line with the English law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English law on this matter is well settled. Russell on Crime (12th Edn. Vol. I., p.202) may be usefully noted:
State Versus Mahender Nigam and Others 103/177 104 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties, agreement is essential. Mere knowledge, or even discussion, of the plant is not, per se, enough".
"Conspiracy can be proved by circumstances and other materials." (See STATE OF BIHAR V. PARAMHAS YADAV).
"To establish a charge of conspiracy knowledge about the indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use." (See STATE OF MAHARASHTRA V. SOM NATH THAPA, SCC P. 668, PARA 24).
It was noticed that sections 120-A and 120B IPC have brought the law of conspiracy in India in line with the English law by making an overt act inessential when the conspiracy is to commit any punishable offence. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not tender them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the State Versus Mahender Nigam and Others 104/177 105 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence, whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120B of the Indian Penal Code.
I may usefully refer to AJAY AGGARWAL VS. UNION OF INDIA. It was held: (SCC p. 617, paras 8-9) "...It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they whould agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished . It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones case that an indictment for conspiracy must 'charge a conspiracy to do an unlawful act by unlawful means' and was elaborated by Willies, J. on behalf of the Judges while referring the question to the House of Lords in MULCAHY VS. R. and the House of Lords in unanimous decision reiterated in QUINN VS. LEATHEM.
'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do lawful act unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; and punishable if for a criminal object, or for the use of the criminal means.' After referring to some judgments of the United States Supreme Court and of this Court in YASH PAL MITTAL VS. STATE OF PUNJAB AND AJAY AGGARWAL V. UNION OF INDIA the Court in STATE OF MAHARASHTRA VS. SOM NATH THAPA summarized State Versus Mahender Nigam and Others 105/177 106 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC the position of law and the requirement to establish the charge of conspiracy, as under: (SCC p. 668, para 24) "The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use." ( see State of Kerala Vs. P. Sugathan (SCC p.212, para 14) In case FIROZUDDIN BASHEERUDDIN vs. STATE OF KERALA (2001) 7 SCC it is observed:
Section 120-B which prescribes in sub-section (1) the punishment for criminal conspiracy, provides:
"120-B. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,imprisonment for life or rigorous imprisonment for a terms of two years or upwards, shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."
Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a a crime. All conspirators are liable for crimes State Versus Mahender Nigam and Others 106/177 107 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offence, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of cooperation between the accused. What people is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with other that together they would accomplish the unlawful object of the conspiracy.
Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy - who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objective of the conspiracy. No matter who diverse the goals of a large criminal organisation, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast.
Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, State Versus Mahender Nigam and Others 107/177 108 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC in conspiracy prosecution, any declaration by one conspirator made in furtherance of the conspiracy and during its pendency, is admissible against each co- conspirators. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecution. Explaining this rule, Judge Hand said:
"such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end , they become ad-hoc agents for one another and have made ' a partnership in crime'. What wonders pursuant to their common purpose, all do, and as declarations may be such acts they are competent against all. ( VAN RIPER VS. UNITED STATES)."
Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their conferrers.
Interpreting the provisions in Section 120A and 120B IPC, this Court in the case of YASHPAL MITTAL VS. STATE OF PUNJAB in para 9 at pp. 543 and 544, made the following observations:
"The offence of criminal conspiracy U/s 120A is a distinct offence introduced for the first time in Chapter V-A, of the Penal Code. The very agreement , concert or leagueis the ingredient of the offence. It is not necessary that all the conspirators must know each and every details of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of action with one object to achieve the real and of which every collaborator must be aware and in which each one of them must be interest. There must e unity of the object or purpose but there maybe plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted an illegal done. Must be and purported to be in furtherance of the object of the conspiracy. Even though there may be sometime State Versus Mahender Nigam and Others 108/177 109 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators witout the knowledge of others, it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of the criminal conspiracy U/s 120A is brought out pithily by the Court in MAJOR E.G. BARSAY VS. STATE OF BOMBAY thus:
'The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts,and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.' We are in respectful agreement with the above observations with regard to the offence of criminal conspiracy."
It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or ore persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.
102. It is no secret and now well settled that the conspiracies are hatched in darkness and executed in secrecy. It has been held in a State Versus Mahender Nigam and Others 109/177 110 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC catena of decisions that the Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however, doing so, it must be borne in mind that the meeting of the mind is essential ; mere knowledge or discussion would not be.
103.Conspiracy is defined in Section 120 A of the IPC as follows:-
120 A- Definition of Criminal Conspiracy- When two or more persons agree to do, or cause to be done-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated as a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance there of. Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.
An offence of conspiracy which is a separate and distinct offence, thus, would require involvement of more than one person.
Criminal conspiracy is the independent offence, it is punishable separately; it's ingredients being;
(i) an agreement between two or more persons
(ii) the agreement must relate to doing or causing to be done either (a) an illegal act ; (b) an act which is not illegal in itself but is done by illegal means.
State Versus Mahender Nigam and Others 110/177 111 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC In Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra reported as 2008 (6) Scale 469, Division Bench of the Hon'ble Apex Court observed that :
"Thus it is manifest that a meeting of mind of two or more persons for doing an illegal act or an act by illegal means is sine qua none of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place to the illegal agreement."
104.It was observed in STATE VERSUS MOHD. AFZAL AND OTHERS reported as 2003 VII AD (DELHI)1 that "proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason, Section 10 of the Indian Evidence Act was enacted. It reads as under:-
Section 10- Things said or done by conspirator in reference to common design Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.".
State Versus Mahender Nigam and Others 111/177 112 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Thus, the substantive section of the IPC i.e Section 120 A adumbrated thereon Section 10 of the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof.
Section 10 of the Evidence could be divided into two parts. Para 1 refers to the existence of reasonable grounds to form a belief that two or more persons have conspired and the second part would come into operation when the condition of the first part is satisfied and makes relevant anything said, done or written by the conspirators as a relevant fact against co-conspirators. In AIR 1965 SC 682 Sardar Sardul Singh Kava Sher V State of Maharashtra, the Hon'ble Supreme Court held that the evidentiary value of the act, deed, or writing referred to in Section 10 of the Evidence Act is limited by two circumstances, namely that the acts shall be in reference to the common intention, and in respect of a period after such intention was entertained by anyone of them. In almost all cases of conspiracy, the following passage by Coleridge, J., in R. Murphy 173 ER 502 is quoted as laying the root of the concept of conspiracy and we may be failing in our duty if we do not note the same:-
"I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have their common design and to pursue it by common means, and so to carry it into execution. This is not necessary because in many cases of most clearly established conspiracies there are no means of providing any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts, the same object, often by the same means, one performing one part of an act, so as to complete it, with : a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, " Had they State Versus Mahender Nigam and Others 112/177 113 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC this common design, and did they pursue it by these common means the design being unlawful?"
105. Sh. Rajeev Mohan, learned Special Public Prosecutor for the State, to establish criminal conspiracy to murder Yogesh @ Babli between accused persons namely Mahender Nigam, Mahesh, Rakesh, Subhash @Nati, Nadir, Javed and Sayed Abrar, very heavily relied upon the call detail records of the mobiles and landline numbers used before, during and after the murder of Yogesh @ Babli. To prove the call detail records, learned Special PP for the State very heavily relied upon the case titled as STATE VERSUS NAVJOT SANDHU @AFSAN GURU with STATE VERSUS SAYED ABDUL REHMAN GILANI with SHAUKAT HUSSAIN GURU VERSUS STATE with MOHD. AFZAL VERSUS STATE reported as 2005 (3) JCC 1404 wherein it was observed that " According to Section 63 Indian Evidence Act, secondary evidence means and includes, among other things, "copies made from the original by mechanical process which in themselves ensures the accuracy of the copy, and copies compared with such copies. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which can not be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, print outs taken from the computers / servers by mechanical process and certified by responsible officials of the service providing company can be led State Versus Mahender Nigam and Others 113/177 114 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC into evidence through a witness who can identify the signatures of the certifying officers or otherwise speaks to the fact based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65 B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act namely 63 and 65. It may be that the certificate containing the details in sub section 4 of Section 65 B is not filed in the instant case, but that does not mean that secondary evidence can not be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provision namely Sections 63 and 65".
106.I am afraid that in view of the latest judgment of the Hon'ble Supreme Court rendered in ANVAR P.V VERSUS P.K. BASHEER reported as 2014 SCC ONLINE SC 732, the law laid down in the aforesaid judgment of STATE VERSUS NAVJOT SANDHU no longer holds good. In ANVAR P.V. CASE , it has been held by Full Bench that;
" The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears the court omitted to take note of Section 59 and 65 A dealing with the admissibility of electronic record. Section 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65 A and 65 B. To that State Versus Mahender Nigam and Others 114/177 115 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc. the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which the secondary evidence pertaining to that electronic record, is admissible".
Meaning thereby to prove any electronic record/print outs/CD/VCD/Chips etc it is imperative that a certificate u/s 65B from a responsible officer containing all the necessary particulars has to be necessarily filed coupled with the electronic record. Neither the certificate u/s 65B of the Indian Evidence Act can filed subsequent to the filing of the electronic record nor the certificate of Nodal Officer u/s 65B would be acceptable. Any contravention to these conditions would make the electronic record in admissible in evidence."
107.In the instant case, neither conditions have been fulfilled, hence the call detail records will have to be completely ignored while arriving at a conclusion regarding the roles of the accused persons in the criminal conspiracy to commit murder of Yogesh @ Babli.
108.Now, I will proceed to scan the evidence on record in the light of the aforesaid settled law.
JAVED
109.On careful scrutiny of the evidence adduced by the prosecution, it clearly emerges that at about 11.00 AM on 25.02.2004, PW 27 Sheikh Mohd. Qasim while talking to the shopkeeper of an electric State Versus Mahender Nigam and Others 115/177 116 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC shop at Gali Nanhe Khan heard the sound of gun shot fire and saw one person lying on the road and another firing second round on that person. The person who had fired was wearing a helmet and escaped after firing the second shot. PW 27 immediately made a call to the police and to his employer Aziz Bhai informing them of the incident. Since, the victim Yogesh Sharma @ Babli Bhai was known to PW-27, he informed the employees of the deceased as well. On receipt of this information (DD No.12/A/Ex.PW3/B) relating to inflicting of gun shot injury to a person behind Moti Mahal ,Gali Nanhe Khan, Darya Ganj, PW 68 SI Rajesh Malhotra along with HC Ajeet Singh (PW 37) and Const. Mahinder reached the spot where they saw the dead body of Yogesh Sharma @Babli lying outside the house no.2724 at Gali Moti Mahal, Gali Nanhe Khan, T Point. PW 17 Insp. Dharamvir Joshi, SHO PS Darya Ganj along with other police officials also reached the spot. The deceased was identified as Yogesh Sharma @ Babli by Ajit, the landlord of deceased Yogesh Sharma@ Babli. The brothers of the deceased namely Rakesh Sharma (PW12) and Mukesh Sharma (PW13) also arrived at the spot and they too identified the dead body of Yogesh Sharma. Upon inspection of the dead body, it was revealed that the body was having two gun shot injuries;
(i) on the front side of abdomen just above naval about 2 inches on the right side
(ii)on the back side about 9 inch below the right shoulder and 1 inch towards the right side of the back bone.
