Delhi District Court
State vs . 1. Ishwar, on 1 August, 2013
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE: FTC: E-COURT : KARKARDOOMA
COURTS: DELHI.
SESSIONS CASE No. 84/10
FIR No. 423/2009
U/S: 302/394/397/411/120-B/34 IPC
PS: New Ashok Nagar
State Vs. 1. Ishwar,
S/o Sh. Kishori Pal,
R/o Village Kalanjari,
PS Jami Distt. Meerut,
U.P.
2. Raj Kumar @ Raju,
S/o Sh. Gyan Chand,
R/o 49-B, DDA Flats,
Mata Sundri Road,
Delhi.
3. Pradeep, S/o Sh. Dal Chand,
R/o 55-C, DDA Flats,
Mata Sundri Road, Delhi.
FIR No. 423/09 Page 1 of 40
Date of Institution : 01.07.2010
Reserved on : 19.06.2013
Delivered on : 01.08.2013
JUDGMENT
1. The facts of the prosecution case are that on 08.10.2009, a PCR call was received that a dead body was lying near Hindon Canal between Kondli and Dharamshila Hospital. On this information, DD No. 11-B was recorded. The call was marked to SI Narender Kumar. He went at the spot with Constable Devraj and found the dead body having slit marks on the neck. The body could not be identified. Crime team inspected the spot. Photographs of scene of crime were taken. No eye witness was found at the spot. FIR was registered under Section 302 IPC and investigation was taken by Inspector Harpal Singh. The body was later identified as that of Sanjay Yadav, son of Sh. Rameshwar Yadav. After postmortem, the body was handed over to the relatives of the deceased. Statement of Surendra Yadav and Vinod Yadav, brothers of the deceased, were recorded under Section 161 Cr. PC. Surendra Yadav stated that he used to sell recharge coupons of different companies and that on 25.09.2009, he went to his village after handing over his business to the deceased and asked one Pawan Malpani to provide coupons to the deceased. On coming to know that Sanjay was missing, he FIR No. 423/09 Page 2 of 40 came to Delhi and came to know from Pradeep Gupta that the deceased along with co-accused Pradeep came to his shop on 07.10.2009 and that at about 8.30 pm, they took recharge coupons and went away. He also stated that deceased was having a motorcycle bearing No. DL1S-T-2534, a mobile phone make Nokia 1110, one bag containing cash and recharge coupons, golden chain and golden ring. Witness Pradeep Gupta also corroborated this fact that deceased along with accused Pradeep came to his shop on 07.10.2010 at about 8.30 pm and sold coupons of Rs. 3000/- in cash. Scaled site plan was got prepared from the Draftsman. Later, it was disclosed that the motorcycle of the deceased was found in the area of PS Sadar Bazar. The same was deposited under Section 66 D.P. Act. On 19.01.2010, the exhibits of the case were deposited at FSL Rohini. On 24.02.2010, accused Ishwar, Raj Kumar and Pradeep were arrested. Tata phone C-2205 belonging to accused Raj Kumar @ Raju, mobile phone Micromax belonging to accused Pradeep Kumar, Nokia mobile phone 2760 belonging to accused Ishwar and Nokia phone 1110 belonging to deceased Sanjay Yadav were recovered and deposited in the Malkhana. Confessional statements of accused were recorded. Accused Ishwar in addition to other facts also disclosed that in the first week of November 2009, Raj Kumar @ Raju, son in law of his sister in law came to him and handed over the stolen mobile phone make Nokia 1110 and he took the phone and started using FIR No. 423/09 Page 3 of 40 SIM No. 09897886119 at his village. Accused Pradeep Kumar in addition to other facts disclosed that he used to take recharge coupons from accused Sanjay on credit basis and this amounted to Rs. 20,000/-. Sanjay used to have Rs. 1 lakh cash and recharge coupons. He thought that by murdering and looting Sanjay, he has not to return the credit and would get cash and therefore a conspiracy was hatched and in pursuance of the conspiracy, Raj Kumar brought Indica car No. DL3C-AF-5321 and all of them reached Idgah Road and parked the car opposite Babar Telecom Shop. Sanjay was lured to sit on the backseat of the car with Pradeep and Kaushal. Kaushal put knife on Sanjay. After crossing Akshardham Temple Flyover, Sanjay was overpowered and strangulated with a nylon rope. His personal belongings including golden chain, ring, mobile phone, bag containing cash and coupons were robbed. His body was thrown near a pipeline and the neck was slit. In pursuance of the disclosure, scene of crime was identified by the accused persons. On the pointing out of the accused, Indica car No. DL3C-AF-5321 was seized. Robbed golden chain was recovered from the possession of accused Pradeep while the robbed mobile phone Nokia 1110 was recovered from the possession of accused Ishwar. Accused Kaushal could not be arrested. The call detail record was collected. The Indica car seized in the case was taken to expert at FSL Rohini to lift any physical/biological clues. Manoj Yadav, last seen witness who invited deceased Sanjay Yadav and FIR No. 423/09 Page 4 of 40 accused persons namely Pradeep, Raju and Kaushal on the birthday of his son, identified them at police station. The judicial TIP of golden chain was conducted. Statements of witnesses were recorded. Investigation was completed and charge sheet was filed under Section 394/397/302/311/34/120-B IPC.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 302 IPC was framed against accused Raj Kumar and Pradeep. Separate charge under Section 411 IPC was framed against accused Ishwar. They pleaded not guilty.
