Delhi District Court
State vs 1 Akhil Ahuja, on 8 July, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0028772008
Sessions Case No. 14/1/08
FIR No. 103/2001
PS Tilak Nagar
U/s 364A/302/201/202/34 IPC
State Versus 1 Akhil Ahuja,
Son of Sh. Ajay Kumar,
Resident of H-30, Greater Kailash-II
New Delhi.
2 Kamal Prasad Bhandari,
Son of Sh. Dasrath Bhandari,
Resident of S-368,
Greater Kailash-II, New Delhi.
3 Sizauddin @ Shiyazuddin,
Son of Sh. Jamaludin,
Resident of A-3, DDA Flats,
Turkman Gate, New Delhi.
Date of institution in Sessions Court : 07.08.2001
Date of conclusion of arguments : 23.05.2015
Date of judgment : 08.07.2015
Memo of appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State and Sh. R.S. Yadav, learned
counsel for complainant.
Sh. C.L. Gupta, learned defence counsel for A-1. Sh. Kundan Kumar, learned
defence counsel for A-2 and Sh. Ankur Sharma, learned Amicus Curiae for A-3.
JUDGMENT
PROSECUTION VERSION 1.0 All the three accused persons have been sent up to face for offences under Sections 364A/302/201/411/34/ 109/120B IPC.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 1 of 571.1 Prosecution case, in brief, is to the effect that one Lincon Gogna was running a jewellery shop under the name and style of M/s M.C. Bangles in Tilak Nagar area. He was having mobile no. 9811224442 and also owned one cherry coloured Ford car bearing no. DL-4CF-8614.
1.2 As per his daily routine, he left for his shop in his said vehicle on 02.03.2001 at about 11.00 AM. He, however, did not return. His wife Bhawna called him up in the night but the phone was picked up by someone else who introduced himself as Amit and supplemented that Lincon was not well and that had been given an injection for inducing sleep and was sleeping, therefore, and would return later. Said person also informed that Lincon was at C-133, New Friends Colony.
1.3 Accordingly, Sh. Dinesh Kumar (brother of Lincon) along with his wife reached New Friends Colony but learnt that there was no such address in New Friends Colony. He, therefore, suspected that someone had kidnapped him. He accordingly lodged FIR with PS Tilak Nagar.
1.4 Next morning, Delhi Police received information regarding location of said Ford car. It reached there and found the same parked near Good Year Chowk, Faridabad near petrol pump on road-side. However, it was without tyres and rims. All the other accessories like audio/music system as well as Stepney were also missing from the car. Crime Team was summoned. Photographs of the car were taken and fingerprints were also lifted from the car.
1.5 On 04.03.2001, a wireless message was received regarding recovery of one dead body. Accordingly, Delhi Police team reached Village Feroz Pur, Faridabad where ASI Zile Singh of PS Palwal Sadar was met and it was learnt that local police had already carried out proceedings under Section 174 Cr.P.C and exhibits etc. had already been taken into possession by local police. As the dead body was found to be of Lincon, the case was converted into a case of murder.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 2 of 571.6 Two persons from Village Feroz Pur i.e. Ashok son of Suraj Pal and Birender Singh son of Chhatar Pal provided vital clues and told that one young boy having fair complexion and stout body had met them and as per his request, they had towed his cherry coloured vehicle. It was also learnt that said young boy had also contacted one Mechanic and puncture-wala with whose aid, tyres, video-audio system and other accessories of car were removed from said car and brought to Delhi by him in a Maruti van. Further vital information in this regard was provided by Dheer Singh, driver of that Maruti van and mechanic Manjeet Singh as well as two persons of Delhi who provided assistance to accused Akhil Ahuja for further transportation of said articles from Nehru Place to Hotel Park Royal in their tempo.
1.7 Since Lincon was carrying his mobile phone no. 9811224422, call details were analyzed and it was learnt that he had received one call from mobile number 6239072. Such landline number was found to be of Park Royal Hotel, Nehru Place. Police accordingly reached Park Royal Hotel and saw the footage recorded in CCTV and took the same in its possession which indicated the movement of suspect. Officials of Park Royal Hotel also revealed about the parking of one another car i.e. car no. DL-1CF-1211and it's suspicious exit.
1.8 Said car was found to be owned by accused Akhil Ahuja (A-1) and police accordingly reached accused Akhil Ahuja who admitted his involvement in the murder in question. Police also learnt about the involvement of one juvenile girl and her servant Kamal Prasad (A-2). I would like to emphasize right here that such juvenile-in-conflict-with-law was tried separately before Juvenile Justice Board. Keeping in mind the fact that she was a juvenile at the relevant time, I do not want to reveal her identity in the present case either and she would be referred as Miss A in the present matter.
1.9 Investigation revealed that accused Akhil Ahuja came to know about Lincon Gogna when he met him at one shop of car accessories. He could gather that Lincon was a man of means and very affluent. He exchanged his telephone number with him and developed intimacy with him while having an evil eye on his money. On 02.03.2001, he called him at Park Royal Hotel on the FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 3 of 57 pretext of his birthday claiming that he had arranged a small party. He had already planned and told Miss A that he would bring Lincon at her house and that then they would kill him after making him drink champagne laced with sleeping pills of Alprax. When Lincon did not show up at Hotel, he called up him at about 10.20 PM from Park Royal Hotel on which Lincon assured that he would reach there at 11.00 PM or so. Accused Akhil Ahuja then took out his car from the parking area of Park Royal Hotel and parked it near the main entry gate and started waiting for Lincon in the hotel lobby.
1.10 When Lincon reached there in his Ford car, accused Akhil Ahuja sat in that car and told him that party was already over and asked him to go to the house of 'Miss A'. They both accordingly reached house of Miss A situated in GK-II, New Delhi. There, Lovina (sister of Miss A) was also present who opened the door and then returned to her room. Lincon was then given champagne laced with Alprax who then started feeling drowsiness at 1.30 AM and then he was given rod blows by Akhil and thereafter he was strangulated. His wearing jewellery articles and wallet were removed. Lincon was having a briefcase which was opened which, when opened, was found containing gold ornaments.
1.11 Thereafter, Miss A called her servant i.e. accused Kamal Prasad and asked him to wash the blood from the floor and then they both helped accused Akhil Ahuja in removing the dead body. Dead body was put in the Ford car of Lincon and thereafter accused Akhil Ahuja drove that car upto Palwal. However, he took a kachcha road and could not negotiate turn properly and in the process, axle of the car got broken. He then dragged the dead body of Lincon and put the same in fields of wheat and mustard and then after walking for 15-20 minutes, he reached Village Feroz Pur where he met Ashok Kumar and Birender Singh who towed his vehicle. He also revealed about removing of tyres and other accessories and hiring of maruti van and bringing such articles in maruti car to Nehru Place and from there to outside of Park Royal Hotel through one tempo and that then all such articles were put by him in his own car i.e. Opel Astra car no. DL-1CF-1211. He also claimed that then he reached the house of Miss A where some of the removed articles were kept and then jewellery and cash etc. were kept by him at his own house situated at 30, Greater Kailash, FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 4 of 57 New Delhi. All the five tyres were sold by him to accused Sizauddin (A-3) who purchased the same knowing fully well that those were stolen tyres.
1.12 Police apprehended Miss A as well as accused Kamal and Sizauddin. Their disclosure statements were also recorded.
1.13 Accused Akhil Ahuja was taken to various places for the purposes of investigation and various pointing out memos were prepared and in the process, accused was also duly identified by all the concerned witnesses.
1.14 Robbed articles were also recovered from the possession of the accused Akhil Ahuja and from the house of Miss A. 1.15 Call details were also thoroughly examined and scrutinized and during investigation, Dinesh Kumar, brother of deceased Lincon also revealed that he had received ransom call as well whereby a sum of Rs. 20 lacs had been demanded from him same night i.e. night intervening 02.03.2001 & 03.03.2001 when he had been searching for his brother Lincon. In order to substantiate such fact about ransom call, Dinesh Kumar also handed over one audio cassette to police on 19.03.2001. Such cassette was also taken into possession by the police.
1.16 It will also be not out of place to mention here that one Sh. Pradeep Singh, a TSR driver had picked up a passenger on the fateful night at about 3.30/3.45 AM from Railway Station whom he was to drop at GK Part-II. While they were searching S-Block, they saw one cherry color Ford car outside one house. It was 4.30/4.45 AM and two boys and one girl were putting one boy in that car and girl was saying "hurry up". He learnt about the incident of murder later on when he came across April Issue of 'Manohar Kahaniya' and then he recollected all those things and contacted the police immediately and gave such information to the police on 21.03.2001. So much so, he, same day, also identified all the concerned accused persons as the same whom he had seen that night while they were putting one person in the car.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 5 of 571.17 After comprehensive investigation, police filed charge-sheet on 31.05.2001 against said three accused.
1.18 Naturally, since Miss A was found to be juvenile, her case was separated so that the same was dealt with by Juvenile Justice Board.
COGNIZANCE AND CHARGE 2.0 Concerned Magisterial court took cognizance and committed the case to the Court of Sessions vide order dated 02.08.2001.
2.1 Case was received on allocation by the Court of Sessions on 07.08.2001.
2.2 Arguments on charge were heard and vide order dated 19.08.2003, accused Akhil Ahuja was ordered to be charged under Sections 364/364A/302/379/201 IPC, accused Kamal Prasad was ordered to be charged under Sections 201/202 IPC and accused Sizauddin was ordered to be charged under Section 411 IPC.
2.3 All the three accused pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined sixty witnesses.
3.1 Witnesses can be classified as under:-
Lincon's family/friends
(i) PW3 Rajesh Kumar Gupta, employee of M/s M.C. Bangles.
(ii) PW18 Bhawna Gogna, wife of deceased Lincon Gogna.
(iii) PW20 Shashi Bhushan Malik (brother-in-law of Lincon Gogna).
(iv) PW27 Munish Tandon (employee of Vijay Gogna i.e. father of deceased Lincon Gogna).FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 6 of 57
(v) PW34 Geeta Gogna, wife of Dinesh Gogna (brother of Lincon Gogna.
(vi) PW3 Payal Babbar
(vii) PW45 Dinesh Gogna (brother of deceased Lincon Gogna).