State Versus Mahender Nigam and Others 116/177 117 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
110.Blood was also found lying on the ground under the dead body. PW 68 SI Rajesh Malhotra prepared the rukka and got the FIR registered through PW 37 HC Ajeet Singh. ASI Shashi Gupta (PW3) recorded the FIR and the investigation was assigned to PW 70 Insp.Dharamvir Joshi. The crime team comprising of PW-43 SI Heera Lal, PW 11 Const.Vinod /Photographer along with other staff also reached the spot and conducted its proceedings. Personal search of the deceased was also conducted from which mobile phone with mobile connection number 9811131414 with IMEI No. 35072---829 amongst other personal items was recovered. After getting the post mortem conducted , the body of deceased Yogesh Sharma @ Babli was handed over to his brothers PW 12 and PW
13. PW 10 Dr. Mukta Rani who conducted the post mortem opined that both the injuries were entry woundS of fire arm injuries. She also opined that the death of deceased Yogesh Sharma was caused due to haemorrhage and shock as a result of the injuries to liver and lungs via injury numbers 1 and 2 (fire arm injuries). Both the injuries were opined to be sufficient in ordinary course of nature to cause death individually as well as collectively. All the injuries were found to be ante mortem , recent and produced by the projectile riffle fire arms ammunition fired from a closed range. PW 10 Dr.Mukta Rani while conducting the post mortem also examined the shirt and the vest worn by the deceased Yogesh Sharma at the time of his death having corresponding holes and gun powder residues. The cut on these clothes were corresponding to the injuries on the body. Two bullets State Versus Mahender Nigam and Others 117/177 118 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC were also recovered from the body of the deceased. After the post mortem, clothes, shoes, both the bullets and blood sample were sealed in parcels and sealed with the seal of MAMC which were handed over to PW 70/IO/Insp.Dharamvir Joshi vide seizure memo Ex.PW68/B, Ex.PW68/C and Ex. PW68/D. All the articles were then deposited in the malkhana in sealed condition and MHC(M) PW 17 HC Mahesh Kumar made relevant entries (Ex.PW17/A) in this regard.
111.Thereafter, search of the office and residence of the deceased Yogesh Sharma was conducted. On 20.03.2004, during investigation, it was revealed that the deceased was working in partnership with accused Mahender Nigam and others. On 15.03.2004, five sealed parcels (three sealed with the seal of MAMC and two sealed with the seal of DVJ) were sent to FSL, Rohini through PW16 Const. Harcharan which were examined by PW 30 Sh.A.K.Srivastava, Sr. Scientific Officer, FSL who prepared his report Ex.PW30/A and Ex.PW30/B dated 15.04.2004 as per which the blood group found on the stained bullets (Ex.3A and Ex. 3B) recovered from the body of the deceased matched with the blood found on the clothes of the deceased (Ex.5A to Ex.5G). After the examination by FSL, the bullets EX.3A and 3B and the clothes of the deceased were retained in the FSL whereas the remaining parcels sealed with the seal of AKS, FSL Delhi were returned to the PS along with the result Ex.PW30/A and Ex.PW30/B. State Versus Mahender Nigam and Others 118/177 119 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
112.On 20.03.2004, on the basis of a secret information that one of the accused namely Javed who was involved in the murder of deceased Yogesh Sharma @ Babli was present at Subhash Park, Jama Masjid, the police party comprising of PW 70 Insp. Dharamvir Joshi, PW69 SI Sudhir, PW68 SI Rajesh Malhotra,PW 63 Const. Sudhir, PW 57 HC Jitender and PW 56 Const.Pawan reached Subhash Park along with the secret informer. Accused Javed was then apprehended at the pointing of the secret informer. Accused Javed was arrested vide arrest memo Ex.PW68/F and during his personal search, one slip marked 68/A on which Umesh @ Bankey, 9811101020, 56035758 was written, seized vide seizure memo Ex.PW68/H-I, one mobile phone having number 56087574 was recovered. Accused Javed was interrogated, who upon interrogation gave his disclosure statement Ex.PW68/J. In his disclosure statement, he disclosed that the two fire arms and ammunitions used in the murder of Yogesh@Babli were purchased from Hapur, UP. Accused Javed also disclosed the names of other accused persons involved in the conspiracy of murder of Yogesh @ Babli in his disclosure statement and also revealed that co- conspirators namely Abrar was using using mobile phone number 56141033, accused Mahesh was using mobile number 9818662979, accused Nadir was using 9899335040. He also disclosed that on 24.02.2004 accused Mahesh had given two mobile chips, out of which accused Nadir inserted one chip bearing number 9899656654 in mobile instrument make Sony Ericsson and handed over this set with SIM Card 9899656654 to State Versus Mahender Nigam and Others 119/177 120 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC him. He also disclosed that accused Nadir had provided motorcycle bearing registration no.DL 1SM 3957 which was used while committing the murder of Yogesh @ Babli. He further disclosed that he was using mobile phone no.56087574 to communicate with co-conspirators. He also admitted that for committing murder of Yogesh @Babli, he, Abrar and Nadir had received money. Accordingly, he led the police party to House No.1816, Gali Chabuk Sanwar, Lal Kuan belonging to PW-2 Ameen Ahmed and got recovered one blue colour polythene bag containing currency notes amounting to Rs.1.18 lacs. The polythene bag containing the currency notes was kept in a card box and after converting the same into a pulanda sealed with the seal of DVJ and seized vide seizure memo Ex.PW2/A. The entire information regarding the mobile numbers/phone numbers revealed by accused Javed in his disclosure statement was conveyed by PW70 Insp. Dharamvir Joshi to PW61 Insp. Rakesh Giri. The investigation relating to the mobile numbers revealed by accused Javed and the mobile numbers and phone numbers of the associates of deceased Yogesh @ Babli in his construction business was assigned to PW 61 Insp. Rakesh Giri, who put the same on surveillance on the basis of the orders of the competent authorities. On the day of his arrest on 20.03.2004, accused Javed on the basis of his disclosure statement, led the police party to House No. 26/3, Kucha Chalan where the accused Abrar was found standing . He was arrested vide arrest memo Ex.PW9/B and his personal search was conducted vide personal search memo Ex. PW9/C. From the State Versus Mahender Nigam and Others 120/177 121 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC personal search of accused Abrar, one mobile phone bearing no. 56141003 was recovered. Accused Abrar was interrogated and on the basis of his disclosure statement Ex.PW9/ A , he led the police party to his residential house i.e house no. 2613, Kucha Chalan, Chandni Mahal, Delhi from where he got recovered Rs.88,000/- out of Rs. 90,000/- which he received for the murder of Yogesh @ Babli, wrapped in a newspaper. The said amount was sealed with the seal of DVJ and seized vide seizure memo Ex. PW9/D.
113.Accused Javed in his disclosure statement Ex. PW68/L recorded on 22.03.2004 disclosed that after committing murder, he had given one fire arm to Nadir and the other was kept by him in a jhuggi at Kanchan Puri Power House, Rajghat in an iron box. Accused Javed on 22.03.2004 in pursuance of his disclosure statement led the police party to Jhuggi no. I-85, Kanchan Puri, Rajghat Power House from where he got recovered one countrymade fire arm concealed underneath the clothes from an iron box. The sketch (Ex.PW9/B) was prepared and it was sealed with the seal of DVJ and seized vide seizure memo Ex. PW9/F.
114.At the time of arrest of accused Javed, PW 70 Insp.Dharamvir Joshi observed a burnt injury mark on the upper portion of left thigh of accused Javed. Accordingly, on 21.03.2004 accused Javed was sent for medical examination vide request letter Ex. PW 69/A to examine the burn mark on the left thigh of accused Javed and seeking opinion regarding the age of the injury and if it could have been caused by barrel of a fire arm. In pursuance to Ex. PW 69/A, State Versus Mahender Nigam and Others 121/177 122 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC accused Javed was examined by PW 8 Dr. Rohit vide MLC Ex. PW 8/A on 23.03.2004. On 24.03.2004 the sealed parcel containing the country made fire arm recovered at the instance of accused Javed was also sent to PW-8 Dr. Rohit for opinion. After examining the weapon and the injury on accused Javed, he opined that the possibility of injury being caused by the tip of barrel of given fire arm (Ex.P1) can not be ruled out. He also opined the injury to be more than 2 weeks in duration.
115. During interrogation on 01.04.2004, accused Javed in his disclosure statement (Ex.PW56/B) had also disclosed that accused Mahesh had given him Rs.10,000/- to purchase two fire arms and ammunitions which he had purchased from Naim and Faimuddin, Village Vadli,District Hapur, Ghaziabad UP for Rs.4,000/-. In pursuance to the disclosure statement Ex. PW56/B regarding the purchase of the fire arms from Naimand Faimuddin , PW 41 SI Lekh Raj went to Hapur, Ghaziabad where he found that in the area of PS Babugarh, a factory manufacturing illegal arms and ammunitions had been running by Faimuddin and Naim. When the matter was enquired from PS Babugarh, it was informed by PW 62, SI Veer Singh that on 10.03.2004, he had conducted a raid in the area of Village Vadli in the house of Naim and Faimuddin, both brothers and from their house, a manufacturing unit of arms and ammunitions along with manufactured arms and ammunitions were recovered. Both the brothers were apprehended while in the process of manufacturing illegal arms. In connection with this State Versus Mahender Nigam and Others 122/177 123 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC recovery, an FIR bearing no.43/2004 (Mark A) was registered at PS Babugarh Chhawni District. PW 7 HC Chattar Singh proved the original entry Ex.PW7/B dated 10.03.2004 regarding lodging of FIR.
116.As already mentioned the bullets recovered from the body of deceased Yogesh @ Babli sealed with the seal of Department of Forensic Medicine, MAMC were much before the arrest of Javed deposited at FSL ,Rohini on 15.03.2004 which were examined by the Biology Division and further forwarded to Ballistic Division of FSL, Rohini in sealed condition sealed with the seal of AKS FSL Delhi. The country made pistol (Ex.P1) recovered on 22.03.2004 at the instance of accused Javed who was arrested on 20.03.2004 and which was sealed with the seal of Department of Forensic Medicine, MAMC and the country made pistol recovered at the instance of accused Mahesh on 31.03.2004 were deposited at FSL, Rohini Ballistic Division on 15.04.2004. All the four exhibits (two bullets recovered from the body of the deceased Yogesh and the fire arms recovered at the instance of accused Javed and Mahesh) were assigned to PW 32 Puneet Puri, Sr. Scientific Assistant (Ballistic) Government Forensic Delhi . The clothes of the deceased containing holes of bullet entries were also forwarded to PW32 Puneet Puri who examined all the articles received by him and he vide reports (Ex.PW32/A and Ex. PW32/B) opined that both the fire arms were the fire arms as defined under the Arms Act and were in working order. He also opined that one bullet recovered from the body of the deceased was fired from the fire State Versus Mahender Nigam and Others 123/177 124 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC arm alleged to have been recovered at the instance of accused Javed whereas other bullet recovered from the body was fired from the fire arm allegedly recovered at the instance of accused Mahesh. The hole marks on the clothes were also found corresponding to the bullets recovered from the body.
117.It is thus established that accused Javed was the shooter of Yogesh Sharma @ Babli. In arriving at the said finding, the following evidences are taken into consideration;
(i)Arrest of accused Javed on 20.03.2004
(ii)Recovery of a paper slip on which Umesh @Bankey,(partner of deceased Yogesh Sharma @ Babli),9811101020, 56035758 Laxmi Nagar was written from accused Javed to misguide investigation.