3. In order to prove its case, prosecution examined 30 witnesses. PW-1 is Rajender Prasad. He is the owner of Indica car. He deposed that accused Raj Kumar is known to him as he lives in the same colony. He stated that accused Raj Kumar had taken his Indica car two days prior to Diwali in the year 2009 telling that his brother in law has died and he has to go there. He deposed that Raj Kumar took the vehicle in the evening and returned it next morning. He further deposed that police met him after six months and seized his car vide memo Exbt. PW-1/A. PW-2 is Sh. Pradeep Kumar Gupta, owner of Shyam Telecom at Pahar Ganj. He deposed that he deals in recharge coupons of all the telecom companies and that Surender used to FIR No. 423/09 Page 5 of 40 supply him recharge coupons for the last 3-4 years. He further stated that about one year back, Surender went to his village. His brother started coming to his shop for the delivery of recharge coupons. He further deposed that brother of Surender visited his shop only once and at that time he was accompanied by accused Pradeep. He stated that brother of Surender along with Pradeep came to his shop at about 7.30 - 8.00 pm and he purchased recharge coupons worth Rs. 2500/- - 3000/-. PW-2 was declared hostile and was cross examined by the learned Additional PP. In the said cross examination, he admitted that on 03.10.2009, one Sanjay claiming to be the brother of Surender, came at his shop with Pradeep. He further stated that he told the police that on 07.10.2009, again Sanjay and Pradeep came at his shop and purchased recharge coupons worth Rs. 3000/- from them and that they had taken cold drink after buying from the neighbouring shop and on the next day i.e. 08.10.2009, three boys named Vinod, Pradeep and one other person came at his shop and enquired about Sanjay who was missing and he told that he does not know where Sanjay had gone.
PW-3 is David Kumar, Private Photographer. He had taken the photographs of the dead body from different angles. The photographs are Exbt. PW-3/A1 to PW-3/A7.
PW-4 is Surender Yadav. He is the brother of the FIR No. 423/09 Page 6 of 40 deceased. He deposed that he used to sell the recharge coupons of mobile phones and that his brother Sanjay came to Delhi about three years back and started working with him during last 2-3 months. He further stated that on 25.09.2009, he went to the village after handing over all the recharge coupons and his business to Sanjay. He further stated that he used to purchase the recharge coupons from Pawan Kumar Malpani and used to sell recharge coupons to accused Pradeep. On 08.10.2009, he received a call from his brother Vinod Yadav from Delhi informing him that Sanjay had not returned to the room/house. From the village, he started contacting his customers but no one told him if his brother Sanjay had met them. He then came to Delhi and met all the shopkeepers who were his customers and searched for his brother Sanjay but could not find him. He stated that he met Pradeep, owner of Shyam Telecom and he told him that on 07.10.2009 his brother Sanjay came at his shop with accused Pradeep at about 8.30 pm to give recharge coupons. He further deposed that on 11.10.2009, he and his brother Vinod received a call from PS Pahar Ganj regarding the recovery of a dead body with similar description and therefore on 12.10.2009, he and his brother went to LBS Hospital Mortuary and there they identified the body of his brother Sanjay. He further stated that he had bought the chain and golden colour ring from Vaishno Devi for Sanjay which he used to wear. According to him, Sanjay was also having a motorcycle make Hero Honda Splendor bearing No. FIR No. 423/09 Page 7 of 40 DL1S-T-2534 and he identified the chain and ring of his brother Sanjay in court. PW-4 was declared partly hostile and was cross examined by the learned Additional PP and in the said cross examination he admitted that he had identified only golden colour chain and not the ring in the TIP.
PW-5 is Sh. M.N. Vijayan, Nodal Officer, Tata Tele Services. He proved the call detail records of mobile phone No. 9211313638 as Exbt. PW-5/A and also proved the Certificate under Section 65-B of the Evidence Act as Exb. PW-5/C. PW-6 is Manoj Yadav. He deposed that deceased Sanjay Yadav was his distant relative and they often used to meet with each other and that on 07.10.2009 at about 8.00 - 9.00 pm, he went to Sadar Bazar from Karol Bagh to buy some articles for the birthday celebration of his son. At Idgah Road at the corner of Baba Telecom, he saw Sanjay Yadav with accused Pradeep, Raju and Kaushal. He stopped there and talked with them. He deposed that accused Pradeep was known to him and he used to meet him as Sanjay and his brother Surender used to supply recharge coupons to him. Sanjay had also introduced Raju and Kaushal who were standing there with him. He stayed there for 5-7 minutes and thereafter left for Sadar Bazar. An Indica car was also parked at a nearby place where they were standing. He further deposed that on 08.10.2009, he went to Jharkhand at his FIR No. 423/09 Page 8 of 40 native place as his mother was sill. After about 3-4 months, he returned back to Delhi. One day Surender met him in Sadar Bazar and told him that Sanjay Yadav has died on 07.10.2009. He then recollected that on the said date, Sanjay Yadav had met him. He told him all the facts regarding his meeting with Sanjay and Pradeep to Surender. From Surender, he came to know that the case regarding the murder of Sanjay was with Harpal Singh at PS New Ashok Nagar. Next day, he went to PS New Ashok Nagar where Raju and Pradeep were already sitting. Harpal Singh told him that accused Raju and Pradeep have been arrested in the case.
PW-7 is HC Sonu Kaushik, Assistant Draftsman, Crime Branch. He took the measurements of the place of incident and prepared rough notes on the basis of which he prepared scaled site plan Exbt. PW-7/A. PW-8 is Dr. Vinay Kumar Singh from LBS Hospital. He had conducted the postmortem of the deceased. His report is Exbt. PW-8/A. PW-9 is Ram Hari Singh, Sub Divisional Engineer. He produced Customer Application Form of mobile phone No. 9968465465 in the name of Jagdev Kumar. He proved the copy of the driving license of the applicant and the CDRs of the mobile FIR No. 423/09 Page 9 of 40 phone.