Witnesses related to car accessories, towing of Ford Car/removing car accessories and tyres/hiring of Maruti Van/hiring of Tempo and other related witnesses
(i) PW4 Ashok Kumar, tractor driver.
(ii) PW5 Sachin Kumar, car accessories shop owner.
(iii) PW7 Dhir Singh, alleged owner of Maruti Van.
(iv) PW10 Anuj Kr. Sirohi, who fitted color TV in the car of deceased Lincon Gogna.
(v) PW11 Nanak Chand having puncture repair shop at Goodyear Chowk, Faridabad.
(vi) PW16 Salimuddin, who had rented out his shop to accused Sizauddin.
(vii) PW26 Virender, who towed the car with tractor.
(viii) PW32 Manjeet Singh, Scooter Mechanic at Faridabad.
(ix) PW48 Rajesh Kumar, who loaded the articles in tempo.
(x) PW49 Ramesh Chand, who loaded the articles in tempo.
Witnesses related to Palwal fields
(i) PW14 Prem Singh, informer of police regarding dead body in the fields.
(ii) PW25 Rohtan Singh, Sarpanch of Village Ferozpur in whose presence Delhi Police inspected the spot where dead body was found.
(iii) PW28 Ranjeet Singh in whose fields dead body was found.
(iv) PW29 Gian Chand.
Witnesses related to Hotel Park Royal
(i) PW24 Rakesh Dabas, Deputy Chief Security Officer.
(ii) PW33 Daulat Ram, Security Guard .
Witnesses of Police Station Sadar, Palwal
(i) PW17 ASI Zile Singh.
(ii) PW35 ASI Rajesh Kumar, MHC(M).
(iii) PW53 HC Ram Roop.
(iv) PW57 SI Harish Chand, PCR, Palwal.
Relatives of Miss A
(i) PW8 Anita, mother of Miss A.
(ii) PW15 Lovina, sister of Miss A. FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 7 of 57 Witnesses related to Call Details Records
(i) PW30 Gulshan Arora, Nodal Officer, Sterling Cellular Ltd.
(ii) PW42 R.K. Singh, Nodal Officer, Bharti Cellular Ltd.
Doctors
(i) PW1 Dr. Shruti Kant, who conducted postmortem on the dead body of deceased Lincon.
(ii) PW9 Dr. Tek Chand Bundela, who conducted postmortem on the dead body of deceased Lincon.
Witnesses related to investigation
(i) PW2 SI Ravinder Kumar, Fingerprint Expert, FSL, Delhi.
(ii) PW6 Raj Kumar, Private Photographer.
(iii) PW12 Pradeep Singh, TSR Driver.
(iv) PW13 Vijay Kumar, superdar/father of deceased Lincon.
(v) PW19 J.S. Pawar, Engineer, who mechanically inspected the vehicle no. DL-4CF-8614.
(vi) PW23 Amit Luthra, witness to numerous seizure memos.
(vii) PW36 Sh. Atul Kumar Garg, ld. MM who conducted TIP.
(viii) PW37 Sh. S.S. Malhotra, ld. MM who conducted TIP.
(ix) PW38 ASI Hamid Ali, PCR official.
(x) PW39 HC Jeet Ram, official Crime Team, West District.
(xi) PW43 Payal Babbar.
(xii) PW44 SI Tirath Raj Singh, Draftsman who prepared scaled site plan.
(xiii) PW46 Ct. Jaiveer Singh, official Mobile Crime Team.
(xiv) PW50 Sandeep, Assistant Manager, HDFC Bank, Surya Kiran, Kasturba Gandhi Marg, New Delhi.
Officials from Special Staff
(i) PW54 SI Charan Singh.
(ii) PW58 Insp. Raj Kumar.
Officials of PS Tilak Nagar
(i) PW21 HC Ved Singh, Duty Officer.
(ii) PW22 HC Jagdish Prasad, MHC(M).
(iii) PW31 SI Sita Ram (1st IO).
(iv) PW40 Ct. Dharamveer.
(v) PW41 SI Mahender Singh.
(vi) PW47 W/HC Kusum, duty officer.
(vii) PW51 HC Balraj.
(viii) PW52 ASI Gyan Singh.
(ix) PW55 ASI Ashok Kumar.
(x) PW56 SI Gurdeep Singh.
(xi) PW57 SI Harish Chand.
(xii) PW59 ACP Rajender Singh (IO).
(xiii) PW60 Insp. Rajender Prasad (IO).
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 8 of 57
STATEMENT OF ACCUSED AND DEFENCE VERSION
4.0 Accused, in their statements under Section 313 Cr.P.C. pleaded
innocence and claimed that they had been falsely implicated.
4.1 Accused Akhil Ahuja pleaded ignorance to the most of the questions put to him under Section 313 Cr.P.C. He claimed that he was lifted by the police on 04.03.2011 and had been falsely implicated in the present case. He also claimed that recovery had been planted upon him at the instance of Dinesh Gogna. He categorically claimed that he had not led the police party to his house and police had rather created evidence in order to implicate him. He also denied that he knew his co-accused Sizauddin. He asserted that his signatures were obtained on some blank papers and when he was detained illegally at police station, his photograph had been taken and, therefore, he had to refuse to participate in TIP. He also claimed that mobile number 9810006681 did not belong to him. He also desired to lead evidence in defence and examined DW1 Ajay Kumar and DW2 Satish Chander.
4.2 DW1 Ajay Kumar was examined in order to show that vehicle number HR-29D-3420 was actually a maruti saloon 800 CC and not a maruti van and to prove & substantiate that no maruti van bearing aforesaid registration number was used for returning to Delhi after allegedly dumping the body of deceased in the fields of Palwal. DW2 Satish Chander was examined in order to show that vehicle number DL-1SR-1107 was a motorcycle and not a TSR. He was examined primarily to assail the testimony of PW12 Pradeep Kumar.
4.3 A-2 Kamal Prasad also pleaded false implication. He claimed that he was shown to the witnesses during his illegal detention and, therefore, he had refused to participate in TIP. He claimed that his signatures were forcibly obtained on some papers which were later on fabricated by the police. He desired to lead evidence in defence but fact remains that he did not lead any evidence in his defence.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 9 of 574.4 A-3 Sizauddin also pleaded his innocence and ignorance and claimed that he had been falsely implicated in the matter. He asserted that nothing was recovered from his possession or at his instance. He also claimed that he was employed in the shop of one person known as 'Bona'. He did not lead any evidence in defence.
CIRCUMSTANCES ON WHICH PROSECUTION HAS BUILT UP ITS CASE 5.0 A close scrutiny of the charge-sheet and the statements of PWs recorded under Section 161 Cr.P.C. would reveal host of circumstances against accused Akhil Ahuja. Such circumstances, on which the prosecution has immensely relied upon, are as under:-
(i) Accused Akhil Ahuja was a friend of deceased Lincon Gogna as is evident from the call detail record (CDRs).
(ii) Accused Akhil Ahuja had called up Lincon on the fateful evening.
Same stands substantiated from the call detail record of mobile of accused, mobile of deceased and also from the call details of landline number installed in the lobby of Hotel Park Royal.
(iii) Presence of accused Akhil Ahuja stands established as per the statements of hotel staff and also from the CCTV footage besides the parking docket of vehicle of accused Akhil Ahuja.
(iv) Bloodstained sofa and bloodstained earth control recovered from the house of Miss A situated in GK-II, New Delhi reveal that the murder had taken place in her said house.
(v) Pradeep, TSR driver saw accused Akhil, accused Kamal and Miss A together on the fateful night while dumping the dead body of deceased in the car of deceased.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 10 of 57(vi) Presence of accused Akhil near the place from where dead body was recovered and also his being found in possession of vehicle of deceased and his carrying various accessories to Delhi..
(vii) Recovery of incriminating articles/stolen articles, blood stained shirt car accessories at instance of accused Akhil Ahuja.
(viii) Receiving of ransom call by Dinesh Gogna from accused Akhil.
(ix) Non-explanation by accused Akhil Ahuja as to why police would implicate him in a serious case related to murder and ransom.
RIVAL CONTENTIONS 6.0 Learned Addl. P.P. and Sh. R.S. Yadav, learned counsel for complainant, have contended that prosecution has been able to prove various crucial links and important circumstances which clearly indicate involvement of accused Akhil Ahuja in the murder in question.
6.1 It has been argued that Akhil Ahuja belonged to a well off and affluent family and there is no explanation as to why police officials would falsely pick him up and implicate him in such a serious matter if at all he was a stranger and totally unconnected with the crime in question. It has been argued that various stolen ornaments were recovered at the instance of accused Akhil Ahuja. My attention has been drawn towards the recovery effected from the house of accused Akhil Ahuja as well as from the house of Miss A and it has been argued that it has to be necessarily assumed that accused Akhil Ahuja had committed the murder as he was found in possession of said recovered articles belonging to deceased. It has also been claimed that weapon of offence was recovered at the instance of accused Akhil Ahuja which stands linked with the injuries in question as the concerned autopsy surgeon claimed that injuries in question were possible with such weapon.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 11 of 576.2 They both have vehemently stressed upon the testimony of PW12 Pradeep, TSR driver and have asserted that there is no reason to discard his testimony. It has been argued that his evidence is fully convincing and believable and he had seen accused Akhil Ahuja, Kamal Prasad and Miss A while they were dumping the dead body of deceased Lincon Gogna in his cherry colored Ford car and he has also duly identified both the accused during the trial and defence has not been able to explain as to why police would implicate accused. It has also been claimed that even CCTV footage and the testimony of hotel officials clearly indicates that accused Akhil Ahuja had made call from the hotel lobby of Hotel Park Royal and had called deceased there. It has been argued that even if some of the prosecution witnesses have not supported the case of prosecution, the damage to the case of prosecution is virtually inconsequential in view of the aforesaid crucial links which stand duly proved.