(iii)Recovery of fire arm from jhuggi at Kanchan Puri Power House, Rajghat at the instance of accused Javed
(iv)Burnt injury mark on the upper portion of left thigh of accused Javed
(v)Opinion of Dr. Rohit (PW8) that possibility of injury on the person of accused Javed being caused by the tip of barrel of the fire arm recovered at the instance of accused Javed can not be ruled out and that the injury was more than two weeks in duration.
State Versus Mahender Nigam and Others 124/177 125 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
(vi)Disclosure statement of accused Javed dated 01.04.2004 wherein he disclosed that he had purchased the two fire arms and ammunition used in the commission of murder of Yogesh @ Babli from Naim and Faimuddin, Village Vadli District Hapur, Ghaziabad UP.
(vii)Discovery of the factory in the area of PS Babugarh, Hapur , Ghaziabad, UP manufacturing illegal arms and ammunitions running by Faimuddin and Naim.
(viii)Expert opinion of PW 32 Puneet Puri, Senior Scientific Officer (Ballistic Division) that the bullets recovered from the body of Yogesh @ Babli on 25.02.2004 and received in FSL on 15.03.2004 much before the arrest of accused Javed were fired from the fire arm recovered at the instance of accused Javed on 22.03.2004 and accused Mahesh on 31.03.2004 which were received in the FSL on 15.04.2004.
118. In my opinion, when all the aforesaid circumstances are taken together, it forms a chain so complete that one can not take a view other than that the murder of Yogesh @ Babli was committed by the accused Javed with the help of both the country made pistols Ex. P1 and PX1 in prosecution of the conspiracy in which accused Javed was a participant being a hired shooter . It is worth noting that accused Javed neither had friendship nor enmity with the deceased who was not even known to him. It is thus to be inferred State Versus Mahender Nigam and Others 125/177 126 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC that he was only hired shooter hired by his other co-conspirators for money.
119.It was very vehemently argued by learned counsel for the accused Javed that as per the opinion given by PW-10 Dr. Mukta Rani, the injuries on the body of Yogesh @ Babli were ante mortem , recent and produced by projectile of riffled fire arm ammunition fired from a close range. Since PW 10 had admitted that the gun shot injury to deceased Yogesh @Babli was caused by a riffled arm and the fire arm which was recovered at the instance of accused Javed was a katta , hence the prosecution has failed to co-relate the gun shot injury with the fire arm recovered at the instance of accused Javed. For this reason itself, no role can be assigned to accused Javed in the conspiracy of murder of Yogesh @ Babli as the shooter.
120.The argument of the learned counsel for the accused Javed has to be outrightly rejected as PW 10 Dr. Mukta Rani had only conducted the post mortem on the dead body of Yogesh Sharma @ Babli and was not an expert of fire arms who could have given any opinion with respect to the fire arms used to shoot Yogesh @ Babli. PW 32 Puneet Puri, Senior Scientific Assistant (Ballistic), FSL, Rohini was the expert in the Ballistic Division who was examined by the prosecution and to whom the fire arms and the bullets recovered from the body of Yogesh @ Babli were sent. He categorically testified and opined that the holes found on the clothes worn by the deceased corresponded with the discharge through fire arm State Versus Mahender Nigam and Others 126/177 127 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC recovered at the instance of accused Javed. He had also opined as already discussed above that one bullet recovered from the body of deceased was fired from the fire arm recovered at the instance of accused Javed.
SAYED ABRAR
121. Accused Sayed Abrar was arrested on 20.03.2004 at the instance of accused Javed from out side House No. 26/3, Kucha Chalan where the accused Abrar was found standing . He was arrested vide arrest memo Ex.PW9/B and his personal search was conducted vide personal search memo Ex. PW9/C. From the personal search of accused Abrar, one mobile phone bearing no. 56141003 was recovered. Accused Abrar was interrogated and on the basis of his disclosure statement Ex.PW9/ A , he led the police party to his residential house i.e house no. 2613, Kucha Chalan, Chandni Mahal, Delhi from where he got recovered Rs.88,000/- out of Rs. 90,000/- which he had received for the murder of Yogesh @ Babli, wrapped in a newspaper. The said amount was sealed with the seal of DVJ and seized vide seizure memo Ex. PW9/D.
122.Admittedly, PW 27 Sheikh Mohd. Qasim had only seen one shooter firing at Yogesh @ Babli, accused Abrar was neither seen at the spot nor seen escaping on the motorcycle with accused Javed as pillion rider. The recovery of the money at the instance of accused Abrar can not lead to only conclusion that it was the State Versus Mahender Nigam and Others 127/177 128 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC blood money received from the other conspirators to play a constructive role in the conspiracy of murder of Yogesh @ Babli as evidence based on call records of mobile used by him before or soon after the incident has to be rejected as inadmissible.
123.The argument that accused Sayed Abrar acted at the behest of accused Javed to be a participant in the conspiracy thus finds no support, either from the evidence on record or from any other circumstance. As per the case of the prosecution , he had driven accused Javed on motorcycle No. DL1SM 3957 to the place of incident and had escaped with accused Javed after the incident on this motorcycle. In this connection, even PW27 Sheikh Mohd. Qasim was silent that the assailant shooter had escaped as a pillion rider on a motorcycle after firing two shots on Yogesh @ Babli on 25.02.2014. Therefore, in my considered opinion prosecution has failed to establish his role in the conspiracy and so he deserves benefit of doubt.
124.During the investigation, on the basis of a secret information ,police party comprising of PW 70 Inspector Dharamvir Joshi, PW 69 SI Sudhir, PW 68 SI Rajesh Malhotra, PW 56 Const. Pawan, PW 63 Const Sudhir with accused Javed, Abrar and secret informer arrested accused Nadir vide arrest memo (Ex.PW68/M) on 23.03.2004 from the area of Vijay Park, Mauzpur side.At the time of arrest, accused Nadir was driving a motorcycle bearing registration no. DL 1SM 3957 which was seized vide seizure memo Ex.PW68/O. Personal search of accused Nadir was conducted State Versus Mahender Nigam and Others 128/177 129 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC during which one mobile phone make Motorola having no. 560874464 was recovered. The case property , personal search items of accused Nadir and the motorcycle bearing registration no.DL1SM 3957 Yamaha RX 100 Black colour was deposited in the malkhana vide entry Ex.PW 17/E. Accused Nadir was interrogated and his disclosure statement Ex.PW57/C was recorded. In his disclosure statement, he revealed that the actual registration number of the motorcycle bearing number plate DL1SM 3957 which was found in his possession at the time of his arrest was DL 7SB 9500. He also disclosed that after the incident i.e. murder of Yogesh @ Babli , Javed had returned one fire arm to him which he further gave to accused Mahesh . At this stage, it is to be mentioned that country made pistol was recovered at the instance of accused Mahesh from his house on 31.03.2004 and was proved to have been used in the murder of Yogesh @ Babli by Ballistic Expert. Vide Ex.PW57/C, accused Nadir further disclosed that for arranging the murder of Yogesh @ Babli, he had received Rs.3 lacs from Mahesh, out of which he gave Rs.1.20 lacs to accused Javed and Rs.90,000/- to accused Abrar. On the basis of this disclosure statement, accused Nadir led the police party comprising of PW 69 SI Sudhir, PW 63 Const Sudhir, PW 57HC Yatinder and PW 14 Umesh to his residence i.e House No. 2404, Gali Rang Wali, Tilak Bazar, Delhi. From the room on the first floor of his residence, he got recovered three mobile phones concealed behind some old clothes from an old rusted cooler which were used during the murder, seized vide seizure memo Ex.PW14/A. He State Versus Mahender Nigam and Others 129/177 130 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC also got recovered two mobile phone chips from the slit in between the wall and the door frame seized vide seizure memo Ex.PW14/B. Thereafter, he removed the bricks kept under the right leg of the bed towards head side and produced one black coloured polythene containing currency notes of Rs.1,20,000/- which were seized vide seizure memo Ex.PW14/C. He also got recovered one motorcycle bearing registration no. DL4SH-0847 make Yamaha which he had purchased for a sum of Rs.15,000/- out of the money received by him from a place near Delhi Diesel Petrol Pump, Wazirabad Road, Delhi. All these articles were deposited in malkhana on 25.03.2004 by PW-69 SI Sudhir vide serial no. 1979 in register no. 19. Subsequently, the motorcycle bearing fake number plate DL1SM 3957 bearing chasis and engine no. 002273 was transferred to PS Chandni Mahal from PS Darya Ganj vide RC No.24/21 (Ex.PW17/P) as it was reported stolen by Moin Khan who had got registered FIR No.31/03 PS Chandni Mahal.
125.It has been urged by learned Spl. Public Prosecutor for the State that the accused Nadir was found riding the motorcycle bearing fake number plate bearing registration number DL1SM 3957 which was used during the murder of Yogesh @ Babli and the fact that said number was disclosed by Javed during his interrogation is an important circumstancial evidence against the accused Nadir that he was involved in the criminal conspiracy to murder Yogesh @ Babli.
State Versus Mahender Nigam and Others 130/177 131 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
126.I find no merit in the said argument of the State as prosecution could not establish the fact that the motorcycle bearing fake number plate DL1SM 3957 was used during the commission of murder of Yogesh @ Babli on 25.2.2004. The eye witness , PW27 Sheikh Mohd. Qasim had only seen the shooter wearing helmet firing at Yogesh @ Babli. Nowhere in his eye account did PW27 testify that he had seen accused Javed/the shooter escaping from the spot on any motorcycle, leave alone bearing fake number plate DL1SM 3957 which according to the case of the prosecution was provided by accused Nadir to accused Javed to be used in the commission of murder of Yogesh @ Babli.
127.However, this Court can not lose sight of the fact that after the arrest of accused Nadir , he was thoroughly interrogated and had disclosed that after the incident dated 25.2.2004 i.e. murder of Yogesh @ Babli, accused Javed had returned one of the two fire arms used for shooting Yogesh @ Babli dead which he had given to accused Mahesh for safe custody. The recovery of the 2nd fire arm at the instance of accused Mahesh establishes the fact that accused Nadir had handed over the 2nd fire arm to accused Mahesh after the same was returned by accused Javed. In my view, the discovery of second country made pistol from accused Mahesh at the behest of accused Nadir is a significant incriminating circumstance against accused Nadir which is supported by the judgment titled as Ajayan alias Baby Versus State of Kerela (CRIMINAL APPEAL NOS. 1204 AND 1429 OF 2006 DECIDED State Versus Mahender Nigam and Others 131/177 132 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC ON 7.12.2010) by the Full Bench (MANU/KE/2125/2010) wherein it was held that;
"when accused gave information to police officer that particular object was kept concealed at particular place or given to particular person and either points out that place where from said object was recovered by the police or produced by accused or points out person who produces object, recovery of object confirms truth of information given by accused. Thus, for application of Section 27 of the Indian Evidence Act, it made no difference whether information given was that article was concealed at particular place or that it was given to particular person. Further, Section 27 of the Act did not say that for admissibility of information, authorship of concealment was essential. Expression was used in Section 27 of the Act to limit and define scope of information admissible in evidence. It referred to that part of information supplied by accused which was direct and immediate cause of discovery. Thus authorship of concealment was not sine qua non to make information received from person , accused of an offence while in custody of police officer under Section 27 of the Act. Hence, authorship of concealment was sine qua non for admissibility of statement of accused u/s 27 of the Act, was not correct in law."