PW-10 is Nakul, MTNL Distributor. He deposed that Arjun and Pradeep used to work with him in the same office and that deceased Sanjay joined their office three years back but three months prior to his death, Sanjay left the service and started living with his brother Surender at Teliwara and started working with his brother for the sale of recharge coupons. He deposed that on 08.10.2009, Pradeep told him that he had received a call from Vinod that mobile of Sanjay was switched off since 08.10.2009. He along with Pradeep then went to Teliwara to meet Vinod. Thereafter, they went to the house Sanjay but his room was found locked. The lock was broken by Vinod. Pradeep took a photograph of Sanjay from there and went to police station to lodge the complaint. On 12.10.2009, he received a call from Padeep that Sanjay has died. On 13.10.2009, he went to LBS Hospital.
PW-11 is Pawan Kumar Malpani. He stated that he is doing the business of recharge coupons in partnership with Inder Dev. He stated that Surender worked with him for the last 6-7 years and that on 25.02.2009, Surender went to his village and asked him to give recharge coupons to his brother Sanjay and accordingly he started giving recharge coupons to Sanjay. He further deposed that Sanjay visited his office two times on FIR No. 423/09 Page 10 of 40 17.10.2009 and took recharge coupons of Rs. 39,281/- in the morning and same day in the evening, he took recharge coupons of Airtel worth Rs. 40,866/- from him. On 08.10.2009 at about 9.00
- 9.30 am, he made a call to Sanjay on his mobile to take orders but he did not pick up the phone. He then called Vinod, brother of Sanjay and told him that Sanjay was not picking the phone. Vinod asked him to deliver the recharge coupons at his room. He sent Inder Dev to the room of Sanjay but the room was locked. On 12.10.2009, Inder Dev received a phone call from LBS Hospital that Sanjay has been murdered.
PW-12 is HC Gajender Singh, Duty Officer. He had recorded the FIR Exbt. PW-12/A. PW-13 is Sh. Lalit Kumar, the then MM. He had conducted the TIP of the case property i.e. one golden colour chain. He stated that witness Surender Yadav correctly identified the gold chain.
PW-14 is Sh. Vinod Yadav, brother of deceased Sanjay Yadav. He stated that on 25.02.2009, his brother Surender Yadav had gone to the village after handing over the business of recharge coupons to Sanjay Yadav. On 18.10.2009, he received a phone call from Pawan Malpani that Sanjay Yadav has not come to take the recharge coupons and his mobile phone was switched FIR No. 423/09 Page 11 of 40 off. He asked Pawan Malpani to go to the room of Sanjay Yadav. Pawan Malpani again made a phone call to him and told him that Sanjay Yadav was not at his room and the room was locked. He then rushed to the room of Sanjay Yadav and found the room locked at about 2.00 -2.30 pm. They broke the lock of the room and took one photograph of Sanjay Yadav and went to Police Station Sadar Bazar and told the police officials that Sanjay was missing from Pahar Ganj. He further deposed that he called accused Pradeep near PS Sadar Bazar and he told him that Sanjay Yadav was with him till 8.30 pm on 07.10.2009 and that he had taken cold drink with him. Then he along with accused Pradeep went to PS Pahar Ganj where missing report of his brother Sanjay Yadav was recorded at about 9.30 pm. He further deposed that on 10.10.2009, his cousin Pradeep received a call from PS Pahar Ganj regarding the recovery of a dead body similar to the description of his brother. Then he along with Surender went to PS Pahar Ganj and from there along with police went to LBS Hospital Mortuary. They identified the body of Sanjay Yadav vide Exbt. PW-14/A. After postmortem, the body was handed over to them. PW-14 was also declared partly hostile and was cross examined by the learned Additional PP and in the said cross examination, he admitted that Mark PW-14/PX1 is the copy of missing report of Sanjay Yadav. He admitted that at the time of missing, his brother Sanjay was also carrying a mobile phone make Nokia 1110 bearing SIM No. 9968465465 and was also FIR No. 423/09 Page 12 of 40 wearing a golden colour chain in his neck and a ring of stone in his finger.
PW-15 is Constable Dev Raj Singh. He had assisted SI Narender Kumar in the investigation of the case. On 08.10.2009 on receipt of DD No. 11-B, he along with SI Narender Kumar reached Hindon Canal near pipeline, Hindon Canal Cut Service Road where the dead body of a male with a cut mark on the neck was lying. The public persons present there could not find the body. SHO and other staff reached at the spot but no one could identify the body. Crime team was called at the spot. Photographs were taken. On the personal search of the deceased, an iron key with word "Harrison" engraved on it both in English and Hindi was recovered from his pant. There was a locket of Shivji in a Dori of red colour around the neck of the deceased. Two phone numbers were written on the palm of the deceased. SI Narender then prepared the Rukka and gave it to him for taking it to the police station for the registration of the FIR. After registration of the FIR, the case was assigned to Inspector Harpal Singh who came at the spot and got the body preserved at LBS Hospital Mortuary. He stated that on 12.10.2009, the body was identified by the brother of the deceased and after postmortem, the body was handed over to Vinod Yadav vide memo Exbt. PW-14/B. PW-16 is HC Pramod. He took viscera from the FIR No. 423/09 Page 13 of 40 Malkhana of the Police Station and deposited the same at FSL vide RC No. 8/21/10.
PW-17 is HC Satyavir, the then MHCM, PS Sadar Bazar. He deposed that on 17.01.2010, a motorcycle bearing No. DL1S- T-2435 Hero Honda Splendor which was lying deposited at the police station vide DD No. 50-A under Section 66 D.P. Act was handed over to Inspector Harpal Singh and Constable Dheeraj vide RC No. 2/21/20.
PW-18 is Manish Goel, MTNL Distributor dealing in new connections and recharge vouchers in the name of M/s. Goel Enterprises. He deposed that Sanjay Yadav had worked with him for 2 - 2 1/2 years but 2-3 months before his murder, he left his service. He further stated that Sanjay Yadav was also having mobile phone and he used to talk with him on his mobile phone from his mobile phone. PW-18 was declared hostile and was cross examined by the learned Additional PP and in the said cross examination, he stated that he does not remember if mobile phone No. 9968465465 was of Sanjay Yadav.