6.3 Sh. C.L. Gupta, learned defence counsel for accused Akhil Ahuja has refuted all the aforesaid contentions and has claimed that story, emerging during the trial, tells a different tale altogether and clearly points towards the innocence of accused. He has contended that most of the alleged crucial prosecution witnesses have not supported the case of prosecution and have rejected the story projected by the prosecution which has proved fatal to the case of prosecution and uncovers the hollowness and falsity in the case. He has also claimed that prosecution has not been able to prove the call detail records in the desired manner and there is nothing to show that accused Akhil Ahuja owned mobile number 9810006681. It has also been argued that CDRs have, even otherwise, not been proved in the desired manner as there is no certificate under Section 65B of Indian Evidence Act and, therefore, secondary evidence cannot be considered. It has also been argued that there is no eyewitness of the alleged occurrence and the prosecution had come up with number of fabricated and concocted circumstances and though it examined sixty witnesses to prove its case yet most of the public witnesses have deposed against the case of prosecution which lays bare the trumped-up story of prosecution. He has also supplemented that the testimony of PW12 Pradeep is completely unbelievable and he is evidently a planted witness, merely to fill up the lacunae appearing in the case of prosecution and to create a link somehow.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 12 of 576.4 Sh. Kundan Kumar, learned defence counsel for accused Kamal Prasad has contended that accused Kamal has been falsely implicated merely on the assumption that he was domestic help, employed in the house of Miss A. He has argued that there is nothing on record against him and there is hardly any material which may indicate that he had tried to screen the offender i.e. his co-accused Akhil Ahuja or had committed any act with intention to cause disappearance of any evidence related to murder in question. It has also been claimed that even the testimony of PW12 Pradeep Singh does not hold anything against him.
6.5 Sh. Ankur Sharma, learned defence counsel has defended A-3 Sizauddin @ Shiyazuddin and has claimed that there is nothing on record which may suggest that he had knowingly or dishonestly received tyres from his co- accused Akhil Ahuja having knowledge or reason to believe the same to be stolen property. He has, in this regard, extensively relied upon the testimony of PW16 Sh. Salimuddin. He has also asserted that the testimony of the concerned recovery witness i.e. PW59 Insp. Rajender Singh and PW60 Insp. Rajender Prasad is not sufficient, in itself, to prove the alleged recovery. It has been argued that no adjacent shopkeeper was joined as attesting witness at the time of alleged recovery and moreover the independent witness i.e. PW23 Amit Luthra has not at all supported the case of prosecution and disowned such recovery from him.
EVALUATION OF EVIDENCE 7.0 I have heard learned Addl. P.P., learned counsel for complainant and learned defence counsels and carefully gone through the entire material available on record. I have also seen the written submissions placed on record by both the sides.
7.1 Let me weigh up the evidence appearing on record in the backdrop of alleged circumstances.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 13 of 577.2 It is to be first assessed whether accused Akhil had called Lincon Gogna in a preplanned manner or not.
Circumstance No. I: Accused Akhil Ahuja was a friend of deceased Lincon Gogna which is evident from the call detail record (CDRs).
Circumstance No. II: Accused Akhil Ahuja had called up Lincon on the fateful evening and these stand corroborated from the call detail record of mobile of accused, mobile of deceased and also from the call details of landline number installed in the lobby of Hotel Park Royal.
Circumstance No. III: Presence of accused Akhil Ahuja stands established as per the statements of hotel staff and also from the CCTV footage besides the parking docket of vehicle of accused Akhil Ahuja.
8.0 Above-referred three circumstances are somewhat interlinked and I am, therefore, taking up all these circumstances together. Before discussing the same minutely, it would be, however, appropriate to note down the various telephone numbers which have surfaced in context of the present case.
8.1 As per the prosecution and counsel for complainant, the details of such numbers are as under:-
Sr. No. Number User/Subscriber Exhibit, if any
1 9810006681 Accused Akhil Ahuja Ex. PW42/A
2 9811224442 (i) Deceased Lincon Gogna - User Ex. PW30/B
(ii) PW27 Munish Tandon (alleged subscriber)
3 9811224235 Dinesh Gogna
4 011-6239072 Hotel Park Royal (Landline)
5 011-5541124 Bhawna (Landline)
6 011-2451227 Payal (Landline)
7 011-6434204 Miss A ( Juvenile)
8 011-6441441 Accused Akhil Ahuja (Landline)
9 011-5787807 Shweta Bhutani ( landline)
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 14 of 57
8.2 Needless to say that call details record (CDR) falls within the
category of electronic evidence and, therefore, same is required to be proved in accordance with the provisions contained under Section 65B of Indian Evidence Act.
8.3 Let me first see the two crucial mobile numbers which were allegedly owned by deceased Lincon Gogna and accused Akhil Ahuja.
8.4 As per prosecution, accused Akhil Ahuja owned mobile number 9810006681. CDR in this regard has been proved as Ex. PW42/A. I have seen the testimony of PW42 Sh. R.K. Singh, Nodal Officer, Bharti Cellular Limited. He has deposed that police of PS Tilak Nagar had come to their office and requested for call details of said mobile number from 01.02.2001 to 06.03.2001. He accordingly provided them printouts of such details running in 13 pages. He also deposed that IMEI number 449123897609460 had been used in said mobile connection from 01.02.2001 to 04.03.2001 upto 20:42:13 hours. Thereafter, from 05.03.2001 from 9.51 AM onwards, said mobile number was used in another instrument having IMEI No. 449317870373110. He also produced report regarding CDRs and proved the same as Ex. PW42/A. 8.5 I would, at the very outset, like to highlight to one very important aspect with respect to such CDR. PW42 Sh. R.K. Singh has not bothered to apprise the Court as to who was the registered subscriber of said mobile connection. No record pertaining to the subscriber of such mobile number has been placed on record for the reason best known to the prosecution.
8.6 Moreover, there is no certificate under Section 65B of Indian Evidence Act which is mandatory and cannot be dispensed with at all. Reference in this regard be made to judgment of Apex Court i.e. Anwar P.V. Vs. D.K. Basheer, Civil Appeal NO. 4226/12 (DOD: 18.09.2014) wherein it has been held that it was only when the electronic record was duly produced in terms of Section 65B of the Evidence Act that the question would arise as to the genuineness thereof and in that situation, resort could be made to Section 45A - opinion of examiner of electronic evidence. It was also held therein that FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 15 of 57 electronic record, by way of secondary evidence, shall not be admitted in evidence unless the requirements under Section 65B were satisfied. Thus, in the case of any electronic record including CDR, the same is necessarily to be accompanied by a certificate. Such certificate, given in terms of Section 65B, is also required to be obtained at the time of taking the document. If such conditions are not met then, the secondary evidence pertaining to such electronic record is inadmissible.
8.7 Reference be also made to two recent judgments of our own High Court. In Ankur Chawla Vs. CBI Crl.M.C. No.2455/12 & Crl.M.A.No. 8318/2014 (DOD: 20.11.2014), Hon'ble High Court of Delhi, while deciding the charges against accused in a corruption case observed that since audio and video CDs in question were clearly inadmissible in evidence for want of certificate u/s 65B of Indian Evidence Act, trial court could not have relied upon those to conclude that a strong suspicion existed against accused.
8.8 In Jagdeo Singh Vs. The State and Ors (CRL.A. 527 of 2014, DOD 11.02.2015), while dealing with the admissibility of intercepted telephone calls in a CD and CDR which were without a certificate u/s 65B Evidence Act, the Hon'ble High court observed that the secondary electronic evidence without certificate u/s 65B Evidence Act was inadmissible and could not be looked into by the court for any purpose whatsoever.
8.9 It is thus very much apparent that the documentary evidence in the shape of electronic record can be proved only in accordance with the aforesaid judgments and not otherwise. In the present case, there is no certificate under Section 65B of Indian Evidence Act. Said amendment in Indian Evidence Act was incorporated by Act 21 of 2000 and came into existence on 17.10.2000 and the offence in question took place on 03.03.2001 and, therefore, prosecution cannot be permitted to run away from the compliance of said mandatory provision.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 16 of 578.10 It has been argued from the side of State and complainant and there is ample evidence on record to show that said number was used by accused Akhil Ahuja and the Court can also cross-check the aforesaid fact from the CDR of deceased Lincon Gogna. However, as already noticed above, the best documentary evidence i.e. Subscriber record has not been placed on record and, therefore, it would not be very safe to hold that accused Akhil Ahuja was the subscriber of said number. Even if it is assumed for a moment that such mobile belonged to accused Akhil Ahuja, the prosecution case would not get bolstered as CDR cannot be looked into at all. Moreover, even as per the case of prosecution, the SIM Card of the alleged mobile phone of accused Akhil Ahuja was in the name of one Varun Aneja. In this regard reference be made to the cross-examination of PW60 Insp. Rajender Prasad. He admitted in his deposition dated 30.03.2013 that the SIM Card of mobile number 9810006681 had been issued to one Varun Aneja. Prosecution has not thrown any light as who is this Varun Aneja and why it could not contact him? He was a very important link in the scheme of things because the alleged mobile phone, which according to prosecution was being used by accused Akhil Ahuja, contained a SIM Card which was in the name of said mysterious Varun Aneja. Prosecution should have come up with complete clarity and precision and there should not have been any attempt to withhold any material having direct or indirect bearing over the case of prosecution.
8.11 I have also seen the CDR pertaining to deceased Lincon Gogna also. Same has been proved as Ex. PW30/B. I have seen the testimony of PW30 Sh. Gulshan Arora. He is from M/s Sterling Cellular Ltd. and his deposition is very sketchy. He has simply deposed that he was conversant with the signature of Col. Rajiv, Nodal Officer who had left their services and has proved the seizure memo as Ex. PW30/A and call details as Ex. PW30/C. Again prosecution has not bothered to place on record any certificate under Section 65B of Indian Evidence Act and, therefore, it will not be possible to rely the same in gross defiance of statutory provision and in view of afore-referred judgments.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 17 of 578.12 Let me now assess and evaluate whether accused Akhil Ahuja had come to Hotel Park Royal on the fateful evening and whether he had made any call to deceased from landline number of Hotel Park Royal or not?
8.13 It has been argued by Sh. Jindal and Sh. Yadav that landline telephone number 6239072 had been installed at Hotel Park Royal, Nehru Place, New Delhi and accused had made calls from said landline number to the mobile of deceased and since there were CCTV cameras installed in the hotel, CCTV footage was obtained and such footage clearly indicates that accused Akhil Ahuja was present in the hotel that evening and had made calls from there. They have claimed that accused Akhil had tried to act very smart and clever and did not deliberately use his own mobile and rather made calls from lobby phone.