128.It also establishes the fact that accused Nadir was known to accused Mahesh and was the fulcrum between accused Mahesh on the one side and accused Javed on the other side also establishes the role of accused Nadir as one of the participants in the criminal conspiracy to eliminate Yogesh @ Babli for earning blood money. The main assailant Javed was known to him alone and was not known to other co-conspirators and was given part of money also establishes his role in the conspiracy.
MAHESH State Versus Mahender Nigam and Others 132/177 133 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
129.During the interrogation of accused Javed, he provided three mobile phone numbers i.e 9811511604, 9818663731 and 9811217262 of accused Mahesh. The CDR of these numbers were obtained and it was observed vide observation memo Ex.PW50/F that mobile instrument bearing IMEI no. 352054003056050 was being used to communicate on these mobile numbers. This IMEI number was kept under observation and it was revealed that mobile number 9818915081 was running on the mobile instrument bearing IMEI No.352054003056050 and a number of calls were made to a mobile no.9871150441 running on mobile instrument bearing IMEI No. 352539009267070.
130.Due permission was sought vide Ex.PW 61/DA from The Additional Deputy Commissioner of Police, Central District Delhi by PW 61 Sh.Rakesh Giri for interception of IMEI No. 352539009267070 (mobile instrument recovered from accused Mahender Nigam), 352054003056050 (mobile instrument recovered from accused Mahesh) and IMEI No.350179875066940 on mobile no.9818130384 belonging to HC Pratap, PW 50 . In his testimony, PW61 Insp. Rakesh Giri stated that IMEI no. 352054003056050 allegedly related to accused Mahesh and IMEI No.352539009267070 allegedly related to accused Mahender Nigam were kept under interception as per the orders of the competent authority on the mobile phone of HC Jasvinder bearing no.9818130494 and on the mobile phone of HC Pratap bearing No. 9818130384. In his cross examination, he testified that the letter State Versus Mahender Nigam and Others 133/177 134 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC addressed to Additional DCP for interception of IMEI No. 352539009267070 was allowed and during those days, Joint Commissioner of Police had temporary powers to allow the request for interception made on the same day for 15 days which was regularized in routine.
131.Subsequently, as testified by PW-61, Principal Secretary (Home), Government of NCT, Delhi allowed and regularized the interception of IMEI number 352539009267070, 352054003056050, 350179875066940 vide Ex.PW46/C on mobile no.9818130384 belonging to PW 50/HC Pratap and mobile phone No.9818130494 belonging to PW..... HC Jasvinder. On 23.03.2004, two calls at 8.40 PM and 9.30 PM were intercepted. The call at 8.40 PM was between accused Mahender Nigam and accused Subhash @ Nati wheres the call at 9.30 PM was between accused Mahesh and accused Mahender Nigam. Another call at 9.17 PM on 24.03.2004 was also intercepted which was also between accused Mahesh and Mahender Nigam. PW 50 HC Pratap and PW 61 Inspector Rakesh Giri recorded the entire conversation by connecting a tape recorder with his mobile phone. The mobile no. 9818130384 was activated only to receive the diverted calls. The transcripts Ex PW61/A, PW 61/B and Ex. PW61/C were accordingly prepared showing the conversation exchanged between accused Mahesh, Mahender Nigam and accused Subhash @ Nati. The text of the transcripts Ex.PW 61/A, Ex.PW 61/B and Ex.PW 61/C translated State Versus Mahender Nigam and Others 134/177 135 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC by me from Hindi to English as far as possible are reproduced herein as under:
132.Through interception of IMEI No. 352539009267070 on 23.03.2004 at about9.30 PM on mobile no.9818130384 accorded vide order No.2586/S.O.DCP/C. Mahesh ...(unclear voice) Mahender Nigam ...Yes. Nadir has been apprehended. He has disclosed your name.
Mahesh ...(unclear voice)
M.Nigam ...Subhash was interrogated by Raja Ram and he
wanted to know about the whereabouts of Mahesh, but then he was left.
Mahesh ...(unclear voice)
M.Nigam ....I have explained to him that in case of apprehension,
disclose the name of Banke instead of Pawan.
Mahesh ..... Dehradoon....(unclear voice)
M.Nigam ......Yes. He know your number.
Mahesh ......(unclear voice)
M.Nigam ... Should I make your arrangement at Kanpur.
Mahesh ... Yes of course ji
State Versus Mahender Nigam and Others 135/177
136 FIR NO. 99/04 PS Darya Ganj
U/s 302/120B IPC
M.Nigam ....I will arrange a rented accommodation, in the
tenanted house, meantime, you manage for two days. you manage for two days.
Mahesh ... if there is own flat
Nigam. ...within a day or two, I will arrange a tenanted house for
you then you stay there comfortably for one month.
Mahesh ......(unclear voice)
M.Nigam ....You are around Kanpur. Are'nt you?
Mahesh ....(unclear voice)
M.Nigam ....... I will try to meet you on my own. I keep visiting
Kanpur.
Mahesh ......(unclear voice)
M .Nigam ....You live comfortably. Rest I will manage. OK
Mahesh .... OK
Through interception of IMEI No. 352539009267070 on 23.03.2004 at about8.40 PM on mobile no.9818130384 accorded vide order No.2586/S.O.DCP/C. .......... Some one has informed Raja Ram M.Nigam Ok ......... Otherwise Raja Ram had no reason to take him.
M.Nigam Yes State Versus Mahender Nigam and Others 136/177 137 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC ........ He kept interrogating throughout and Mukesh Pandit also came there. M.Nigam .....Yes ....... (With him) that Mishthan Bhandar wala had also come.
Some one had informed them about the arrest of the killer, who knows the whereabouts of Mahesh M. Nigam Yes ......... I greeted him but he did not talk to me and they tortured me the whole night.
M.Nigam Ok
........ They tortured me by putting a powder which made me
itch and kept enquiring from me about the whereabouts of Mahesh M.Nigam .......... Now where are you calling from.
...... At present I am at home and calling from Koria Pull.
M.Nigam ............I hope there is no one with you who is known to you. I hope, you have called at the right number. No. will give you a number .Please change the same.
M.Nigam Did You have conversation with Mahesh ...... I forgot to tell you. He has gone to Nepal. I had spoken to him.
M.Nigam I had a talk with Mahesh. He has not gone anywhere.
....... What was he saying? State Versus Mahender Nigam and Others 137/177 138 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC M.Nigam He was saying that he has currency of high denomination which he is trying to convert in small denomination and there
is an issue of terrorists. I had met that boy who will represent Mahesh as Parokar. And he will tell his family members not to name anybody and not to take my name at all and I wanted to talk about Nadir that if possible don't take his name but he has already been apprehended. Somebody has secretly informed police that if you want to know the whereabouts of Mahesh, then pick Subhash.
M.Nigam That means, you were not picked by the officials of Darya Ganj?
Subhash No. Not at all. I was picked up by Raja Ram M.Nigam. Then, now you will also be called by the officials of Darya Ganj Subhash Yes. This is what I want to find out. I am confirmed that officials of PS Darya Ganj will also call me.
M. Nigam Tell me what to do now?
M.Nigam. Now, what to do?
Subhash Even I am asking this, If they will enquire from me, I will
tell them that I do not know Mahesh but at times, he used to visit me at my house.
M.Nigam Did Nadir see your face.?
Subhash No. Tomorrow he might be produced.
M.Nigam I do not know
Subhash Ok, then I will disappear for a day or two
State Versus Mahender Nigam and Others 138/177
139 FIR NO. 99/04 PS Darya Ganj
U/s 302/120B IPC
M.Nigam Yes. You go underground
Subhash Raja Ram released me and told me that he is releasing
me at the behest of Ashok, when ever he says you produce yourself.
M.Nigam You have been apprehended by Ganja.
Subhash In the night, Mukesh Pandit came with Vinod Ganja, Chini also came with them.
M.Nigam Yes. Chini also went to PS.
Subhash Yes I came to know that Chini had accompanied Vinod.
M.Nigam. When did they release you?
Subhash. I came just now. You tell me where should I meet you
tomorrow. You get the setting done otherwise I will talk to my lawyer as he informed me that if I am called through him, they will not torture me.
M.Nigam Ok
Subhash Joshi has not received even a single rupee. For not
raising the name of Mahesh, he is demanding money.
M.Nigam ... But name of Mahesh has already been taken.
Subhash ........ Yes Name of Mahesh is already taken but his brother's name is not there. Only name of Mahesh is there because the name of his brother was taken in my place as the person who used to bring money was brother of Mahesh.
M. Nigam Yes.
State Versus Mahender Nigam and Others 139/177
140 FIR NO. 99/04 PS Darya Ganj
U/s 302/120B IPC
Subhash The name of Mahesh is floating in the market but the PS
officials have not picked him yet. I had spoken to my Lawyer who told me to give something with my own hand or if you could do some setting. Joshi is a wonderful person.
M.Nigam He will not take even a single penny. He is looking for Mahesh. It may be possible that he may not find Mahesh. If you come face to face with Nadir then take the name of Bankey instead of Pawan. Rather than getting tortured,better to take name of Bankey and say that Bankey had given money.
Subhash If they give me severe beatings then I will injure myself by banging myself and I will appear before the court and say that I dont know anything and these people are falsely implicating me.
M.Nigam But if they make you face Nadir, then Nadir will identify you.
Subhash That I know. Then I will have to become a police witness.
M.Nigam Ok right, become a police witness and tell them that you used to meet Mahesh at a tea stall near Phawwara and you do not know anything more.
Subhash Should I meet you tomorrow ? I will call you at 8.00 AM
M.Nigam Right call me but do not meet me. Keep the programme
for some other place
Subhash Please, make some arrangement
State Versus Mahender Nigam and Others 140/177
141 FIR NO. 99/04 PS Darya Ganj
U/s 302/120B IPC
M.Nigam Why? Are you left with no money?
Subhash I have
M.Nigam. Are you left with no money?
Subhash No. I had given all of it to them. Now payment is also to
be made to the Lawyer.
M.Nigam Ok call me tomorrow
Through interception of IMEI No. 352539009267070 on 24.03.2004 at about 09.17 PM on mobile no.9818130384 accorded vide order No.1250/P.Sec./(W.R) Mahesh Hello Mahinder Nigam Hello Mahesh Hanji Namaskar ji M.Nigam Namaskar Mahesh is Everything OK?
M.Nigam What is right. They are looking for your friend.
Mahesh which friend?
M.Nigam Your only friend. Who else.
Mahesh ....(unclear voice)
M.Nigam .......Ok
Mahesh Are they looking for Nati ?
M.Nigam Yes
Mahesh Yes he had gone to meet them
M.Nigam He had been called by Lahori Gate Police
but in the night, police of Darya Ganj was
searching for him.
State Versus Mahender Nigam and Others 141/177
142 FIR NO. 99/04 PS Darya Ganj
U/s 302/120B IPC
Mahesh (unclear voice)
M.Nigam They were enquiring about your
whereabouts, what else
Mahesh (unclear voice)
M.Nigam No, there is nothing special. The problem is
that Nati should not be apprehended
because Nadir is there and they got 7 days
remand of Nadir
Mahesh (unclear voice)
Mahender Nigam Ok
Mahesh (unclear voice)
M.Nigam Yes, All, all
Mahesh (unclear voice)
Mahender Nigam Yes
Mahesh (unclear voice). Make arrangement for
some place
M.Nigam You reach Kanpur. When will you reach
Kanpur?