PW-19 is Ajay Sikri. He is the owner of mobile phone shop in the name and style of M/s. Ashi Telecom. He stated that Surender Yadav was having business dealings with him and when Surender Yadav had gone to his village, his brother Sanjay Yadav FIR No. 423/09 Page 14 of 40 came to his shop. He could not recollect the mobile number of Sanjay Yadav. He was also declared hostile and was cross examined by the learned Additional PP. In the said cross examination, he stated that he does not remember if mobile phone No. 9968465465 was of Sanjay Yadav.
PW-20 is Sanjeev Lakra, Nodal Officer, Reliance. He proved the Customer Application Form of mobile phone No. 9313040626 as Exbt. PW-20/A and the call details of the aforesaid mobile phone for the period 06.10.2009 to 08.10.2009 as Exbt. PW-20/B. PW-21 is W. Constable Vinod. She had proved the PCR form as Exbt. PW-21/A. PW-22 is SI Narender Kumar. On 08.10.2009 on receipt of DD No. 11-B Exbt. PW-22/A, he along with Constable Dev Raj reached the spot between Kondli Pul and Jal Board water pipe towards Dharamshila Hospital where he found the dead body of a young boy having cut mark on the neck. He stated that body could not be identified. He prepared the Rukka Exbt. PW-22/B on DD entry and sent the same at police station through Constable Dev Raj for the registration of the FIR. He then lifted the blood and earth control from the spot and seized the same vide memo Exbt. PW-22/C. After registration of the FIR, investigation was FIR No. 423/09 Page 15 of 40 conducted by Additional SHO Harpal Singh.
PW-23 is Constable Balle Ram, Dispatch Rider.He delivered the copy of FIR at the house of learned MM, DCP and Joint Commissioner.
PW-24 is HC Parmanand, MHCM. He proved the relevant entries of Register No. 19.
PW-25 is HC Lalit. He had produced the pullanda bearing the seal of HPS from Malkhana of the police station to the court of Sh. Lalit Kumar, MM for TIP.
PW-26 is Inspector Rajbir Singh Lamba. On 05.04.2010, the investigation of this case was entrusted to him. On 07.04.2010, he took Tata Indica car bearing No. DL3C-AF-5321 to FSL Rohini for obtaining physical clues if any. However, no clue was found. He recorded the statements of witnesses, collected the CDRs of five mobile phones and completed the investigation.
PW-27 is HC Satender and PW-29 is Inspector Harpal Singh. Inspector Harpal Singh is the IO of this case while HC Satender had assisted him in the investigation. After registration of FIR, both of them came at Hindon Canal Road on the backside of Varuna Enclave where the body of a young boy was lying with FIR No. 423/09 Page 16 of 40 cut mark on the neck. They deposed that the body could not be identified and was therefore sent to LBS Hospital after photographs. Site Plan Exbt. PW-29/A was prepared by Inspector Harpal Singh at the spot. The body was identified by Surender Yadav and Vinod Yadav on 12.10.2009. Inspector Harpal Singh collected the copy of missing report lodged at PS Pahar Ganj (DD No. 40-A) Mark PW-14/PX1. The inquest proceedings were conducted and after postmortem, the body was handed over to Vinod Yadav vide memo Exbt. PW-14/B. On 21.11.2009, PW-29 got prepared the scaled site plan from Constable Sonu. On 17.01.2010, on receipt of information, PW-29 went to Police Station Sadar Bazar and seized motorcycle vide memo Exbt. PW- 29/E. On 19.01.2010, the exhibits were sent to FSL Rohini. On 24.02.2010, PW-21 Inspector Harpal Singh along with PW-27 HC Satender, SI Hawa Singh, SI Dinesh, Constable Vijay and Constable Pawan left for investigation of this case. On reaching Police Headquarter, a secret information was received that one of the accused wanted in this case would come at Mata Sundari Road near Evane Ghalib. They reached there and made Nakabandi and after about five minutes accused Raj Kumar came from the side of Bal Bhawan. He was apprehended at the pointing out of the informer. On interrogation, he gave disclosure statement Exbt. PW-27/C. On his search, mobile phone make Tata Indicom C-2205 was recovered vide memo Exbt. PW-27/B. He was arrested in this case. Pursuant to his disclosure FIR No. 423/09 Page 17 of 40 statement, he got recovered Tata Indica car bearing No. DL3C- AF-5321 from DDA Flats, Mata Sundari Road. Statement of car owner Sh. Rajender Prasad was recorded. Accused Pradeep was then arrested on the pointing out of accused Raj Kumar from Mir Dard Road T Point. Accused Pradeep Kumar gave disclosure statement Exbt. PW27/F. A golden colour chain was recovered from the neck of Pradeep which he disclosed to be that of deceased Sanjay Yadav. The chain was seized vide memo Exbt. PW-27/G. The mobile phone make Micromax C-21 was seized from accused Pradeep vide memo Exbt. PW-27/H. Accused Raj Kumar then led the police team to Ajmal Khan Road, Karol Bagh from where at his instance accused Ishwar was arrested near Mc Donald Restaurant. The disclosure statement of accused Ishwar was recorded which is Exbt. PW-27/K. Two mobile phones make Nokia 1110 belonging to the deceased and another mobile phone make Nokia 2760 were recovered from accused Ishwar vide memos Exbt. PW-27/L and Exbt. PW-27/M. Accused Pradeep and Raj Kumar then pointed out the place where the body was dumped vide Exbt. PW-27/N to Exbt. PW-27/O. PW-29 further deposed that one Manoj Yadav met him at the Police Station. He claimed that he was a distant relative of the deceased. His statement was recorded. On 16.03.2010, an application was filed for the TIP of golden colour chain. The TIP was conducted on 12.03.2010. on 23.03.2010, letters were sent to service providers for providing the CDRs and ownership of mobile phones.