8.14 It is, however, pertinent to mention that prosecution has not placed on record any document which may show that said landline number was installed in hotel lobby. No record was ever collected from the concerned service provider or even from the Hotel. No witness from concerned service provider has either been cited or examined. Prosecution has produced two witnesses from Hotel Park Royal and let me see their testimony also.
8.15 PW24 Sh. Rakesh Dabas was posted as Deputy Chief Security Officer in said hotel at the relevant time. He has deposed that cameras were installed at different places in their hotel and one telephone was also installed in the lobby. He claimed that he did not remember the number of such landline. He claimed that it was a PCO telephone which was available for public in general. He also deposed that cameras installed could catch the image of the persons who were making phone calls from the lobby of the hotel. Evidently and interestingly, this witness has not been able to provide the landline number and when he was cross-examined by the prosecution with the permission of the Court, during such cross-examination even when a specific suggestion was put to him, he denied that he had given landline number as 6239072. Secondly, according to him, such camera could have captured the image of the person making phone call. In the present case, there is no such image at all which may FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 18 of 57 show accused Akhil making any call.
8.16 PW24 Sh. Rakesh Dabas has further deposed that in February or March 2001, many police officials were sitting in the lobby of the hotel and he told them that cameras were installed in the hotel and recording used to take place. He showed them 'old recordings' which were in the shape of cassettes. He also deposed that police had not disclosed number of any mobile phone on which the telephone call was given from the lobby of their hotel. He also deposed that cassette, which was used by the police, was not seen by him. So much so, he deposed that he had not seen movement of any person in the said cassette.
8.17 When this witness was further cross-examined by the prosecution, he admitted that he had taken the police to control room of CCTV. He also admitted that when film was viewed by the police, he had seen many boys moving in the lobby. However, he did not support the case of prosecution by further claiming that neither he could affirm nor deny that at 10.25 PM, he had seen one boy going in the lobby towards phone number 6239072. He also deposed that he could not affirm for deny whether said boy was again visible in the footage. He admitted that cassette was handed over by him to the police vide memo Ex. PW24/A but he specifically claimed that it was incorrect that he had seen accused Akhil Ahuja in that film pertaining to 02.03.2001. Interestingly, when this witness was examined, prosecution did not find any necessity of playing such video cassette. This was imperative. He was from Hotel security and thus in best position to make references to various positions inside the hotel and in particular of lobby. He could have thrown light on some crucial aspects if the cassette had been played before him. Nothing of that sort was even attempted by prosecution. Moreover, Rakesh Dabas had not himself seen the movement of Akhil Ahuja that evening. Even when his statement under Section 161 Cr.P.C. was recorded, he merely claimed that he had seen the movement of one boy in the footage contained in CCTV. He did not see Akhil, in flesh and blood, with his own eyes that evening.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 19 of 578.18 It is not revealed to the court as to who was incharge of such CCTV control room. Since, prosecution was heavily relying on such cassette, it should have examined the concerned official from CCTV control room and should have also obtained the specific opinion from forensic laboratory that CCTV footage was original and there was no editing or tampering with the same. It is also not made very clear whether such cassette was original or a copy. It is matter of common knowledge that such CCTVs keep on capturing images and videos round the clock and these are automatically retained and stored in hard disks for some specified period only. These, as and when required, can be moved to any external media like cassette. No official from Hotel has specified about the manner of capturing and details of configuration. It cannot be robotically assumed that capture was on video cassette directly. Even otherwise, it does not seem to be possible. In such a situation, there arises necessity of obtaining certificate u/s 65 B of Evidence Act. Same is, again, missing.
8.19 Be that as it may, testimony of PW24 Sh. Rakesh Dabas is found to be hazy and unsupportive. He has categorically denied that he had seen movement of accused Akhil Ahuja in such footage. His evidence also does not irrefutably show that he himself had seen the cassette during investigation.
8.20 There is, however, one more important witness from said hotel.
8.21 PW33 Sh. Daulat Ram was posted as Security Guard at the relevant time. During investigation, he had claimed that because accused Akhil had taken out his vehicle from the hotel from wrong gate, therefore, he noted down number of his car. So much so, he also revealed to the police that he had advised accused Akhil Ahuja to go out from exit gate but accused went out from entry gate. He also identified him during investigation.
8.22 Such version has also been out-rightly denied by PW33 Sh. Daulat Ram. He has simply deposed that about three years ago police had come to Security Control Room of their hotel and he was summoned by his officer Sh. Rakesh Dabas. He did not prop up the prosecution case any further and claimed that accused Akhil had never come to hotel and he had not seen his car FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 20 of 57 no. DL-4CF-8614. Since he was resiling from his previous statement, he was cross-examined by the prosecution with the permission of the Court but despite his grilling by the prosecution, he did not utter even a single word in favour of prosecution. His testimony was very important in order to show that accused Akhil Ahuja had come to that hotel. He has, whereas, denied that he had ever seen accused Akhil Ahuja or noted down his car number.
8.23 It will be also important to mention that if prosecution case is to be believed then PW33 Sh. Daulat Ram had confided all these facts in his superior Sh. Rakesh Dabas. Number of car of accused Akhil Ahuja was also noted by Security Guard Daulat Ram in a diary and such diary was also eventually handed over to the police. All these facts were also, bluntly, discarded by both the aforesaid hotel officials.
8.24 Ex. P-35 happens to be that diary which belonged to PW33 Sh. Daulat Ram in which he had written the number of vehicle of accused Akhil in his own hand but such fact has been disowned by both the aforesaid hotel staff. Prosecution is also relying on Ex. P-34. It is parking docket with respect to vehicle no. DL1CF-1211. With the help of such parking docket, an attempt has been made to prove that accused Akhil Ahuja had come to hotel in his said car that day. This parking docket in itself does not take us anywhere. It is a matter of common knowledge and usual practice that valet parking staff maintains a register in which entries are made with respect to all such vehicles which are handed over to Hotel staff for parking. Undoubtedly, even Hotel Park Royal would be maintaining such register. Such register, being maintained in usual course of practice, would have reflected the true facts. However, for reasons best known to the prosecution such register has neither been seized nor produced before the Court.
8.25 During the investigation, police had taken the assistance of two officials from Special Staff. These are PW54 SI Charan Singh and PW58 Insp. Raj Kumar. They both had been given call details record of mobile of deceased. They scrutinized those calls and observed about the incoming calls made to aforesaid mobile of deceased were from telephone number 6239072 of Hotel FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 21 of 57 Park Royal. They both accordingly went to said hotel and met Ms. Rajesh Dabas who told them about installation of said landline phone as well as CCTV in the lobby of hotel. They then went to control room and screened the recording of 02.03.2001 and they also found that there was some difference in the time of CCTV and time reflected in the CDR. Such difference was found to be of three minutes. PW54 SI Charan Singh also deposed that in one recording, no one was identifiable but in the other two recordings, one same person was seen going towards the place where landline number was installed. He also claimed that accused Akhil Ahuja was the same person. Thereafter, cassette was taken into possession and was sealed with the seal of SRT vide memo Ex. PW24/A. 8.26 PW58 Insp. Raj Kumar has also deposed regarding CCTV camera and time gap of 2-3 minutes. He deposed that face of the caller was not visible in the first recording but his face was there in the other calls. This is very important. As per PW58 Insp. Raj Kumar, face of the caller was visible in the other two calls and thereby Insp. Raj Kumar wants to indicate that footage was showing accused Akhil Ahuja making call. However, in his cross-examination, he himself admitted that it was correct that, in such footage, he had not seen that person making any call. Even PW54 SI Charan Singh has admitted in cross- examination that in CCTV footage, where alleged image of accused Akhil was appearing, he was not seen making any telephone call.
8.27 Needless to comment that CCTV footage is also a piece of electronic evidence. It is also prone to editing and alteration and, therefore, it was principal duty of the prosecution to have confirmed that the footage containing in cassette was original and untampered. In all probabilities, such cassette must have been prepared at the Hotel by selecting the relevant details regarding crucial dates. It cannot be said to be original device in that sense. Moreover, there is no certificate under Section 65B of Evidence Act either. There is no report from any forensic laboratory and as already noticed, the alleged footage does not even show accused Akhil Ahuja making any call.
8.28 Learned Prosecutor has, however, contended that when the footage was seen during investigation at the Park Royal Hotel itself, the movements of FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 22 of 57 accused Akhil Ahuja were noticed therein and accordingly a printout of such image was also generated. He has contended that such printout clearly indicates that it was accused Akhil Ahuja who was present at said hotel at the relevant time and who had made call to Lincon Gogna.
8.29 To appreciate the same in right perspective, I am again tempted to make reference to the testimony of said two security officials, namely, PW24 Sh. Rakesh Dabas and PW33 Sh. Daulat Ram.
8.30 PW24 Rakesh Dabas has not uttered even a single word regarding generation of image of Lincon Gogna. Similarly, PW33 Sh. Daulat Ram has also not spoken anything regarding said image. If at all any such image had been generated in the hotel itself, it was expected that at least one of them would have said anything on this crucial aspect but they both are totally mum on this aspect.
8.31 Let me now also see the testimony of two police officials from Special Staff i.e. PW54 SI Charan Singh and PW58 Insp. Raj Kumar. Their role was otherwise limited and they were required to merely analyze and scrutinize the call detail record. However, they exceeded their such role and commented beyond as if they knew accused Akhil closely. They were made to see the CCTV footage and their evidence does indicate generation of image from such cassette but the manner of generation given by them is conflicting.
8.32 If PW54 SI Charan Singh is to be believed then when the alleged image of accused Akhil Ahuja appeared on TV screen, photograph of the same was taken with a camera. He, however, does not remember as to whom said camera belonged and from where it was procured but he is very certain that the photograph of such image was taken by an external manner i.e. by capturing the screen with the help of camera. He does not remember whether the camera was digital or conventional one. Be that as it may, if he is to be believed then the image was captured with the help of other device and, therefore, the image, so taken, becomes electronic piece of evidence and is governed by the principles of evidence as mandated under Section 65B of Indian Evidence Act. Prosecution has, however, not thrown any light as to why the primary evidence has not been FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 23 of 57 produced. It has also not been made clear as to what type of camera was used and who owned such camera.