Mahesh You tell me (unclear voice)
M.Nigam Reach there on Sunday
Mahesh Sunday?
M.Nigam Yes, Sunday
Mahesh (unclear voice)
M.Nigam You live there comfortably. Everything is
fine here.
They will enquire only your whereabouts
from Nati and thereafter, they will become
silent after two-four days. I have told Nati to disappear.
Mahesh (unclear voice) State Versus Mahender Nigam and Others 142/177 143 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC M.Nigam Yes Mahesh (unclear voice) M.Nigam Your connection is not of Hutch. Mahesh (unclear voice) M.Nigam It is not Hutch , but Airtel, can not be put in Airtel. Mahesh (unclear voice) M.Nigam Yes,Can not be put in Airtel but can be put in Hutch Mahesh (unclear voice) M. Nigam (unclear voice) Kanpur Mahesh (unclear voice) M.Nigam In the evening, what time will you reach there? Mahesh On Sunday M.Nigam Ok Mahesh (unclear voice) 4 "o" clock M.Nigam Four Mahesh I will call you on Saturday. M.Nigam You reach J.K. Temple at 4.00 PM on Sunday Mahesh (unclear voice) M.Nigam There is a JK temple there. Mahesh JK Temple? M.Nigam Yes, in Kamla Nagar (unclear voice) Mahesh Shall I write? M.Nigam Yes, write State Versus Mahender Nigam and Others 143/177 144 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Mahesh J.K Temple M.Nigam J.K Temple (unclear voice) Kamla Nagar Mahesh (silence) M.Nigam Hello Mahesh Yes M.Nigam JK Temple is a very big temple. Adjacent to it, there is shoe stall . You meet there at about 4 pm. Mahesh (Silence) M.Nigam Yes Mahesh Yes M.Nigam Meet there at 4.00PM Mahesh Right. But I will call you M.Nigam .... Mahesh (unclear voice) M.Nigam You reach there, no need to call me Mahesh No. Actually (unclear voice) M.Nigam You reach Kanpur and stay in a hotel. What is the problem Mahesh (unclear voice) M.Nigam Stay there in the hotel for one day Mahesh There? M.NIgam Yes Mahesh (unclear voice) M.Nigam Yes. You stay in a hotel. I will call you on Saturday, to inform you whether to reach before 4 PM State Versus Mahender Nigam and Others 144/177 145 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Mahesh (unclear voice) M.Nigam You reach on Saturday and call me. Mahesh (unclear voice) M.Nigam You have written the address of J. K Temple, my man will meet you there and arrange a house where you both
brothers live comfortably. And , hello, don't call Nati.This number is also to be removed and my man will also arrange for cash card which you put in your mobile set.
Mahesh (unclear voice)
M.Nigam I was saying dont call Nati
Mahesh (unclear voice)
M.Nigam ..... Later on, there should be no problem
because of phone. From phone, he can be
traced. ( unclear voice )
Mahesh (unclear voice)
M.Nigam You know my man. He will make
arrangement for both of you brothers. You
stay there peacefully and don't drink
alcohol there.
Mahesh Ok We will live peacefully.
M.Nigam Dont make noise of any kind
Mahesh (unclear voice)
M. Nigam Whose name you will take, later on?
Mahesh (unclear voice)
M.Nigam Yes
Mahesh (unclear voice)
M.Nigam (unclear voice)......... Pawan some
mohamaddans have been
apprehended, they are Khalil's men
State Versus Mahender Nigam and Others 145/177
146 FIR NO. 99/04 PS Darya Ganj
U/s 302/120B IPC
Mahesh (unclear voice)
M.Nigam Yes
Mahesh (unclear voice)
M.Nigam Yes
Mahesh (unclear voice)
M.Nigam Ok. Dont worry. We Will find some
solution.
Mahesh (unclear voice)
M.Nigam Stay comfortably for 2/3 months there and
reach there at 4 pm onSunday and meet
them. Dont call Nati on his
residential number either to disturb him.
Mahesh No. I only called you
M.Nigam Ok. Stay comfortably rest I will see.OK
Mahesh Yes
133.From the transcripts Ex.PW61/A and Ex.PW 61/C, it transpired that accused Mahesh was talking from Dehradoon and was instructed by accused Mahender Nigam to reach Kanpur at about 4.00PM near the Shoe Stall of J.K.Temple in Kamla Nagar area where some person known to him would meet him and arrange accommodation for him. The duplicate copies of audio cassette containing all the three calls were prepared and the transcripts and original (Ex.P1) and duplicate cassette (Ex.P2) were prepared which were handed over to Ins.Rakesh Giri (PW61)who sealed the same with the seal of RGG and seized them vide seizure memo Ex. PW50/J. It was only on the basis of the intercepted State Versus Mahender Nigam and Others 146/177 147 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC conversation held between accused Mahesh and accused Mahender Nigam, that PW 61 Ins.Rakesh Giri of Special Staff along with PW 52 Insp. Jai Narayan went to Kanpur on 28.03.2004 where they recorded their arrival at PS Nazibabad. Thereafter, with the help of the local police , they apprehended accused Rakesh and Mahesh at about 8.00 PM near the Shoe Store, J.K. Temple , Kanpur. Accused Ganesh Nigam (since deceased) who was brother-in-law of accused Mahender Nigam was also apprehended along with the accused Rakesh and Mahesh whereafer they were interrogated and their disclosure statements Ex. PW52/A, Ex.PW52/B and Ex. PW52/C were recorded. At their instance, a raid was conducted vide search memo Ex.PW15/C at room no.119, Niranjan Guest House, Kanpur in presence of PW 15 Ayodhya Prasad, owner of the hotel. During the search of the said room, currency notes amounting to Rs.63,000/- wrapped in an handkerchief and mobile phone make Motorola with IMEI No. 352054003056050 was recovered. This IMEI number is the same which had been kept on surveillance and by discovery of the said mobile handset with IMEI No.352054003056050 and arrest of accused Mahesh from J.K.Temple, Kanpur, it is established that it was accused Mahesh who was using this handset for communicating with accused Mahender Nigam. From room no. 119, receipts of hotels of Hardwar, Dehradoon and Garhwal were also seized. The hotel register was seized vide seizure memo Ex.PW15/A which disclosed that accused Rakesh and Mahesh had checked in the hotel at 11.15 AM and room no. 119 was allotted to State Versus Mahender Nigam and Others 147/177 148 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC them. All the three accused i.e. Mahesh, Rakesh and Ganesh Nigam were thereafter brought to Delhi on transit remand and interrogated. After interrogation, disclosure statement (Ex.PW56/C) of accused Mahesh was recorded on 31.03.2004 wherein he disclosed that he had hidden the second fire arm given to him by accused Nadir and which was used in the commission of the murder of Yogesh @ Babli at his house at 93, Gandhi Gali, Tilak Bazar, Delhi. Accused Mahesh led the police party headed by SI Sudhir along with PW -26 Virender Yadav to his house at Tilak Bazar, Gandhi Gali, Delhi and he got recovered one country made pistol wrapped in a newspaper from underneath the clothes lying on the bed in the room on the ground floor. He also disclosed that this countrymade pistol was given to him by accused Nadir. Sketch of this country made pistol Ex. PW26/A was prepared and it was sealed with the seal of SK and seized vide seizure memo Ex.PW26/B by SI Sudhir Kumar/PW69. The sealed parcel sealed with the seal of SK containing countrymade pistol was deposited in malkhana vide entry in register no. 19 (Ex.PW17/H).
134. As already discussed, the bullets recovered from the body of deceased Yogesh @ Babli were examined by the Biology division, Department of Forensic Medicines, MAMC and were subsequently forwarded to Ballistic Division of FSL, Rohini along with the fire arms recovered at the instance of accused Javed and accused Mahesh which on examination by PW 32 Puneet Puri, Senior Scientific Assistant (Ballistic) FSL, Rohini were opined to be fire State Versus Mahender Nigam and Others 148/177 149 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC arms as defined under Arms Act and in working order. PW32 gave his report Ex. PW32/ A and Ex.PW32/B as per which, it was opined that the two bullets recovered from the body of deceased were fired from the fire arms recovered at the instance of accused Javed and Mahesh being Ex.P1 and PX1.
135.So far as the recorded conversation of accused Mahesh with accused Mahender Nigam at 9.30 PM on 23.03.2004, at 9.17 PM on 24.03.2004 and the transcripts Ex.PW61/A and Ex. PW61/C of the said conversations are concerned, the recorded cassette was played in the Court and it was admitted that the transcripts Ex.PW61/A and Ex.PW61/C both corresponded with the conversations heard on the cassette. The entire conversation has already been reproduced in para no.133. above. Hence, same is not being reproduced for the sake of brevity. All the accused namely accused Subhash , Mahesh and Mahender Nigam had refused to give their voice samples before the concerned MM after they were warned that their refusal may be read in evidence against them. Hence, it is held that the conversation in question were indeed between accused Subhash @ Nati and Mahender Nigam on 23.03.2004 and between accused Mahesh and Mahender Nigam on 23.03.2004 and 24.03.2004. However, it is worthwhile to mention here that the transcripts Ex.PW61/ A and Ex. PW61/C disclosed that;
State Versus Mahender Nigam and Others 149/177 150 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
(i) Accused Mahinder Nigam is informing accused Mahesh regarding the arrest of accused Nadir and accused Nadir taking the name of accused Mahesh
(ii) Accused Mahinder Nigam and accused Mahesh discussing the issue of interrogation of accused Subhash @ Nati by one Raja Ram of PS Lahori Gate and that accused Subhash @ Nati has been explained that in case he is arrested by the police, he should either take the name of Pawan or Bankey.
(iii) Accused Mahinder Nigam telling accused Mahesh that he would arrange an accommodation for accused Mahesh at Kanpur for their safe hiding.
(iv) Accused Mahinder Nigam telling accused Mahesh that accused Subhash @ Nati had visited PS Lahori Gate and now the police officers of PS Darya Ganj are looking for accused Subhash @ Nati who is a close friend of accused Mahesh.
(v) Accused Mahinder Nigam telling accused Mahesh that police officers of PS Lahori Gate were enquiring the whereabouts of accused Mahesh from accused Subhash @ Nati.
(vi) Accused Mahinder Nigam telling accused Mahesh that accused Nadir was on police custody remand for seven days .
(vii) Accused Mahinder Nigam telling accused Mahesh that he will arrange a safe place for them and at worst the police will ask State Versus Mahender Nigam and Others 150/177 151 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC accused Subhash @ Nati about accused Mahesh and after doing this exercise for 2-4 days, they will become silent.
(viii)Accused Mahinder Nigam directing accused Mahesh to reach the Shoe Store at J.K. Temple, Kamla Nagar, Kanpur at 4.00 PM on Sunday where associate of Mahinder Nigam known to Mahesh will meet Mahesh and his brother accused Rakesh and arrange a safe place for them.
(ix) Accused Mahender Nigam directing accused Mahesh to not to call Subhash @Nati and that accused Mahesh should purchase a new cash card.
(x) Accused Mahinder Nigam informing accused Mahesh that the Muslims have been caught and they are the goons of Khalil.