FIR No. 423/09 Page 18 of 40PW-28 is HC Umesh from PS Sadar Bazar. He seized the motorcycle under Section 66 D.P. Act vide memo Exbt. PW- 28/A. PW-30 is Aftab. He is the owner of bakery shop who passed the information to the Police Station regarding the motorcycle parked near his shop.
4. Statements of accused were recorded under Section 313 Cr. PC wherein they stated that they were innocent. They did not lead any defence evidence.
5. The homicidal death of Sanjay Yadav is not under challenge. PW-8 Dr. Vinay Kumar Singh conducted the postmortem examination of the body on 12.10.2009 and proved postmortem report Exbt. PW-8/A. Sanjay Yadav had sustained five external injuries and as per the opinion of the doctor, the cause of death was Asphyxia due to ligature strangulation and injuries No. 1 to 3 and 5 were ante-mortem in nature and were recent in duration. The injuries No. 1, 2 & 3 were individually and collectively sufficient to cause death in the ordinary course of nature while injury No. 4 was caused by sharp edged weapon/instrument. Thus, undoubtedly, it is a case of culpable homicide.
FIR No. 423/09 Page 19 of 406. The prosecution case against accused Raj Kumar and Pradeep is based on circumstantial evidence. Prosecution is relying on the following circumstances to prove its case:-
(i) last seen evidence; (ii) recovery of golden colour chain from accused Pradeep; (iii) robbery as motive; (iv) call detail records of the mobile phone; v) Recovery of Indica car used in the commission of crime.
7. The learned defence counsels have argued that none of the circumstances from which an inference of guilt of accused can be drawn, have been proved. The challenge pertains not only to the motive but also the recovery of chain at the instance of accused Pradeep. On the other hand, the argument of learned Additional PP is that the testimony of last seen witness i.e. PW-6 Manoj Yadav inspires confidence and accused has not proved his defence as to when he parted company from the deceased and therefore last seen evidence coupled with the recovery of golden colour chain from the possession of accused Pradeep supported by the evidence of call detail records conclusively proves the guilt of the accused and therefore accused Raj Kumar and Pradeep are liable to be convicted.
8. It is a well settled law that where a case rests squarely on circumstantial evidence, inference of guilt can be justified only FIR No. 423/09 Page 20 of 40 when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence which has been well settled by the Hon'ble Supreme Court. In the matter of Sharad Birdichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116, the Hon'ble Supreme Court, inter alia, observed thus:
"153...... the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
(2) the facts so established should be
consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so FIR No. 423/09 Page 21 of 40 complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
9. The above enunciated principles of law have been reiterated by the Supreme Court in the matter of Tanviben Pankajkumar Divetia Vs. State of Gujarat (1997) 7 SCC 156, wherein it was observed thus:
"45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that FIR No. 423/09 Page 22 of 40 conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true"
and "must be true" and the same divides conjectures from sure conclusions."
10. In the light of the above enunciated principles of law, the court shall now proceed to analyse whether prosecution has been able to satisfy the above enunciated circumstances. PW-6 Manoj FIR No. 423/09 Page 23 of 40 Yadav is the witness of last seen. As per prosecution version reiterated by this witness, at about 8.00 - 9.00 pm at Idgah Crossing at the corner of Baba Telecom, he saw Sanjay Yadav with Pradeep and two more boys namely Raju and Kaushal. He identified accused Pradeep and Raj Kumar @ Raju in court. He stated that Sanjay Yadav was his distant relative and he also knew accused Pradeep. He further stated that Sanjay had introduced Raju and Kaushal standing there with him at that time. The learned defence counsel has challenged the testimony of this witness on the ground that his statement was recorded by the police after more than four months. It is thus stated that he is a planted witness of the police to work out a blind case. However, the learned Additional PP relying on the testimony of PW-6, has argued that Manoj Yadav had gone to his native village on 08.10.2009 since his mother was ill and he returned back to Delhi after 3-4 months and thereafter reported the matter to police after coming to know about the death of Sanjay from his brother Surender. It is stated that delay in recording the statement of Manoj Yadav is duly explained and there is no reason to disbelieve his testimony.
11. In cross examination, PW-6 stated that Sanjay and Surender were his distant relatives and that Sanjay visited his house many times. Sometimes he used to meet Sanjay after two days and sometimes after two months. He admitted that they used FIR No. 423/09 Page 24 of 40 to talk with each other on telephone. However, there was no fixed frequency of calling each other. He further stated that on 23.02.2010 Surender, brother of deceased, met him at Sadar Bazar. They remained together for about 30-45 minutes. Surender did not make any phone call from there in his presence. He stated that he did not visit the police station with Surender. He further stated in cross examination that on 24.02.2010, he visited the police station at 8.30 pm and at that time, Raju and Pradeep were already in the custody of the police. In further cross examination, he admitted that when he told Surender that he had seen Sanjay in the company of accused, neither he went to the police station to make any complaint nor Surender went to the police station in his presence. He admits that at that time, both of them were having mobile phones. He admits that Surender did not take him to police station on 23.02.2010. In further cross examination, he states that he had a talk on telephone with Vinod and Surender on that day after he left Sadar Bazar but Vinod did not ask him to come to police station to make complaint. He stated that he did not ask Vinod and Surender to accompany him to police station on 24.02.2010. He could not explain as to why he had not gone to police station on 23.02.2010 or during day time on 24.02.2010.
12. It is evident from the testimony of PW-6 Manoj Yadav that he approached the police after more than four months of the incident to tell that he had seen the deceased alive in the FIR No. 423/09 Page 25 of 40 company of accused Pradeep and Raj Kumar. He has claimed that on the next day only, he went to the village and returned back after 3-4 months. IO has not collected any evidence to prove that PW-6 had gone to village. He did not record the statements of wife and children of Manoj to confirm his visit to his native village. In cross examination, IO admits that he even did not record the statement of landlord of Manoj and did not verify the genuineness of the statement of Manoj by any other evidence. No call detail record of PW-6 was obtained to verify the fact that he had gone to the village or even to verify his presence at Idgah Crossing on 07.10.2009 at the relevant time i.e. 8.00 - 9.00 pm.