8.33 PW58 Insp. Raj Kumar has deposed in his examination that the caller was visible in the CCTV footage and then Sh. Rakesh Dabas took out the cassette from CCTV and PW31 SI Sita Ram and PW24 Rakesh Dabas went out for getting the printout of the person appearing in such recording and they both returned after sometime and they both brought one photograph and such photograph was then seized along with cassette. He also identified photograph as Ex. P-37. In his cross-examination, he categorically contradicted PW54 SI Charan Singh and claimed that no photograph of such CCTV recording was captured with a camera. He is rather found to be very definite that such printout had been taken from somewhere outside the hotel.
8.34 Be that as it may, it becomes very much evident that there is utter confusion and chaos as regards the manner of generation of said photograph.
8.35 I also took a very close look on the photograph and also saw the CD of the relevant CCTV footage. I have no hesitation in holding that such image does not have the requisite level of clarity. Image is somewhat hazy and blurred and it is virtually impossible to identify the face of the person appearing in the recording. Moreover, the image should have been got identified from those persons who knew accused Akhil Ahuja beforehand. Even the concerned hotel official i.e. PW33 Sh. Daulat Ram could have thrown some light over such image. For the reasons best known to the investigating agency, said photograph was got identified by said two police officials of Special Staff who even did not know accused Akhil Ahuja personally. If they identify accused, at best, their such assertion can remain in the realm of opinion. Their such opinion has no evidentiary value as it is the opinion of expert which matters and which has some relevancy and admissibility in the eyes of law.
8.36 I would also like to mention that during the course of the arguments, the court had asked learned Prosecutor to apprise the Court whether it was possible to run the cassette or not. However, learned Prosecutor apprised the FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 24 of 57 Court that it could be played only through video cassette player (VCP) and since video cassette player had virtually become obsolete, same was no longer available. Therefore, I was compelled to go through the contents of compact disc. Such CD is otherwise a replica of the contents appearing in cassette.
8.37 I would also, right here, like to make mention about order-sheet dated 13.05.2010. Video cassette in question was played during the recording of examination of PW54 SI Charan Singh but the examination was deferred as the video cassette, when played, was not showing the stable images and learned Prosecutor himself requested for sending the same to FSL for being converted into a compact disc. Such request was acceded to by the Court and video cassette was sent to FSL, Rohini with direction to prepare a compact disc.
8.38 I would also like to highlight right here that FSL authority, Rohini could not convert the contents of cassette into a compact disc because of non- availability of particular VCR i.e. TL-80-1300 (PAL). This is apparent from order dated 03.06.2010 and in view of such report received from FSL, Rohini, services of CFSL Chandigarh were hired which eventually got the compact disc prepared.
8.39 I have seen the compact disc very carefully. It needs no discerning eyes to comment that such CCTV footage does not contain any video as such. It is rather amalgamation of various still images captured by CCTV cameras. It is quite evident from the footage that in the hotel, there were 6-7 cameras installed at different locations and the images collected by such cameras were found recorded in the cassette one after the other. There is no continuous footage of any particular camera location. These are all still images appearing in quick succession. Therefore, the footage contained in compact disc is not a video footage and it is rather compilation of still images captured by CCTV cameras.
8.40 As per report of CFSL Chandigarh also, video cassette V/1 had been played in Time Lapse VCR (Real Time Player) with all modes i.e. L3, L12, L24, L30 etc. and it was observed that the cassette was containing fast recording. Hence, the video cassette had been played in Real Time Player to change its fast recording in normal speed. Be that as it may, such photograph does not FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 25 of 57 give any impetus to prosecution in view of my foregoing discussion.
8.41 I have already made reference to various other telephone numbers in Para-8.1 above. These include landline number of Shweta Bhutani. It is already noticed that there is no mandatory compliance of Section 65 (B) of Indian Evidence Act and, therefore, there is, naturally speaking, no substantial and real requirement of minutely scrutinizing the details contained in CDR as such electronic record is inadmissible in evidence. Fact, however, remains that as far as Shweta Bhutani is concerned, she was not even produced in the witness box by the prosecution. Her evidence would have been of somewhat importance as such CDR, which though hasn't been proved in the desired manner, indicates that on the fateful night, there were two incoming calls from her landline number to the mobile of deceased. In fact, one such call is of sufficient duration i.e. 08 minutes and 12 seconds and had been made at about 00:27:23 hours.
8.42 PW43 Payal Babbar also knew deceased. She is also an important witness as according to prosecution, deceased had come to her house on 02.03.2001 during late evening hours and had shown samples of gold jewellery to her mother. It has also come on record that deceased had left his house with considerable stock of gold ornaments. As per PW43 Payal Babbar, her mother had given order of one or one and half kg gold jewellery to him and Lincon even had dinner with them. According to her, he then left. She also deposed that at about 1.45 AM, she received a telephonic call from Lincon Gogna to the effect that he was feeling sleepy and was at his friend's house. She deposed that she told him to remove shoes before going for sleep. Her testimony is, thus, very sketchy and limited.
8.43 Fact remains that she has not even bothered to give the particulars of her own landline number. She has also not given the details of the mobile number of Lincon Gogna. As per prosecution, her landline number was 011-2451227 and as per the CDR, three calls had been received at said number at 00:35:50 hours, 00:39:27 hours and 01:32:43 hours. Though deceased was in touch with different girls even at very late hour of the night yet it should not be FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 26 of 57 given any uncalled-for contemplation.
8.44 Be that as it may, fact remains that prosecution has completely ignored the most crucial and vital aspect of mandatory requirement of certificate under Section 65 (B) of Indian Evidence Act. It is, therefore, not possible to read the CDR in the manner prosecution wants the Court to comprehend. In view of the unsupportive testimony of hotel staff officials, poor quality of CCTV footage, low-grade quality of the photograph generated, I do not have inspiring and cogent material on record which may show that accused Akhil Ahuja was present at Hotel Park Royal and had made any call from there.
Circumstance no. V: Pradeep, TSR driver saw accused Akhil, accused Kamal and Miss A together on the fateful night while dumping the dead body of deceased in the car of deceased.
9.0 Prosecution is heavily banking upon the testimony of one Pradeep Singh. He is the one who, on the fateful night, seen accused Akhil Ahuja as well as Kamal Prasad along with one girl and as per the case of prosecution, they all had, by that time, killed Lincon Gogna and were dumping his body in a car so that the same was taken to a remote place to avoid detection by law enforcement agency.
9.1 Let me now see what PW12 Pradeep Singh has to offer.
9.2 He has deposed that he was a three-wheeler driver by profession and on the night intervening 02/03/2001 and 03/03/2001, at about 3.30 am or 3.45 a.m., he was present at New Delhi Railway Station and was waiting for passengers. One passenger came to him and asked him to take him to Greater Kailash Part-II, New Delhi. Pradeep Singh told him that he was not familiar with the route but that passenger assured to guide him.
9.3 Such passenger then boarded his TSR and told him to go to S-Block of Greater Kailash Part-II, New Delhi. Pradeep Singh has further deposed that he inquired from two boys and one girl, who were standing along with one cherry FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 27 of 57 coloured Ford car, about the Central Park as that passenger was to go near Central Park of Greater Kailash Part-II. Those boys guided him and told him that the park was at some distance.
9.4 PW12 Pradeep Singh further deposed that those two boys were putting one boy in the said car and such boy was having injuries. Pradeep Singh asked them as to what had happened to that boy and then they told him that he had sustained injuries and they were removing him to some place. The girl who was standing with those boys also told them to remove the third boy immediately.
9.5 PW12 Pradeep Singh has further deposed that on 21/03/2001, he read Manohar Kahaniya and saw photographs of those two boys printed therein and he identified those boys as the same whom he had met near the cherry coloured Ford car. He immediately made telephone call to PS Tilak Nagar and informed them that he was aware about the facts related to murder. At that time, since IO was rushing to the Court of Sh. Rakesh Syal, learned Metropolitan Magistrate, he also went there and told him about all the facts. He also deposed that he saw those boys in the Court of Sh. Rakesh Syal and identified them. He also identified accused Akhil Ahuja and accused Kamal Prasad as those two boys who were putting third boy in Cherry coloured Ford car.
9.6 Learned Additional Public Prosecutor has contended that the testimony of PW12 Pradeep Singh is fully convincing and trustworthy. He has argued that there is no reason to disbelieve him merely because he reported the matter to the police belatedly. He has argued that PW12 Pradeep Singh had no inkling about any serious mishap. He merely noticed those two boys removing one injured and it was only when he happened to come across Manohar Kahaniya that he learnt that some murder had taken place. He has further argued that delay has been explained appropriately and, therefore, this vital piece of evidence should be held as fully proved.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 28 of 579.7 Defence Counsels have, on the other hand, out-rightly rejected the version of PW12 Pradeep Singh. It has been argued by them that he has been falsely introduced to give some unwarranted impetus to the case of prosecution.
9.8 I have carefully gone through the cross-examination of PW12 Pradeep Singh and undoubtedly there are certain aspects which are not appropriately and entirely explained by the prosecution. These are as under:
i) Pradeep Singh has claimed himself to be a TSR driver. He remembers everything about the incident but surprisingly, he does not recall the registration number of TSR which he used to drive those days. He claimed in his cross-examination that he was plying TSR since 2000 and had been hiring the same. This does not seem to be digestible at all. During his cross-examination, he came-up with one TSR number as DL-1SR-1107 but supplemented that he used to drive other TSRs also. Thus, it is not clear whether on the fateful night, he was driving TSR no. DL-1SR-1107. In this regard, reference be also made to the testimony of DW2 Sh. Satish Chander, Record Clerk, RTO Mall Road, Delhi, who has categorically deposed before the Court that such number was in fact registration number of a motorcycle which was registered in the name of one Raj Kumar of Shakurpur. Prosecution has not been able to explain this serious anomaly.
ii) Surprisingly, Pradeep Singh does not even know or remember the name of the owner of the three wheeler from whom he used to hire said TSR in March, 2001. No effort was made by police to contact such owner who had given auto on hire to Pradeep Singh.