136.After the arrest of all the accused persons except accused Subhash @ Nati, accused Mahesh and coaccused Mahender Nigam were produced before the Court of Sh. Alok Aggarwal, the then MM with a request to direct the accused Mahesh and Mahender Nigam to give their voice samples which was allowed vide order dated 13.05.2004 subject to the willingness of the accused Mahender Nigam and Mahesh. The learned MM accordingly directed that willingness of accused be recorded before PW 66 Sh.A.K.Kuhar, the then Link MM on 14.05.2004 . The proceedings were conduced by PW66 and the matter was fixed for 15.05.2004. Since PW 66 Sh.A.K.Kuhar, Link MM was on leave on 15.05.2004, the proceedings were conducted before State Versus Mahender Nigam and Others 151/177 152 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Sh.S.K.Gautam (PW 64), the then Link MM for recording the voice samples of accused Mahender Nigam and accused Mahesh. Despite PW 64 having warned the accused that their refusal may go against them, the accused refused to give their voice samples without assigning any reason. Therefore, an adverse inference is liable to be drawn against the accused Mahesh to the effect that had they given their voice samples it would have matched with the intercepted conversations between them.
137.It is thus established that accused Mahesh was also one of the main participants in the conspiracy to murder Yogesh Sharma @ Babli. In arriving at the said finding, the following evidences are taken into consideration;
(i) Accused Mahesh was seen in the office of accused Mahender Nigam regularly.
(ii)Accused Mahesh was in constant touch with accused Mahender Nigam telephonically before and soon after the murder and continuously thereafter.
(iii)Interception of call between accused Mahender Nigam and accused Mahender Nigam at 9.30 pm on 23.03.2004 and at 9.17PM on 24.03.2004 showing incriminating conversation.
(iv)Arrest of accused Mahesh from J.K.Temple, Kanpur on the basis of the interception of call on 28.03.2004.
State Versus Mahender Nigam and Others 152/177 153 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
(v)Recovery of mobile instrument with IMEI No.352054003056050 at the instance of accused Mahesh during the search of Niranjan Guest House used to communicate with accused Mahender Nigam.
(vi)Recovery of second fire arm/country made pistol Ex.PX1 used in the commission of murder of Yogesh @ Babli from the house of accused Mahesh at his instance given to him by coaccused & co- conspirator Nadir.
(vii) Opinion of PW 32 Puneet Puri that one of the bullets recovered from the body of Yogesh @ Babli was fired from the fire arm/ country made pistol recovered at the instance of accused Mahesh.
138.In my opinion, when all the aforesaid incriminating circumstances are taken together, it can be safely held that it forms a chain so complete that the only irresistible conclusion which one can arrive at is about the guilt of the accused Mahesh as co-conspirator who was in league with the main conspirator/accused Mahender Nigam and a link in the chain between accused Mahender Nigam and accused Nadir and his associate accused Javed. In any case his role as a co-conspirators for the murder of Yogesh Sharma @ Babli stands fully established.
RAKESH
139. Except for the apprehension of accused Rakesh from J.K. Temple, Kanpur, on 28.03.2004 with his brother Mahesh nothing has come State Versus Mahender Nigam and Others 153/177 154 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC on record to establish his role in the conspiracy of committing murder of Yogesh @Babli. Hence, in my opinion, no part can be attributed to accused Rakesh in the entire conspiracy. He thereafter deserves benefit of doubt.
SUBHASH @ NATI
140. Accused Subhash @ Nati surrendered on 10.08.2004 before the concerned Court of MM and he was arrested by PW 55 Insp. Raghuvir Prasad. The role of the accused Subhash @ Nati in the conspiracy to murder Yogesh @Babli is evident from the evidence which has come on record and the interception of IMEI no. 352539009267070 relating to accused Mahender Nigam at about 8.40 PM on 23.03.2004 (Ex.PW61/B) where accused Mahender Nigam is found talking to accused Subhash @ Nati and addressing him as such. The conversations Ex.PW 61/A, Ex.PW 61/B and Ex. PW61/C lend credence to each other. The text of the interceptions Ex.PW 61/A, Ex.PW61/B and Ex.PW 61/C are not being reproduced herein for the sake of brevity. Ex. PW 61/B which is the transcript of the conversation between accused Mahender Nigam and accused Subhash @ Nati shows the following:
(i) Accused Subhash @Nati informing accused Mahender Nigam that he was called by officials of PS Lahori Gate and they were enquiring about the whereabouts of accused Mahesh.
State Versus Mahender Nigam and Others 154/177 155 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
(ii) Accused Subhash @ Nati being informed by accused Mahender Nigam that officials of PS Darya Ganj were looking for him.
(iii) Accused Mahender Nigam directing accused Subhash @Nati to go underground as accused Nadir has been apprehended and is in police remand and may be confronted with him if he is also arrested.
(iv) Accused Subhash @ Nati telling accused Mahender Nigam that in case he is picked by officials of PS Darya Ganj, he will tell them that he does know Mahesh.
(v) Accused Mahender Nigam directing accused Subhash @ Nati that in case, he is made to face accused Nadir, he should take the name of Bankey.
(vi) Accused Mahender Nigam enquiring if any money was left out of the money which was given by him to accused Subhash @Nati to make arrangements.
141.In Ex. PW 61/B, accused Mahender Nigam is found to be directing accused Subhash @ Nati to go underground/disappear till the time Nadir is in police remand and also not to divulge the whereabouts of accused Mahesh in case Subhash @ Nati is called by the police officials of PS Darya Ganj. The accused Subhash @ Nati had also refused to give his voice sample before the concerned Metropolitan Magistrate after he was administered warning that his refusal to State Versus Mahender Nigam and Others 155/177 156 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC give voice sample may be read against him. The conversation between coaccused Mahesh and Mahender Nigam already discussed in the earlier part of the judgment also referres to accused Subhash @ Nati. It is thus proved that accused Subhash @ Nati who remained underground for almost six months was also co-conspirator with accused Mahesh in engaging co-accused/co- conspirator Nadir for the commission of the murder of Yogesh @ Babli.
MAHENDER NIGAM
142.During the investigation, it was revealed that deceased Yogesh Sharma @Babli was running a building construction business in which, PW 14 Umesh @ Bankey and PW-26 Virender Yadav were partners. It was also revealed that the deceased Yogesh Sharma had also constructed several buildings jointly with accused Mahender Nigam and hence, mobile phones of all the suspects and associates of deceased Yogesh were taken on surveillance on the basis of the permissions sought from competent authority. After examining, all the call detail records relating to the various associates of deceased Yogesh @ Babli, accused Mahender Nigam was found to have a strong motive and to be a direct beneficiary from the death of Yogesh Sharma @Babli .
143.Accused Mahender Nigam was arrested from his residence i.e. E 228, East Of Kailash, New Delhi at 1.00 AM on the night intervening 29.03.2004 & 30.03.2004 . During his personal search, State Versus Mahender Nigam and Others 156/177 157 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC one mobile phone make Nokia having SIM No.9811126007 was recovered which according to PW 25/Pawan Kumar (employee of accused Mahender Nigam) was purchased in his name but was used by accused Mahender Nigam. Same was deposited in the malkhana vide entry Ex.PW 17/G. On 01.04.2004, in pursuance of the disclosure statement of accused Mahender Nigam, he got recovered four mobile phones i.e one reliance phone having No. 35900174, Nokia 7250 bearing IMEI No.351346808192134, Samsung phone with IMEI no.351623006475929 and Nokia 3315 having IMEI No.352539009267072 which were seized vide seizure memo Ex.PW 9/G and deposited in malkhana vide Ex.PW17/J. The accused Mahender Nigam also got recovered some documents relating to some properties which were seized vide seizure memo Ex. PW9/H, the details of which are as follows:-
(i) Construction agreement between Mahender Nigam and Swatantra Kumar regarding property No.2079 to 2085, Katra Roshan Odola, Kinari Bazar, Delhi dated 07.08.2003 (proved as Ex.PW31/A)
(ii) Sale deed of property no. V/985 to V/987, Gali Bhojpura, Maliwara, Delhi dated 23.03.2002 between Pradeep Kumar Aggarwal and PW Umesh Sharma S/o Lakshmi Narayan (Parter of deceased) State Versus Mahender Nigam and Others 157/177 158 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
(iii) Sale deed dated 17.05.2002 regarding property No.T-5139, Pusa Road, New Delhi between Mahender Nigam and PW Virender Singh Yadav (partner of deceased) (proved as Ex. 26/D)
(iv)Sale deed dated 17.5.2002 of property No. T-5139, A-1 Pusa Road, Delhi between Radha Nigam and Virender Singh Yadav (partner of deceased) (proved as Ex.PW26/C)
(v)Agreement to sell with respect to property no.1/888-89, Chandni Chowk, Delhi dated 17.05.2002 between Mahender Nigam and Umesh Sharma ( partner of deceased)
(vi) GPA dated 17.05.2002 regarding property no. 9A, 10 , 10 A, 10B and 11 to 20 ground floor Chandni Chowk, Delhi (Ex.PW26/D)
135.It has come in evidence of PW-9 Vishal, PW 14 Umesh Sharma and PW26 Virender Yadav that they were all associates of deceased Yogesh Sharma @ Babli and that deceased Yogesh Sharma was doing the business of construction with accused Mahender Nigam. PW 9 , Vishal who was the Supervisor in the office of deceased Yogesh Sharma @ Babli categorically stated in his testimony that accused Mahender Nigam, deceased Yogesh Sharma @ Babli, PW 26 Virender Yadav and Pw 14 Umesh Sharma were partners and his salary was being given to him by deceased Yogesh Sharma @ Babli, PW 26 Virender Yadav and PW 14 Umesh Sharma. Similarly, it has come in evidence of PW14 Umesh Sharma that he along with Yogesh Sharma was doing the business of construction of buildings along with accused Mahender State Versus Mahender Nigam and Others 158/177 159 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Nigam from the office situated at 1194, Keshav Market, Maliwara, Chandni Chowk, Delhi. Accused Mahender Nigam was also having a separate office at Fountain Chowk. They used to purchase houses /shops pre-occupied by the tenants and after getting the tenants evicted (removed) would construct the same and sell them.
It was also testified by PW14 that deceased Yogesh Sharma used to keep his share in the joint business with accused Mahender Nigam and had thus deposited Rs. Six crores (approximately) with accused Mahender Nigam. Deceased Yogesh @ Babli was pressurizing accused Mahender Nigm to pay this amount for the last six months. It was also testified by him that accused Mahesh, Rakesh (brother of accused Mahesh) , Subhash @ Nati were seen in the office of accused Mahender Nigam as and when he visited his office.
144.PW-26 Virender Yadav also corroborated the statements of PW 9 Vishal and PW 14 Umesh Sharma on all material particulars and testified regarding the joint construction business of deceased Yogesh Sharma @ Babli with accused Mahender Nigam and the deposit of Rs. Six crores (approximately) belonging to deceased Yogesh Sharma @ Babli with accused Mahender Nigam and about the presence of accused Mahesh , Rakesh and Subhash @ Nati in the office of accused Mahender Nigam. PW 26 also testified regarding the purchase of properties by deceased Yogesh Sharma @ Babli from accused Mahender Nigam in his name and in the name of PW 14 Umesh Sharma. This fact is also corroborated from State Versus Mahender Nigam and Others 159/177 160 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC the documents recovered from the house of accused Mahender Nigam at his instance.
145.PW-19 Balbir Singh also deposed on similar lines as that of PW 14 Umesh Sharma and PW 26 Virender Yadav regarding the deposit of Rs. Six crores belonging to deceased Yogesh Sharma @ Babli with accused Mahender Nigam. He deposed that deceased Yogesh Sharma @ Babli was known to him as he used to live in Darya Ganj . About 2-3 months prior to the death of deceased Yogesh Sharma @ Babli, Yogesh Sharma had had a conversation with accused Mahender Nigam in which, deceased Yogesh Sharma was heard to be demanding Rs.5-6 crores from accused Mahender Nigam and accused Mahender Nigam assuring the deceased that he will try and make the arrangement.