13. Prosecution is also relying on the statement of PW-2 Pradeep Kumar Gupta, owner of Shyam Telecom who stated that the brother of Surender visited his shop with Pradeep. However, this witness was unable to tell the date, month and year. He even did not tell the name of the deceased in his examination in chief. He stated that after three days, a relative of Surender accompanying Pradeep came at his shop to enquire about the brother of Surender. PW-2 was cross examined by the learned Additional PP and in the said cross examination, he stated that on the next day i.e. 08.10.2009, three boys namely Vinod, accused Pradeep and one other person whose name he does not know, came at his shop and enquired about Sanjay, who was missing. When cross examined by the learned defence counsel, PW-2 FIR No. 423/09 Page 26 of 40 stated that he came to know the names of Vinod, Pradeep and Manoj Yadav from the police. He stated that he asked Pradeep, Vinod and Manoj to lodge complaint at the police station if Sanjay is missing. He further stated that on his asking, Pradeep told him that Sanjay had gone to his house and he went to his own house. He further states in cross examination that Vinod and Manoj had not made any allegation against accused Pradeep. If the testimony of PW-2 Pradeep Kumar Gupta is to be believed, PW-6 Manoj Yadav came at his shop on 08.10.2009 along with accused Pradeep and Vinod and therefore the same falsifies the testimony of PW-6 Manoj Yadav that he had gone to Jharkhand on 08.10.2009 and therefore was not knowing that Sanjay Yadav has died. Thus, it appears from the testimony of PW-2 that PW-6 was also involved in the search of Sanjay Yadav on 08.10.2009 but despite this, he made no complaint or statement to the police that he had last seen the deceased alive in the company of accused Pradeep and Raj Kumar.
14. As per the testimony of PW-6 Manoj Yadav, he came to know from Surender, brother of deceased at 12.00 pm about the murder of Sanjay but surprisingly, he does not go to the police station that day or even till next evening. If PW-6 had told Surender regarding his meeting with Sanjay, Pradeep and Raj Kumar to Surender, there is no reason why Surender would not have taken him or advised him to inform the police immediately.
FIR No. 423/09 Page 27 of 40There is also no reason why PW-6 waited till 8.30 pm next day before going to the police station and reporting what he saw more than four months back. Accused were arrested on 24.02.2010. As per arrest memos, the time of arrest of accused Raj Kumar is 3.00 pm and that of accused Pradeep is 5.30 pm. When PW-6 reached the police station, both these accused were already in police custody and he identified them at the police station. Can it be regarded as a sheer coincidence that PW-6 comes to the police station after more than four months on the same day when the accused are arrested?
15. In the case of State Vs. Ravi @ Munna 2000 (1) JCC (Delhi) 115, the Hon'ble High Court disbelieved the testimony of last seen witness who did not inform the police and the relations of the deceased and kept mum for 18 days. The Hon'ble Court held that such witness is liable to be discarded and cannot be believed. Similarly, in the case of N. Swamy alias Puttaswamy Vs. State of Karnataka 1998 (2) Crimes 271, the witnesses who claimed to have seen the appellant and deceased together on the date of occurrence were examined by the investigating officer after two and a half months after the arrest of the accused. The court therefore held that it would be difficult to place reliance on their testimonies.
16. In my view, the testimony of PW-6 Manoj Yadav is FIR No. 423/09 Page 28 of 40 doubtful and therefore it would be difficult to place reliance on his testimony. Even otherwise, the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstance the victim suffered the death or should own the liability for the homicide. The last seen theory comes into play where time gap between point of time when accused and deceased were last seen alive and deceased was found dead was so small that possibility of any person other than the accused being author of the crime becomes impossible.
17. The first information regarding the discovery of body was received at Police Station New Ashok Nagar on 08.10.2009 vide DD No. 11-B Exbt. PW-22/A at 06.12 hours. The postmortem of the body was conducted on 12.10.2009. The postmortem was started at 12.00 noon. As per postmortem report Exbt. PW-8/A, the time since death was 4-5 days. Thus, as per medical evidence, Sanjay Yadav died between 12.00 pm on 07.10.2009 to 12.00 pm on 08.10.2009. No exact time of death of deceased FIR No. 423/09 Page 29 of 40 has come on record. As per the testimony of PW-2 Pradeep Kumar Gupta, the deceased visited his shop at 7.30 - 8.00 pm on 07.10.2009 while as per PW-6, he saw him alive till about 8.00 - 9.00 pm meaning thereby that Sanjay Yadav died between 9.00 pm on 07.10.2009 to 6.12 am on 08.10.2009 but no exact time of death has come. There is a gap of eight hours between last seen time and discovery of body. Thus, the possibility of any person other than the accused having caused death cannot be ruled out.
18. In the case of Ram Chander @ Ganju Vs. State of Delhi 2011 (3) JCC 1586, the deceased was last seen in the company of appellant at about 9.00 - 10.00 pm on 24.06.2005. The postmortem report indicated that the time of death was 1.00 am on 25.06.2005 and thus there was a time gap of 3 to 4 hours between last seen alive and the death of the deceased but the Hon'ble High Court held that the time gap of 3 to 4 hours was sufficient to allow intervening circumstances and other persons to have entered into the scene and cause death of the deceased. It was held that the mere fact that the deceased left in the company of the appellants by itself cannot be regarded as sufficient to enable the court to arrive at a conclusion that it is the appellants who must have inescapably caused the death of the accused. Similarly, in the case of Deepak Chadha Vs. State 2012 (1) JCC 540, the deceased and appellants were last seen together at 7.30 pm when the two left the house of the deceased. The deceased FIR No. 423/09 Page 30 of 40 was found grievously injured at a public street at about 10.15 pm. The Hon'ble Court held that the possibility of someone else being the assailant cannot be ruled out.