This was imperative to reassure that what Pradeep Singh was claiming was actually correct.
iii) PW12 Pradeep Singh has not been able to even produce his driving licence before the Court. So much so, according to him, he had not taken any badge from Government for plying TSR. If at all, he was TSR driver, it was expected that he would have at FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 29 of 57 least produced his driving licence to the Court. Nothing of that sort has been shown.
iv) When he was confronted with copy of his passport, he admitted that in such passport, his occupation was mentioned as Goldsmith. The passport was issued in the year 2002 and the incident is also of year 2001 and, therefore, prosecution should have come with requisite clarity in order to at least satisfactorily demonstrate that Pradeep Singh was a TSR driver and on that day, he had taken any TSR on hire from his owner.
v) I also cannot be unmindful of the fact that as per the details appearing in passport, PW12 Pradeep Singh was a goldsmith. As already noticed above, even the deceased was a goldsmith and though, it cannot be robotically held that PW12 Pradeep Singh has been introduced as a false witness yet such fact of his being a goldsmith puts the Court on guard particularly when he himself has tried to act clever and did not revealed anything about his such profession to police.
vi) Even if he had seen the incident wherein one injured was put in a car in somewhat mysterious manner, he should have immediately informed the police, if at all, he was concerned about the incident or had felt that there was something fishy. He rather does not report the matter to anyone and it was only as late as on 21/03/2001 that he contacted the police when he came across April issue of Manohar Kahaniya.
vii) Such April issue of year 2001 of Manohar Kahaniya has been proved as Ex. PW12/DA and as per the testimony of PW12 Pradeep Singh, he had seen the photographs of those two boys who were putting one injured boy in the car. I have seen the relevant article appearing in said magazine. It contains two photographs of two boys but fact remains that one such photograph is of accused Akhil and the other one is of deceased Lincon Gogna. This fact is not even disputed by the prosecution. If this is so, then it is very strange FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 30 of 57 and awkward as to how PW12 Pradeep Singh has asserted that he was able to identify both the accused persons when such article was containing photograph of only one accused. Such article is at page no. 87 and then on pages No. 111 to 114. Besides deceased Lincon Gogna and accused Akhil, there are photographs of three police officials i.e. Ajay Kumar, Alok Kumar and Pramod Kushwaha. There are also photographs of vehicles of deceased Lincon Gogna and accused Akhil. Be that as it may, the fact remains that there is no photograph of accused Kamal Prasad in such article and it is not explained by state as to how Pradeep Singh was able to identify both the accused persons. It is also very important to mention that in his entire deposition, Pradeep Singh nowhere claimed that he could also identify that injured boy.
viii) I also cannot lose sight of the fact that the said alleged act of dumping the dead body in the car took place at dead hour of the night, in any case after 4.00 a.m. or so. At such late hour when Pradeep Singh had merely made inquiries from those persons while sitting in his own TSR, it is really doubtful as to how, he was able to identify those persons.
ix) I do not know whether it is a sheer coincidence or not but the fact remains that this crucial witness of prosecution is also an accused in one case of same police station. In his cross-examination, he admitted that there was a case of cheating against him which was registered at PS Tilak Nagar. Police has not tried to investigate such aspect. His antecedents should have been thoroughly checked before believing him and citing him as such an important witness.
x) It is also intriguing as to how PW12 Pradeep Singh was able to reach the Court same day and identify the accused persons as well. If Pradeep Singh is to be believed, he first made a call to PS Tilak Nagar and even told them that he knew about the facts related to murder in question. According to him, since IO was in Court premises, he met him there and also identified the accused. This was not the right approach in any manner whatsoever. If at all, FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 31 of 57 investigating agency felt that Pradeep Singh was a material witness, it should not have usurped the powers of the Court of holding of judicial TIP and should not have shown the accused persons to the witness. Rather they should not have permitted Pradeep Singh to come close to the accused. As already noticed above, it was not a case of chance meeting and, therefore, concerned IO should have made efforts to ensure that the accused persons were having their faces muffled so that if required, their identification was carried out in the desired manner.
xi) Pradeep Singh also does not know the name of the passenger whom he dropped. He also does not know as to where exactly he dropped the passenger in Greater Kailash.
9.9 In view of my foregoing discussion, I am of the considered opinion that the testimony of Pradeep Singh does not inspire much assurance.
Circumstance No. VI: Presence of accused Akhil near the place from where dead body was recovered and also his being found in possession of vehicle of deceased and his carrying various accessories to Delhi.
10.0 It has been argued by the prosecution that after Lincon Gogna was killed, his body was taken in his car and was dumped in the fields of Village Ferozpur, Faridabad. Said car developed some mechanical snag and, therefore, accused Akhil Ahuja got it towed and in the process police was able to come across number of witnesses who categorically revealed during the investigation that it was accused Akhil Ahuja only who had brought that car to Village Ferozpur and then left the car abandoned near Good Year Chowk, Faridabad and got removed its electronic items and tyres etc. and brought them to Delhi and all these articles were eventually recovered from accused.
10.1 Sh. Jindal and Sh. Yadav have contended that though some of the witnesses have not supported the case of prosecution on said aspect of the case yet testimony of PW26 Virender Kumar categorically indicates the involvement of accused Akhil Ahuja.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 32 of 5710.2 Let me now see said crucial aspects in a sequence.
10.3 PW31 SI Sita Ram was posted as Sub Inspector at PS Tilak Nagar and he had conducted the initial investigation. He received information from SHO that car, in which Lincon Gogna had left that day, had been seen at Faridabad near SOS Petrol Pump and, therefore, he was directed to reach there. He along with Ct. Dharambir reached there. Crime Team also reached there and they found Car No. DL4CF-8614 of Cherry color stationed there. Car was without wheels and was resting on four stones. The Car was got inspected by the Crime Team officials and fingerprint expert had also inspected the car. Right here, I would like to mention that chance prints were also lifted from the said car i.e. from front said door, bonnet and left side front door glass. These chance- prints were given number as Q1 to Q5. Investigating agency had also obtained the fingerprints impression of accused Akhil Ahuja and such chance-prints and admitted fingerprints were sent to Forensic Laboratory for opinion. However, report of Director, FSL which is dated 15.06.2001 does not help the case of prosecution in any manner whatsoever. Two such chance-print i.e. Q-3 & Q-4 were not found identical with the palm prints of accused Akhil Ahuja. Two of the chance prints i.e. Q1 & Q5 were blurred and smudged and did not disclose the sufficient number of ridge for comparative analysis and, therefore, those were found unfit and no opinion could be given regarding these prints. This could have been a very crucial piece of evidence. If at all accused Akhil Ahuja had driven that car and had ferried the dead body of Lincon Gogna in such car, the chance prints would have certainly matched with his fingerprint. However, two prints were found to be specifically dissimilar and non-identical and the other prints did not match for want of sufficient details. The benefit in this regard has to, therefore, go to accused Akhil Ahuja.
10.4 As per the evidence appearing on record, the vehicle was recovered on 03.03.2001 and the dead body was recovered on 04.03.2001.
10.5 PW17 ASI Zile Singh was posted at PS Sadar Palwal, Haryana and he learnt about the fact that a dead body was lying in the fields of Village Ferozpur. He accordingly flashed a message to PS Sadar Palwal and went to FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 33 of 57 the fields of Prem Singh. Sh. Gian Singh, Ex-Sarpanch of the village also accompanied them to the fields. Palwal police then contacted Delhi Police and SHO was informed about the recovery of the dead body and relatives of the deceased also reached there and identified the dead body of Lincon Gogna. He has also proved the inquest proceedings. He also made reference to the various articles recovered from said car which were seized vide memo Ex. PW14/B. 10.6 This witness also claimed that a Ford car was also found near the village which was of light red color. He was naturally making the reference to the Ford car of deceased Lincon Gogna but as per the admitted case of prosecution, such vehicle was recovered at a considerable distance (running into several kilometers) from the place from where the dead body was recovered. PW53 HC Ram Roop is police official from PS Sadar Palwal. He was on duty with ASI Zile Singh at the relevant time. His testimony relates to investigational aspects and does not incriminate accused Akhil Ahuja in any manner whatsoever. PW57 SI Harish Chand is Police Control Room official of Faridabad and he merely flashed information regarding the dead body lying in the fields of Prem Singh. PW35 ASI Rajesh Kumar was posted as MHC(M) with PS Sadar Palwal, District Faridabad at the relevant time and he simply proved the relevant entries of malkhana register.
10.7 Let me now see what PW14 Prem Singh has to offer. Dead body was allegedly recovered from the fields. He deposed that he knew Gian Singh of his village who told him that a dead body was lying in the fields of his younger brother Ranjeet Singh and he went to that place and found the dead body. He informed the aforesaid fact to PS Sadar Palwal on telephone and after about one hour, police officials of PS Sadar Palwal came there and photographer was also called. He also, surprisingly, deposed that there were some marks of struggle in the fields and it appeared that there was free fight between 4-5 persons. He also created further confusion by claiming that a car of red color was also found on the kachcha(unmetalled) way near the fields and one of the front wheels might have punctured. He deposed that tractor trolley was arranged and dead body was removed to general hospital at Palwal and in his presence nothing was lifted by the police and he never visited that place with the police. This witness FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 34 of 57 was cross-examined by the prosecution with the permission of the court since he was found resiling from his earlier version but despite his cross-examination conducted by the prosecution, he did not make any amends and did not tell anything regarding seizure of any article from the spot. Surprisingly, fact regarding presence of car of deceased near to the place from where the dead body was recovered has not been impeached or disputed by the prosecution. It rather indicates that even prosecution admits that the dead body and vehicle were recovered from virtually the same place. It is, naturally, not in consonance with the case of prosecution.
10.8 PW29 Sh. Gian Chand has also not supported the case of prosecution. He claimed that he had not seen the dead body. He also claimed that he was made to run away from the spot by the police and police had not conducted any proceedings in his presence. Despite his cross-examination by the prosecution, he did not support the case of prosecution and out rightly denied that any proceedings were conducted by the police at the spot in his presence.
10.9 PW26 Virender also happens to be a very important witness for prosecution. According to the case of prosecution, PW26 Virender met Akhil Ahuja in the early morning who asked him to help take his car from kachcha pathway to main road with the help of a tractor. Accordingly, PW26 Virender called one Ashok from his house and they both helped that person. Let me see what PW26 Virender has to say in this regard. He has deposed that about three-four years back, he was going to attend nature's call in the fields and on the way one young man approached him to put his car from kachcha rasta onto mettled road with the help of tractor. He accordingly called Ashok and tow- chained that car and brought the same to the main road i.e. Delhi-Mathura Road and left the car at a puncture shop near Goodyear Petrol Pump and they then charged Rs. 500/- from that boy as labour. He also deposed that said young man was having long hair and was wearing goggles. He then took a look towards accused Akhil Ahuja and claimed that that man looked like accused Akhil Ahuja. He, however, further deposed that he did not know anything about the case and nothing further had happened in his presence. Since he did not FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 35 of 57 come up with complete facts, he was cross-examined by the prosecution with the permission of the Court.