146.Manoj Jain who was examined as PW23 supported the fact that deceased Yogesh Sharma used to purchase properties in the name of PW 14 Umesh Sharma and PW-26 Virender Yadav. PW23 was engaged in the business of documentation along with his father Mangi Lal Jain who were attesting witnesses to the documents relating to some properties recovered from the house of accused Mahender Nigam on 01.02.2004.
147.It has also come in evidence that PW-20 Kishan Mohan who was running a cloth business as tenant was offered by deceased Yogesh Sharma @ Babli to vacate property at 2083, Kinari Bazar, Delhi in exchange of money. Deceased Yogesh Sharma @ Babli State Versus Mahender Nigam and Others 160/177 161 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC had paid Rs.50,000/- to him in the presence of his brother Jagat Mohan, his bhabhi Divya , his sister Kanan and his nephew (PW22) Sunil Kumar. The amount of Rs.50,000/-after the death of Yogesh Sharma @ Babli was returned. This fact is corroborated by the recovery of document Ex.PW31/A from the house of accused Mahender Nigam as per which, accused Mahender Nigam had entered into a construction agreement with its owner Swatantar Kumar, owner of properties bearing numbers 2079 to 2085, Kinari Bazar, Delhi. The payment of Rs.50,000/- by deceased Yogesh @ Babli to PW 20 Kishan Mohan to vacate property bearing No.2083, Kinari Bazar, Delhi and recovery of construction agreement Ex.PW31/A between accused Mahender Nigam and Swatantar Kumar, owner of the said property establishes the fact that accused Mahender Nigam and deceased Yogesh Sharma @ Babli were associates and working in tandem to get the properties vacated in order to construct and sell the same.
148.The role of accused Mahender Nigam as the lead conspirator in the murder of Yogesh Sharma @ Babli is also evident from the interception of IMEI No.352539009267070 on 23.03.2004 and 24.03.2004 on mobile number 9818130384 belonging to HC Pratap (PW50). The fact that the instrument i.e mobile make 3315 with IMEI No. 352539009267070 was recovered from the possession of accused Mahender Nigam on 01.04.2004 from his residence affirms the fact that it was accused Mahender Nigam who was giving directions to accused Mahesh and accused Subhash @ Nati on State Versus Mahender Nigam and Others 161/177 162 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC 23.03.2004 and 24.03.2004. The text of the transcripts Ex.PW 61/A, Ex. PW61/B and Ex. PW 61/C which have already been reproduced in earlier part of this judgment shows that the conversations on 23.03.2004 and 24.03.2004 related to accused Mahender Nigam, accused Mahesh and accused Subhash @ Nati. Further, the refusal of accused Mahender Nigam to give his voice sample on 15.05.2004 before the court of PW 64 Sh.S.K.Gautam, the then link MM despite cautioning him about the consequences of his refusal to give voice sample also establishes the fact that it was accused Mahender Nigam who was conversing with accused Mahesh and accused Subhash @ Nati from mobile phone make Nokia 3315 with IMEI No. 352539009267070 .
149.The chain of circumstances which establish the role of accused Mahender Nigam as the main conspirator, on the basis of the evidence against him are as follows:
(i) Accused Mahender Nigam was an associate of deceased Yogesh Sharma @ Babli in their joint business of selecting properties occupied by tenants, purchasing them and getting the tenants evicted and then building the same and selling them.
(ii)Recovery of one paper slip (Ex.PW68/A) from accused Javed on which name of Umesh @ Bankey (PW-14, partner of Yogesh @ Babli), 9811101020, 56035758 Laxmi Nagar was written. Accused Javed had revealed during his interrogation that he was asked to State Versus Mahender Nigam and Others 162/177 163 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC reveal the name of Umesh @ Bankey as the person who had directed the murder of Yogesh @ Babli , in case he is caught.
(iii) Accused Mahender Nigam owed almost 6 crores to the deceased Yogesh Sharma @ Babli at the time of his death being his accumulated share in the joint construction business. Accused Mahender Nigam thereby had very strong motive to eliminate Yogesh Sharma @ Babli.
(iv) Accused Mahesh, Rakesh and Subhash @ Nati were often seen in the office of accused Mahender Nigam
(v)Flow of money from accused Mahender Nigam to accused Subhash @ Nati and accused Mahesh and from accused Subhash @ Nati and accused Mahesh to accused Nadir and his associates.
(vi) The interception of mobile set bearing IMEI No. 352539009267070 belonging to accused Mahender Nigam, thereby recording of the conversations between accused Mahender Nigam, accused Mahesh and accused Subhash @ Nati.
(vii)Accused Mahender Nigam having knowledge of involvement of accused Nadir and his other Mohammadan associates.
(viii)Accused Mahender Nigam being worried that through accused Mahesh and accused Subhash, police could reach him and so he used to arrange for their safe hiding.
State Versus Mahender Nigam and Others 163/177 164 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
(ix) Accused Mahender Nigam providing monetary support to accused Subhash @ Nati and accused Mahesh while they were absconding after commission of murder.
(x)During the conversation between accused Mahender Nigam and accused Subhash @ Nati, accused Mahender Nigam was found directing accused Subhash @ Nati that in case of apprehension and coming face to face with Nadir, he should take the name of Umesh @ Bankey .
(xi) Apprehension of accused Mahesh, Rakesh and accused Ganesh Nigam (since deceased and brother in law of accused Mahender Nigam) from JK Temple, Kanpur, UP on 28.03.2004 consequent upon the surveillance of IMEI No. 352539009267070 on 24.03.2004 wherein accused Mahender Nigam had conveyed to accused Mahesh that he would be sending his man (accused Ganesh Nigam) to make arrangements for their safe boarding and lodging at Kanpur for more than a month.
(xii) Recovery of mobile set make Nokia 3315 with IMEI No. 352539009267072 from the residence of accused Mahender Nigam at his instance
(xiii) Refusal of accused Mahender Nigam to give his voice sample during the court proceedings.
150.Sh. S.C.Bhuttan, the learned counsel for the accused Mahender Nigam has very vehemently urged that the prosecution has State Versus Mahender Nigam and Others 164/177 165 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC miserably failed to prove that the order to put IMEI No. 352539009267070 alleged to be that of accused Mahender Nigam on surveillance was legal and not in contravention of The Telegraph Act. Since there was no valid sanction given to intercept IMEI No.352539009267070, the Court will have to ignore Ex.PW61/A, Ex. PW61/B and Ex.PW61/C being inadmissible in evidence. The argument of learned counsel for accused Mahender Nigam does not hold any water as firstly, appropriate permission was taken by Inspector Rakesh Giri/PW61 from the Additional Deputy Commissioner of Police to intercept IMEI No. 352539009267070, secondly, it was ratified by Principal Secretary (Home), Govt of NCT, Delhi vide officer orders Ex.PW46/A to Ex.PW 46/D. Also, no question was asked in the cross examination by the learned counsel for the accused persons challenging the legality or ratification by the Principal Secretary (Home) on a subsequent date. Even though, the permission sought by PW-61 Insp. Rakesh Giri (Special Staff) regarding the interception of IMEI No.352539009267070 was not proved by the prosecution, judicial notice of the document has to be taken in the facts and circumstances of the case.
151.Even otherwise, these alleged deficiencies or inadequacies do not, in my view preclude the admission of intercepted telephonic communication in evidence. In State Vs Navjot Sandhu @ Afsan Guru (supra), the issue of admissibility of intercepted telephonic communication was discussed. It was observed therein that " the State Versus Mahender Nigam and Others 165/177 166 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC non-compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained is no longer res Integra in view of the decision of this Court in R.M.Malkani V. State of Maharashtra, (1973) I SCC 471. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Indian Telegraph Act was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid down as follows:-
"......There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal mens, it could not be used against a party charged with an offence. See Jones V.Owen (1870) 34 JP 759. The Judicial Committee in Kumar, Son of Kanju V R (1955 I All E.R.
236) dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would State Versus Mahender Nigam and Others 166/177 167 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence."
152.We may also refer to the decision of a Constitution Bench of this Court in Pooranmal Vs.Director of Inspection, 1974 2 SCR 704 in which the Principle stated by the Privy Council in Kurma's case was approvingly referred to while testing the evidentiary status of illegally obtained evidence. Another decision in which the same approach was adopted is a recent judgment in State V. NMT Joy Immaculate (2004) 5 SCC 729.
153.Hence, in view of the judgments discussed above even if for the sake of argument the IMEI No.352539009267070 was allegedly illegally intercepted, it is admissible in evidence. It is also worthwhile to mention here that the audio cassette on which the interception was recorded was played in the court and the text Ex.PE 61/A , Ex.PW61/B and Ex.PW61/C of the calls intercepted was found to be correct and presumed to be between the main conspirators as accused Mahender Nigam, Mahesh and Subhash @ Nati refused to give the voice samples before the concerned Metropolitan Magistrate despite having been cautioned that their refusal to give voice samples may be read against them by the Court.
154.It was also very strongly contended by Sh.S.C. Bhuttan, learned counsel for the accused Mahender Nigam that Ex.PW61/A, Ex.PW61/B and Ex.PW61/C (transcripts of conversations between State Versus Mahender Nigam and Others 167/177 168 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC accused Mahender Nigam, accused Mahesh and accused Subhash @ Nati) reveal that the IMEI Number which was intercepted by the police was IMEI No.352539009267070 and the mobile instrument Nokia 3315 recovered from the residence of accused Mahender Nigam had IMEI No. 352539009267072 which are two different IMEI numbers and therefore, the IMEI number 352539009267070 which was intercepted can not be connected to the mobile instrument recovered from the accused Mahender Nigam as all mobile instruments have unique IMEI numbers.
155.In State Vs Mohd. Afzal and Others reported as 2003 VII AD (Delhi)1 relied upon by Sh. Rajeev Mohan, learned Special Public Prosecutor for the State , a similar question was raised. The evidence therein was that IMEI Number is a 15 digit number, the first six digits are type approval code which represent the manufacture of the hand set. The next two digits are assembly code which represent the model. The next six digits are serial numbers of the hand set according to GSM specification no.3.03. First 14 digits are significant and the last digit according to GSM specification could be transmitted by the mobile number as zero. IMEI code which corresponds to telephone number are assigned by telephone companies and they are unique. Last digit is the spare digit. It was not possible for two hand sets to have same first 14 digit numbers. This evidence was accepted as legal evidence against the accused persons.
State Versus Mahender Nigam and Others 168/177 169 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
156.Considering the acceptance of this evidence by the Hon'ble High Court of Delhi in the aforecited case (Supra), it is not possible that the mobile set recovered from accused Mahender Nigam from his house and the mobile set which was intercepted on 23.03.2004 and 24.03.2004 could have had same 14 digits, if they were different mobile phones. As already observed, the 15th digit is a spare digit and the first 14 digits of any IMEI number are unique to the hand set. Therefore, there can not be any doubt that the IMEI No. 352539009267070 which was intercepted was the same as the IMEI number 352539009267072 and belonged to accused Mahender Nigam.