19. In the present case, PW-6 saw the deceased alive in the company of accused Pradeep and Raj Kumar at a busy public place at Idgah Crossing at 8.00 - 9.00 pm. The body was recovered at a far away place at Service Road near Hindon Canal between Kondli and Dharamshila Hospital. Thus, there is no proximity of time and place and hence for this reason also the possibility of any person other than the accused having caused death cannot be ruled out.
20. In view of my aforesaid discussion, I am of the opinion that neither the evidence of last seen is trustworthy nor the same has proximity with the time and place to the recovery of body and therefore the circumstance of last seen evidence is not proved.
21. The next circumstance on which the prosecution relies against accused Pradeep is the recovery of a golden chain allegedly belonging to deceased Sanjay. PW-29 Inspector Harpal Singh deposed that on 24.02.2010, he first apprehended accused Raj Kumar on the basis of secret information and recovered a mobile phone from his possession. Pursuant to his disclosure statement, he recovered a Tata Indica car from Mata Sundri Road FIR No. 423/09 Page 31 of 40 and thereafter arrested accused Pradeep from Mir Dard Road T Point. He deposed that accused Pradeep was wearing a golden colour chain in his neck which he disclosed to be that of deceased Sanjay Yadav. Admittedly, there is no public witness of recovery of chain. Even after the recovery of chain, no public witness was joined. The non-joining of public witnesses as attesting witnesses to the disclosure statement as well as the recovery smacks of malafide and makes prosecution version doubtful. In taking this view, I am supported by the judgment of Chander Pal & Ors Vs. State 1998 (3) CC Cases HC 215, State of Haryana Vs. Ram Singh 2002 SCC Crl. 351 & Girdhari Vs. State (NCT of Delhi) 2012 (1) RCR 951.
22. Assuming for the sake of arguments, if it is accepted that the golden colour chain was recovered from the possession of accused Pradeep, the next question which comes to mind is whether the chain belonged to deceased Sanjay Yadav. Prosecution relies on the testimony of PW-4 Surender Yadav to prove that deceased was wearing chain at the time of incident. PW-4 deposed that he had brought a chain and ring of golden colour from Vaishno Devi for Sanjay who used to wear these articles. He identified the recovered chain in TIP. In cross examination, he stated that he had bought the chain for Rs. 30- 35/- from a roadside stall at Vaishno Devi about two months prior to the murder. He stated that there was no identification mark on FIR No. 423/09 Page 32 of 40 the chain when it was purchased. He admitted that he had no documentary proof to show that he had gone to Vaishno Devi. He admits that he had not given the description and metal with which the chain was made to the IO in his statement dated 12.10.2009. He further stated that he had met accused Pradeep 10-12 times before his arrest after coming to Delhi but could not tell if he had seen accused Pradeep wearing chain before his arrest. PW-29 Inspector Harpal Singh stated in cross examination that Surender gave the colour of the chain but did not tell the weight, design and metal of the chain. He admitted that the value of the chain should be Rs. 10/- or 20/-.
23. Thus, it can be seen from the evidence that there is no proof of purchase of the chain. The chain was hardly worth Rs. 30/- - 35/-. It was an old chain. PW-14 Vinod Yadav, brother of deceased, does not depose in his examination in chief that Sanjay Yadav was wearing any chain in his neck at the time when he went missing. In the missing report lodged by him vide DD N. 40- A at PS Pahar Ganj Mark PW-14/PX1, there is no mention that Sanjay was wearing any such chain. The chain was not of much value, it was an artificial chain and therefore there was no reason whatsoever in the natural scheme of things for accused Pradeep to have retained the same by wearing it in the neck particularly when he knew even the brothers of the deceased and has been meeting the IO in connection with the investigation of the case. In FIR No. 423/09 Page 33 of 40 the normal course of events, any item which would link a perpetrator of a crime with the crime would be disposed of by a criminal at the earliest opportunity. This is not so in the present case and therefore it appears to be quite improbable that accused Pradeep would have kept wearing the chain thereby inviting the risk of same being identified by the brothers of the deceased and getting caught by the police. For all these reasons, there is a serious doubt with regard to the recovery of chain. The recovery of chain from accused Pradeep was one of the most important circumstance in the case but prosecution has failed to prove the same beyond doubt.
24. In the case of State of Punjab Vs. Sarup Singh 1998 (1) Crimes 83 (SC), the trial court convicted the respondent on evidence of deceased and accused were last seen together and recovery of currency notes and wrist watch of deceased at the instance of accused. In that case, recovery was affected in the presence of maternal grandfather of the deceased and not in the presence of any independent witness. For this reason, the High Court did not think it safe to place reliance on the recovery evidence. The Hon'ble Apex Court held that circumstance of last seen together was not sufficient to draw inference of guilt and maintained the acquittal order passed by the High Court. In the present case, the circumstances of last seen and recovery are doubtful.
FIR No. 423/09 Page 34 of 4025. The question of motive is of great importance in a case based on circumstantial evidence. As per the disclosure statement of accused Pradeep (Exbt. PW-27/F), the deceased used to have in his possession about 1 lakh Rupees cash and recharge coupons and he himself was to pay Rs. 20,000/- to him and therefore he thought that he would rob Sanjay Yadav and kill him and thereby he would not have to pay the money to Sanjay and would rather get the cash. The disclosure statement itself is inadmissible in evidence. Nothing emerged during trial which may prove as to how much cash and recharge coupons Sanjay Yadav was having. No record of recharge coupon in possession of Sanjay Yadav has been collected. Admittedly, recharge coupons and robbed cash have not been recovered from either accused. Prosecution is relying only on the recovery of a golden colour chain of the deceased which is hardly of any value which may prompt any person to commit murder. Thus, prosecution has failed to establish ostensible motive of accused to murder Sanjay Yadav.