10.10 In such cross-examination, he did make some amends and gave some support to prosecution but also reiterated that he could not say with certainty whether the person in court was the same boy who had hired the tractor and remained with them. Thus, testimony of PW26 Virender clearly indicates that he has not come up with complete facts and moreover he has not been able to identify accused Akhil Ahuja in a convincing manner. Guess work cannot be given any credibility and weightage.
10.11 Moreover, PW4 Ashok Kumar, who had along with PW26 Virender allegedly helped accused Akhil Ahuja in towing the car from the fields to the main road, has not at all supported the case of prosecution. I have seen testimony of PW4 Ashok Kumar very carefully and he rather claimed that on 03.03.2001, accused Akhil Ahuja had never approached him. He also claimed that nothing had happened in his presence and he had never helped accused Akhil Ahuja on 03.03.2001. Since he was found suppressing the truth, prosecution was permitted to cross-examine him but despite his exhaustive cross-examination, he did not utter even a single word in favour of prosecution or for that matter against accused Akhil Ahuja. Rather he claimed that his signatures were obtained on some papers and he had signed those papers under fear of the police. He also denied that anyone with the name of Virender was residing in his neighbourhood. He also denied that he and Virender had towed any vehicle with the help of tractor and charged Rs. 500/- from accused Akhil Ahuja. Rest of the parts regarding removing of electronic items from the car and tyres along with rims from the car have also been out rightly denied by him.
10.12 PW32 Manjeet Singh, according to the case of prosecution, is the person who had allegedly obliged accused Akhil Ahuja and had removed car accessories from the car which was towed to his shop by accused Akhil Ahuja through said Virender & Ashok. However, PW32 Manjeet Singh has also turned hostile. According to him, accused Akhil Ahuja was not known to him at all and FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 36 of 57 he never came to his shop with any Ford car. He also denied that he had removed any accessories from said Ford car. Despite his exhaustive grilling by the prosecution, he did not state even a single word in favour of prosecution.
10.13 Similarly, PW11 Nanak Chand who used to plug puncture near Goodyear Petrol Pump, Faridabad, Haryana has not supported the case of prosecution. He though admitted that one person had come to him on 03.03.2001 during noon hours and demanded a jack from him but in next breath, claimed that he was not in a position to identify that person at all. He was also cross-examined by the prosecution with the permission of the Court but despite that he failed to identify accused Akhil Ahuja. He also did not support the case of prosecution on other aspects either.
10.14 PW7 Sh. Dhir Singh was the person who owned one maruti van which accused Akhil Ahuja had allegedly hired for returning to Delhi. However, even PW7 Dhir Singh has not supported the case of prosecution. So much so, he has gone to the extent of deposing that he did not own any maruti van at all. He also claimed that he did not know anything about the present case and on 03.03.2001, no one came to him and he also did not go anywhere. Prosecution cross-examined him with the permission of the Court but despite his extensive cross-examination, he did not utter even a single word in favour of prosecution and brusquely denied that accused Akhil Ahuja had boarded his maruti van and tyres with wheels, CD system and that other accessories were ferried in his maruti van by accused Akhil Ahuja and that he brought all those articles as well as accused Akhil Ahuja to Nehru Place that day at about 2.00 PM. He was also shown all such articles but he denied that any such articles were ever ferried or transported in his vehicle by accused Akhil Ahuja.
10.15 According to the further case of prosecution, when all such articles were brought to Nehru Place by accused Akhil Ahuja in said maruti van owned by PW7 Dhir Singh, accused Akhil Ahuja then hired a tempo.
10.16 In this regard, prosecution has relied upon the testimony of PW48 Rajesh Kumar and PW49 Ramesh Chand.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 37 of 5710.17 However, as far as PW48 Rajesh Kumar is concerned, he has not supported the case of prosecution. He deposed that he used to work as casual labourer in front of Nehru Place Park. At about 4-6 years ago, in day hours at around 11-12 noon, he was directed by owner of the stand to pick certain goods from the front of Nehru Place Park and to deliver the same at Petrol Pump in tempo. He also claimed that these goods were packed in bags and cartons. He, however, failed to narrate as to who had booked those goods and, therefore, he was cross-examined by the prosecution but despite his thorough cross- examination, he did not support the case of prosecution. During cross- examination, accused Akhil Ahuja was also pointed out to him and he was specifically asked whether accused Akhil Ahuja had approached him on 03.03.2001 at about 2.30 PM for the aforesaid purpose to which he replied that he did not remember 10.18 PW49 Ramesh Chand was the driver of said tempo and he did depose that some goods were loaded from Nehru Place and were delivered at Petrol Pump Nehru Place. He also identified accused Akhil Ahuja as the person who had accompanied those goods. However, I am not inclined to believe his testimony as in his cross-examination, he made a startling revelation that police had shown him accused Akhil Ahuja at the PS itself. So much so, he also exposed that during investigation, he was detained by police for nine days at PS and during such period of nine days, accused Akhil Ahuja was also with him in the PS. Prosecution has not made it clear as to why prosecution witness, who had ostensibly no role to play in the murder in question, was illegally detained in PS for nine days and was kept in custody along with accused Akhil Ahuja. In such a situation, it is not difficult for me to imagine that he must have given the testimony just to please the police so that he is not further terrorized by the police.
10.19 Be that as it may, entire prosecution story regarding presence of accused Akhil Ahuja in the fields from where dead body was recovered till he allegedly reached Nehru Place is cloaked with murkiness. Almost all the material prosecution witnesses of the aforesaid alleged vital aspects have not supported the case of prosecution. As already been noticed above, PW4 Ashok FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 38 of 57 has not supported the case of prosecution at all and PW26 Virender was not found certain and, therefore, could not properly identify accused Akhil Ahuja. PW11 Nanak Chand, who had allegedly removed tyres of the car and PW32 Manjeet who had allegedly removed accessories from the car have not supported the case of prosecution. PW7 Dhir Singh, who had allegedly provided his maruti van no. HR-29D-3420 has also not supported the case of prosecution. Interestingly, as per DW1 Ajay Kumar, vehicle bearing no. HR-29D-3420 was rather registered in the name of Manoj Kumar and the vehicle bearing said registration number was a maruti car and not a maruti van. PW48 Rajesh Kumar has also not supported the case of prosecution. I do not bestow much importance to the testimony of PW49 Ramesh Kumar as there is distinct possibility that he might have deposed against accused Akhil Ahuja as he was, during the investigation stage, illegally detained for nine days at PS and, therefore, it is quite probable that out of fear, he merely named and identified accused Akhil Ahuja to obviate any further menace from police. Be that as it may, his own colleague PW48 Rajesh Kumar has not supported the case of prosecution. Therefore, testimony of PW49 Ramesh Chand does not seem to be forceful enough.
10.20 End result of my aforesaid discussion is that prosecution has not been able to prove the various links on which it has tried to build up its substantial case whereby it wanted to show that accused Akhil Ahuja had taken the dead body of Lincon Gogna to the fields of Palwal in the car of the deceased for dumping at a remote place.
10.21 Moreover, it is also very astounding and rather mind-boggling as to why accused Akhil Ahuja would try to create a number of witnesses and number of circumstances against himself. If prosecution case is to be believed that he was a very clever, ingenious and astute fellow and since he did not want to leave any clue about his involvement, he did not make any call from his own mobile to Lincon Gogna and then, after killing him, took his dead body in the car of deceased only to a remote area. If the idea was to screen himself and to remain away from the clutches of law then why he would solicit help from number of persons in an apparently suspicious manner when a dead body was already FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 39 of 57 lying close by. If at all the vehicle, in which he had brought the dead body to the fields of Palwal, had broken down, he could have very conveniently left the same there and could have returned to Delhi by some other mode. However, he rather, if I believe the version of prosecution, acted imprudently and thoughtlessly and deliberately created a long list of witnesses and circumstances against him while coming back to Delhi. He virtually invited gallows for him. However, to the utter dismay of prosecution, most of these links have fallen flat which has caused irreparable damage to the case of prosecution.
10.22 Prosecution is also relying upon recovery of some of car accessories from the possession of accused persons. However, prosecution has not been able to prove, in first place, that these accessories were fitted in that car of deceased Lincon Gogna.
10.23 PW5 Sachin Kumar was running a shop of car accessories in Rajouri Garden. He also knew deceased Lincon Gogna. He also knew that Lincon was having one Ford car of cherry color but in his deposition before the Court, he came up with altogether different story. He deposed that he was called at the police station and he was shown several accessories which included one CD Changer, Digital Sound Processor, Tweeters, Stereo & amplifier and he told the police that he did not know anything about those accessories nor he could say whether those accessories belonged to his shop or whether those were fitted in the car of deceased. Since, he did not support the case of prosecution, he was cross-examined by the prosecution but despite such cross-examination, he deposed that it was wrong to suggest that deceased had come to his shop and those accessories were fitted by him in the vehicle of the deceased.
10.24 PW10 Anuj Kumar Sirohi is also an important witness in this regard. He was also running a car accessory shop in Rajouri Garden Market and he had allegedly fitted one TV in the car of deceased Lincon Gogna. Prosecution has relied upon one receipt Ex. PW10/A. I have seen such receipt Ex. PW10/A. It is rather an estimate. This estimate can be prepared by anyone at any stage. Things would have been different had PW10 Anuj Kumar shown some sort of bill FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 40 of 57 book or invoice showing sale of any such TV screen. There is utter confusion whether estimate Ex. PW10/A was handed over to the police by PW10 Anuj Kumar himself or was shown to him by the police during the investigation.
10.25 Naturally, once any such estimate is prepared, it is given to the concerned customer by the concerned shop owner/salesman. Normally, no copy of any such estimate is kept by any such shop.