157.In view of the aforesaid discussion of the evidence placed on record and judgments quoted herein, I am of the considered and firm view that the prosecution has been successful in proving beyond reasonable doubt that accused Mahender Nigam, Mahesh Kumar, Subhash @ Nati, Nadir and Javed @ Akil were members of criminal conspiracy to eliminate /commit the murder of Yogesh Sharma @ Babli at the behest of main conspirator accused Mahender Nigam who owed crores of rupees to the deceased Yogesh Sharma @ Babli being his unpaid accumulated share in their joint construction business. In my considered opinion , the prosecution has also succeeded in proving beyond reasonable doubt that in prosecution and furtherance of the aforesaid criminal conspiracy , deceased Yogesh Sharma @ Babli was shot dead by the contract killer co-accused /co-conspirator Javed @ Akil by using State Versus Mahender Nigam and Others 169/177 170 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC two countrymade pistols at about 11.15 AM on 25.02.2004 at the junction of Gali Moti Mahal and Gali Nanhe Khan, Darya Ganj, Delhi.
158.I therefore have no hesitation to hold accused Mahender Nigam, Mahesh Kumar, Subhash @ Nati , Nadir and Javed @ Akil guilty under Section 120 A punishable under Section 120 B IPC and under Section 302 read with Section 120 A IPC and convict them accordingly. I also hold accused Javed @ Akil guilty u/s 27 Arms Act and accused Mahesh Kumar guilty u/s 25 Arms Act and convict them accordingly. However, accused Rakesh Kumar, brother of accused Mahesh Kumar and accused Sayed Abrar Hussain are acquitted of all charges , giving them benefit of doubt.
159.Before parting with this part of the judgment , I must put on record my appreciation for the highly professional, painstaking and fair investigation conducted in this case. Special mention is required to be made for the hard work put in by the then Inspector D.V.Joshi and Rakesh Giri, the then SI's Rajesh Malhotra and Sudhir Kumar and the then Head Const. Pratap for unearthing this meticulously planned conspiracy and bringing the culprits to justice.
Judgment Signed (HEMANI MALHOTRA)
and Pronounced ASJ/05/C/DELHI
in open Court on : 13.1.2015
State Versus Mahender Nigam and Others 170/177
171 FIR NO. 99/04 PS Darya Ganj
U/s 302/120B IPC
IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL SESSIONS JUDGE-05 (CENTRAL), TIS HAZARI COURTS, DELHI Sessions Case No. 11/2014 (Original No70/2004) FIR No. 99/04 PS Darya Ganj Under Section 302/120B/34 IPC And U/s 27/25 of Arms Act State Versus Javed @ Akil Mohd. Nadir Mahesh Kumar Subhash @ Nati Mahender Nigam ........................ Convicts ORDER ON SENTENCE State Versus Mahender Nigam and Others 171/177 172 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
1. Vide judgment of conviction dated 13.01.2015, convict Mahender Nigam, a well known builder of old Delhi , his companions/accomplices Mahesh Kumar (Tomar) and Subhash @ Nati and their contract killers Nadir and Javed @ Akil have been convicted for hatching criminal conspiracy to commit murder of Yogesh Sharma @ Babli punishable under Section 120B IPC. They have also been convicted u/s 302 IPC read with Section120 B IPC for committing the murder of Yogesh Sharma @ Babli at about 11.15 AM on 25.02.2004 outside House No. 2724 at the junction of Gali Moti Mahal and Gali Nanhe Khan in pursuance and prosecution of the criminal conspiracy hatched by them. Convict Javed @ Akil and convict Mahesh Kumar (Tomar) have also been convicted under Section 27 Arms Act and 25 Arms Act respectively.
2. As per the prosecution, convict Mahender Nigam and deceased Yogesh Sharma @Babli were doing property construction business jointly. The duo used to purchase already inhabited old buildings whereafter they used to get the tenants and occupants of these property evicted without following due process of law. The duo used to earn huge profits by selling these properties after raising construction. The further case of the prosecution was that in this business, the accrued share of profit of deceased Yogesh Sharma @Babli accumulated to the tune of about Rs.5-6 crores. The deceased Yogesh @ Babli had been pressing the main convict Mahender Nigam to pay off his share but convict Mahender Nigam went on avoiding payment on one pretext or the other and State Versus Mahender Nigam and Others 172/177 173 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC ultimately decided to get Yogesh Sharma @ Babli liquidated. He took his companions /co-conspirators /convicts Mahesh Kumar (Tomar) and Subhash @ Nati in confidence and then hatched a criminal conspiracy. In prosecution and pursuance of the object of this conspiracy, contract killer/ convict Nadir was engaged. He then facilitated the engagement of contract shooters Sayed Abrar Hussain ( since acquitted for want of sufficient evidence) and convict Javed @ Akil. As per plan, Rakesh (since acquitted for want of evidence) and convicts Mahesh Kumar (Tomar) and Subhash @ Nati showed Yogesh Sharma @ Babli to the shooters namely convict Javed @ Akil and his friend Sayed Abrar Hussain. A reccee was conducted in the area of Gali Kale Khan and adjoining lanes namely Gali Nane Khan , Gali Moti Mahal etc and it was found that the deceased Yogesh Sharma @ Babli who was residing in house No.2680-81, Gali Kale Khan , Chandni Mahal used to leave his house at about 11.00 AM every day for going to his office situated in Chandni Chowk via Gali Kale Khan, Gali Nanhe Khan , Gali Moti Mahal on foot. On 24.02.2004, convicts Javed @ Akil, Nadir, Mahesh Kumar (Tomar) and Subhash @ Nati along with Rakesh and Abrar Hussain (since both acquitted) assembled at the phatak Hawas Khan, Tilak Bazar and planned to kill Yogesh @ Babli on 25.02.2004. As per plan, convict Javed @ Akil had already purchased two country made pistols from Hapur. On 25.02.2004, convict Javed @ Akil made a call on the mobile of Abrar Hussain directing him to reach Unique Gym in Kucha Dhakani on Yamaha motorcycle no. DL-1SM-3957 with two helmets . Convicts Mahesh State Versus Mahender Nigam and Others 173/177 174 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Kumar (Tomar) , Subhash @ Nati and Nadir also reached the area . There convict Javed @ Akil and his companion Abrar Hussian demanded blood money from convict Mahesh Kumar (Tomar) who immediately made a call on the mobile of convict Subhash @ Nati who was waiting with the blood money at the Subzi Mandi near Moti Mahal Gali. Thereafter, convict Mahesh Kumar (Tomar) took convict Javed @ Akil and Abrar Hussain to see convict Subhash @ Nati at Subzi Mandi to ensure that blood money had been arranged. At about 11.10 AM, convict Mahesh Kumar (Tomar) gave a ring on the mobile of convict Javed whereafter Abrar Hussain drove convict Javed @ Akil on the motorcycle while both of them were wearing helmets and reached Gali Kale Khan via Gali Tehsildar where they saw deceased Yogesh @ Babli coming from his house. Upon seeing Yogesh Sharma @ Babli, Abrar Hussain turned back the motorcycle. Convict Javed @Akil got down and shot Yogesh Sharma @ Babli from behind with a country made pistol in front of STD shop at the junction of Gali Moti Mahal and Gali Nanhe Khan at about 11.15 AM. Convict Javed kept this pistol in the left side dub and fired another shot on the stomach of Yogesh Sharma @ Babli with another country made pistol. After shooting Yogesh Sharma @ Babli dead, convict Javed ran towards the motorcycle standing at the corner of Gali Tehsildar and escaped to Lal Kuan via Pataudi House. Convict Javed @ Akil was paid Rs. One lac and twenty thousand while Abrar received Rs.90,000/-.
State Versus Mahender Nigam and Others 174/177 175 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC
3. Convict Javed @ Akil was nabbed on 20.03.2004 and at his instance , one of the country made pistol Ex. P1 was recovered from a jhuggi at Kanchan Puri , Rajghat. The other pistol Ex.PX1 was given to convict Nadir who in turn gave it to convict Mahesh Kumar (Tomar ) for safe custody. Convict Nadir was arrested on the night of 23.03.2004 and at his instance, some incriminating articles and cash of about Rs. two lacs of blood money were recovered. All the convicts were in constant touch with one another on their respective mobile phones. After following due legal procedure, conversation between Subhash @ Nati and convict Mahender Nigam was intercepted at about 8.40 PM on 23.03.2004 which was recorded on cassette recorder. In this conversation, convict Subhash @ Nati informed convict Mahender Nigam that he was picked up by Lahori Gate Police and after torturing him, he was let off . Convict Mahender Nigam directed him that he should remain underground so that he might not be nabbed by the Darya Ganj police who will then confront him with convict Nadir who was already in their custody. Similarly, conversations between convict Mahesh Kumar (Tomar) speaking from Dehradun and convict Mahender Nigam made at 9.30 PM on 23.03.2004 and at 9.17 PM on 24.03.2004 were also intercepted. During these conversations, convict Mahender Nigam had informed convict Mahesh Kumar (Tomar) that convict Subhash @ Nati had been picked up by Lahori Gate police but was let off to gather information regarding whereabouts of convict Mahesh Kumar (Tomar) and he was being searched by police of Darya Ganj. Convict Mahender Nigam State Versus Mahender Nigam and Others 175/177 176 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC directed him to reach J.K. Temple, Kanpur on coming Sunday where he would meet his man who will arrange for safe home for him at Kanpur. It was only due to interception and tape recording of this conversation that convict Mahesh (Tomar) was arrested from the Shoe Store at J.K. Temple, Kanpur on 28.03.2004 and brought to Delhi after obtaining transit remand. Convict Mahesh Kumar Tomar got recovered the second weapon of offence i.e. the second country made pistol Ex.PX1 on 31.03.2004 from his house at Gandhi Gali , Delhi. Convict Mahender Nigam was arrested on 30.03.2004 and incriminating materials were recovered at his instance. Senior Scientific Officer of FSL, Sh. Puneet Puri had specifically opined that the two bullets recovered from the body of deceased Yogesh @ Babli during post mortem were fired from country made pistol Ex.P1 recovered at the instance of convict Javed @ Akil and country made pistol Ex.PX1 recovered at the instance of convict Mahesh Kumar (Tomar).
4. I have heard learned counsels for the convicts and learned special Prosecutor on behalf of the State on the point of sentence. I am of the considered opinion that this case does not fall in the category of rarest of rare cases warranting death sentence. Hence, all the convicts namely Mahender Nigam, Mahesh Kumar ( Tomar), Subhash @ Nati, Nadir and Javed @ Akil are awarded sentence of Life Sentence u/s 120 B IPC. All of them are also sentenced to undergo Life Sentence with minimum RI incarceration of actual fourteen (14) years without any remission and fine of State Versus Mahender Nigam and Others 176/177 177 FIR NO. 99/04 PS Darya Ganj U/s 302/120B IPC Rs.50,000/- each under Section 302 IPC read with Section 120 B IPC. In default of payment of fine, the defaulting convict shall undergo further RI of one year without any remission. Convict Javed @ Akil is further sentenced to undergo RI of seven years u/s 27 Arms Act and the convict Mahesh Kumar (Tomar) is awarded RI of three years u/s 25 Arms Act. However, all sentences shall run concurrently. The period of detention in jail as under trial will be set off against these sentence awarded to the convicts in term of Section 428 Cr.P.C. Warrants be prepared accordingly.
Announced and Signed in open Court on : 15.1.2015 (Hemani Malhotra) Addl.Sessions Judge 05/C/Delhi State Versus Mahender Nigam and Others 177/177