26. The next circumstance on which the prosecution relies is the call detail record. PW-4 Surender Yadav stated that the number of mobile phone of his brother Sanjay was 9968465465. As per Customer Application Form Exbt. PW-9/A, this phone is in the name of of Jagdev Kumar. Admittedly, Jagdev Kumar has not been examined by the prosecution to prove that he had FIR No. 423/09 Page 35 of 40 authorized the use of the aforesaid number to Sanjay Yadav. The call detail record Exbt. PW-9/B proves that at 7:43:41 pm, a call was received at mobile phone No. 9968465465 from mobile phone No. 9313040626. PW-9 did not produce the Cell ID Chart, so the location of mobile phone No. 9968465465 is not proved.
27. The CDR of mobile phone No. 9313040626 recovered from accused Pradeep is Exbt. PW-20/B. It may be seen from the CDR that as many as four calls were exchanged between the aforesaid phone of Pradeep with mobile No. 9968465465 between 19:5:19 to 20:6:16 on 07.10.2009. Six calls were exchanged between accused Pradeep and Raj Kumar between 20:12:43 to 20:59:05 on 07.10.2009. The location of mobile phone of Pradeep during this period was Bengali Market, Desh Bandhu Gupta Road, Sadar Bazar, Jhandewalan and R.K. Ashram.
28. The CDR of mobile phone No. 9211313683 recovered from accused Raj Kumar is Exbt. PW-5/A but the Cell ID Chart has not been produced and therefore the location of Raj Kumar during the calls exchanged with co-accused Pradeep is not known.
29. The call detail records do not prove that accused Pradeep and Raj Kumar were together with deceased Sanjay Yadav at any point of time and thus the evidence of call detail FIR No. 423/09 Page 36 of 40 records is of no help in establishing the guilt of the accused.
30. Prosecution is also relying on the recovery of Indica car which was used in the commission of offence. It has been argued by the learned Additional PP that PW-1 Rajender Prasad has deposed that accused Raj Kumar had taken his Indica car in the evening and returned it next morning and the said car was recovered at the instance of accused Raj Kumar from the possession of Rajender Prasad. However, PW-1 does not give the date and month on which the car was taken by Raj Kumar. PW-6 Manoj Yadav has deposed that the Indica car was parked at a nearby place where he last saw the deceased in the company of accused but he did not tell the number of the Indica car. PW-26 Inspector Rajbir Singh Lamba took the recovered Indica car to FSL for obtaining physical clues if any but the FSL result is negative. No blood stains/biological clue material could be detected from the car. Thus, it is not proved that the recovered Indica car was used in the commission of offence. Hence, recovery of Indica car at the instance of accused Raj Kumar is of no consequence.
31. So far as accused Ishwar is concerned, charge against him is only under Section 411 IPC with regard to recovery of mobile phone of deceased Sanjay Yadav. If the testimony of PW- 29 is to be believed, accused Ishwar was arrested pursuant to the FIR No. 423/09 Page 37 of 40 disclosure statement made by accused Raj Kumar from Ajmal Khan Road, Karol Bagh and on his search, two mobile phones were recovered from his possession, one of them was of make Nokia 1110 stated to be belonging to the deceased and the same was seized vide memo Exbt. PW-27/L. The wireless message flashed for the search of mobile phone and motorcycle contains the particulars of the mobile phone make Nokia 1110 with IMEI No. 0356281017919220. The seizure memo shows that mobile phone recovered from accused Ishwar had the same IMEI number. PW-4 Surender Yadav identified the mobile phone Exbt. P-1 with aforesaid IMEI number to be of his deceased brother Sanjay. However admittedly, no bill or proof of purchase of mobile phone has been seized or produced on record. IO admits that Surender and Vinod did not give the ownership proof of mobile phone or purchase of SIM by the deceased. How then the IO came to know of the IMEI number of mobile phone of Sanjay Yadav is not known. PW-4 Surender Yadav stated that number of mobile phone of Sanjay was 9968465465 which was used in a mobile phone make Nokia 1110. PW-9 Ram Hari Singh, Sub- Divisional Engineer produced Customer Application Form with regard to mobile No. 9968465465 which proves that the said number has been issued to one Jagdev Kumar. IO himself admits in cross examination that during investigation, he found from the call details that the aforesaid mobile phone was not in the name of deceased. Thus, there is no evidence that mobile phone make FIR No. 423/09 Page 38 of 40 Nokia 1110 allegedly recovered from accused Ishwar belonged to the deceased. Moreover, mobile phone was not sealed by the IO at the spot and was deposited as such in the Malkhana and when produced in court, it was in an unsealed condition. The mobile phone was identified in court for the first time by PW-4. He did not give the IMEI number of the mobile phone in his examination in chief. In cross examination, he stated that he was not aware about the IMEI number of the mobile phone of his brother and had not given the same to the police. Similar looking mobile phones of the same make are easily available in the market and therefore it is not known as to how he was able to identify the mobile phone in court. Hence, in my view, the recovery of mobile phone from accused Ishwar is doubtful and prosecution has failed to prove that recovery is connected with accused.
32. In view of my aforesaid discussion, I am of the opinion that prosecution has failed to prove any incriminating circumstance against accused. Prosecution has also failed to prove the charge Section 411 IPC against accused Ishwar beyond doubt. The court is conscious that a grave and heinous crime has been committed but when there is no satisfactory proof of guilt, the court has no other option but to give benefit of doubt to accused and I am constrained to do so in this case. The accused are accordingly acquitted. Accused Raj Kumar and Pradeep who are in judicial custody be released if not wanted in any other FIR No. 423/09 Page 39 of 40 criminal case. File be consigned to Record Room.
(RAVINDER DUDEJA) ASJ/FTC/E-COURT/SHAHDARA/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 01.08.2013.
FIR No. 423/09 Page 40 of 40