10.26 Surprisingly, as per the examination of PW10 Anuj Kumar, he himself had handed over such receipt Ex. PW10/A to the police and police had then seized the same. This theory does not click at all. Since, this witness was found suppressing truth, he was cross-examined by the prosecution. He then identified the TV/screen (Ex. P-11) as the one which had been installed by him in the car of deceased but fact remains that there is no bill or invoice showing sale of any such TV to deceased or installation of the same in the car of the deceased. Estimate Ex. PW10/A does not take the case of prosecution anywhere.
10.27 Net result of my aforesaid discussion is that most of the witnesses related to installation of various car accessories and the alleged removal of the same by accused Akhil Ahuja through others and transportation of the same to Delhi have not supported and stuck to the original version as recorded by the police and thus all these material circumstances do not stand established and proved in the desired manner.
Circumstance no. IV: Bloodstained sofa and bloodstained earth control recovered from the house of Miss A situated in GK-II, New Delhi reveal that the murder had taken place in her said house.
&
Circumstance no. VII: Recovery of incriminating
articles/stolen articles, blood stained shirt car accessories at instance of accused Akhil Ahuja.
11.0 Prosecution has strongly relied upon aforesaid recoveries. It has been argued by Sh. Jindal as well as Sh. Yadav that on 06.03.2001, accused FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 41 of 57 Akhil Ahuja was arrested and he had been directed to join the investigation and from his search, one mobile phone make Panasonic was recovered. Such mobile phone contained the Sim Card which belonged to deceased Lincon Gogna. It has also been argued that accused Akhil Ahuja made disclosure statement Ex. PW23/A and led the police party to H. No. S-368, G.K. Part-II, New Delhi from where other two accused persons i.e. Kamal Prasad and juvenile in conflict with law i.e. Miss A were arrested and articles belonging to deceased were recovered. My attention has been drawn towards Personal Search Memo Ex. P-22, Seizure Memo Ex. PW23/F (recovery effected from the house of Miss A), Pointing Out Memo Ex. PW23/G (prepared at the instance of Miss A), Pointing Out Memo Ex. PW23/H (prepared at the instance of accused Akhil Ahuja), Pointing Out Memo Ex. PW23/J (prepared at the instance of accused Akhil Ahuja) and Seizure Memo Ex. PW23/K (whereby the various jewellery articles & other articles, which allegedly belonged to deceased, had been recovered by the police from the house of accused Akhil Ahuja i.e. H. No. 30 G.K. Part-II, New Delhi). Besides aforesaid, prosecution has also relied upon one another seizure memo Ex. PW23/L vide which accused had got recovered various papers related to deceased Licon Gogna which accused had allegedly thrown near Delhi University South Campus. All such seizure memos are dated 06.03.2001.
11.1 It will be very important to mention right here that besides the two police officials i.e. PW59 Rajender Singh and PW60 Insp. Rajender Prasad, police had effected the aforesaid recovery in the presence of one neutral/public witness i.e. PW23 Amit Luthra. Sh. C.L. Gupta, learned defence counsel has vehemently contended that the recovery has been planted and accused was made to sign on various memos and in this regard he has heavily relied upon the testimony of said attesting witness i.e. PW23 Sh. Amit Luthra.
11.2 Needless to emphasize that the recovery can even be proved by the police officials. Nonetheless, when any public person is joined, it becomes significant to observe as to what such public witness has to offer in the witness box.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 42 of 5711.3 I have carefully gone through the testimony of PW23 Amit Luthra and it is manifest that he has not supported the case of prosecution at all. He has deposed that he was working as Collector of Loan Amount and about three years back, he was called at the PS Tilak Nagar by Dinesh Gogna. He also claimed that he knew Dinesh Gogna beforehand. He deposed that at the police station, 5-7 persons were present along with Dinesh Gogna and some police officials were also present but thereafter, he took a complete somersault by claiming that nothing had been done in his presence and no proceedings were drawn by the police in his presence. So much so, he went to the extent of deposing that accused Akhil Ahuja had not made any disclosure statement in his presence. He also deposed that he did not know other two accused i.e. Sizauddin and Kamal Prasad and none of the accused were present in the police station when he was called at the police station. He claimed that he was again called at the police station next day and his signatures were obtained on some papers. He claimed that when he questioned as to why his signatures were obtained, Dinesh Gogna told him that he would make him understand about such aspect later on. He also claimed that no article was seen by him at the police station. Since, he was found resiling from his previous statement, he was cross- examined by the prosecution with the permission of the Court and despite his exhaustive cross-examination, he did not support the case of prosecution. He out rightly denied that police had recorded disclosure statement of accused Akhil Ahuja in his presence. He also denied that any mobile was recovered in personal search of accused Akhil Ahuja. He also denied that accused Akhil Ahuja had led the police party to H. No. S-368, Greater Kailash, New Delhi and got recovered any article from there. He admitted his signatures on various memos and disclosure statement i.e. Ex. PW23/A to Ex. PW23/D, Ex. PW23/E1 to E4, Ex. PW23/F, Ex. PW23/G, Ex. PW23/H, Ex. PW23/J, Ex. PW23/K, Ex. PW23/L & Ex. PW23/M but supplemented that he had signed all such documents at police station at the instance of Dinesh Gogna. So much so, he claimed that these documents were blank when he signed at the police station. He claimed that it was incorrect that since he was won over by the accused, he was disowning his previous statement.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 43 of 5711.4 Undoubtedly, PW59 Insp. Rajender Singh and PW60 Insp. Rajender Prasad have deposed about aforesaid recovery but the testimony of PW23 Amit Luthra has, evidently, created a doubt and furor with respect to the genuineness of all such documents. Moreover, said public witness was an acquaintance of Dinesh Gogna only and there is no reason whatsoever for him to have disowned the prosecution story at all. His deposition before the Court tells a different tale altogether. He has deposed that he was made to sign at police station. According to him, he had rather signed on blank papers and neither any disclosure statement was made by accused in his presence nor any recovery had been effected by the police from anywhere in his presence. In such a peculiar backdrop, despite the positive deposition of two police officials, recovery cannot be said to be totally foolproof.
11.5 Deposition of PW23 Amit Luthra has put a serious question mark over the genuineness of such recovery. Therefore, no significant importance can be given to the same.
11.6 Sh. C.L. Gupta has also argued that even these two police officials have not come up with complete lucidity and there is confusion with respect to the sequence of recovery as well as with respect to the recovery of briefcase. It will not be out of place to mention here that defence has also claimed that testimony of PW45 Dinesh Gogna does not corroborate the prosecution version with respect to the recovery of jewellery articles as PW45 Dinesh Gogna had deposed that police had shown him the jewellery and the car accessories belonging to deceased Lincon Gogna and he identified those at the house of Miss A whereas according to the police, such recovery was not from the house of Miss A and was rather from the house of accused Akhil Ahuja. Thus, according to defence counsel, there is not enough exactitude as to from where such briefcase had been allegedly recovered and where the jewellery articles allegedly contained therein were seen by Dinesh Gogna - whether at the house of accused Akhil Ahuja or at the house of Miss A. 11.7 I would also like to comment here about the testimony of PW8 Anita (mother of Miss A). As per case of prosecution, she was present at her house FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 44 of 57 when police had recovered various car accessories from her house. However, even she has not supported the case of prosecution as she has deposed that she had not seen any such accessories in her house at any point of time. She also claimed that she did not know even accused Akhil Ahuja and she did not know whether Akhil Ahuja was friend of her daughter or not.
11.8 Right here, I would also like to make reference to the testimony of PW50 Lovina (sister of Miss A). According to the case of prosecution, accused Akhil Ahuja had brought deceased to their house on the fateful night. However, she has not supported the case of prosecution at all. She claimed that on 02.03.2001, her mother was away to Mumbai and she remained at her house throughout the day. She also claimed that Miss A was also in her room throughout and till the time she (PW15 Lovina) retired to bed, her sister Miss A had not given any telephonic call to anyone. She also deposed that she did not know accused Akhil Ahuja. So much so, she deposed that Akhil Ahuja had never visited her house and she had never seen him. Despite her grilling by the prosecution, she did not say anything in favour of prosecution.
11.9 Be that as it may, fact remains that since the attesting witness has not supported the case of prosecution and has rather deposed that he was made to sign the blank papers, the recovery does not inspire enough confidence and does not seem to be above board.
Circumstance No. VIII: Receiving of ransom call by Dinesh Gogna from accused Akhil.
12.0 Prosecution has strongly relied upon this circumstance but I have no hesitation in holding that even the aforesaid crucial circumstance has not been proved by the prosecution in any manner whatsoever.
12.1 I have carefully perused the testimony of PW45 Dinesh Gogna. He happens to be the real elder brother of deceased and he received a call from the wife of his brother Lincon Gogna that Lincon had not returned home that night and she also apprised him that the mobile call made to Lincon was picked by FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 45 of 57 some Amit Mahajan who was claiming that Lincon was not well. PW45 Dinesh Gogna also called up Lincon on his mobile but same Amit Mahajan picked up the phone and told him that Lincon was not feeling well. When he asked him to connect him with Lincon Gogna, Amit told him that Lincon was sleeping. Amit also revealed that they had given some liquor to him in the party and Lincon had vomited and, therefore, doctor had been called who had administered some injection and, therefore, he was sleeping. Amit Mahajan also assured Dinesh Gogna not to worry. However, Dinesh Gogna made call to him again after 5-7 minutes and asked said Amit about the address of the house telling further that he was coming there. Said address was revealed as C-131, New Friends Colony. Thereafter, PW45 Dinesh Gogna along with his wife went towards New Friends Colony. One beat constable of that area also met them and accompanied them. Such constable is not a prosecution witness here. When they reached near Escort Hospital, New Friends Colony, a PCR van was found stationed there and when asked about the location of said address, PCR asked them to follow the police gypsy and then they reached near taxi stand. Such PCR officials are also not made witnesses.
12.2 Enquiries were made from the taxi stand and then they learnt that there was no such house in New Friends Colony.
12.3 On this PW45 Dinesh Gogna made a call on the mobile of Lincon Gogna and call was picked up again by same Amit Mahajan and he was told that there was no such number in New Friends Colony. Upon this, said caller i.e. Amit Mahajan revealed that Lincon had been kidnapped by them and he also demanded a ransom of Rs. 20 lacs for his release. He also threatened that if demand was not fulfilled by 11.00 AM, Lincon would be killed. He also told not to tell such fact to the police otherwise they would kill Lincon.
12.4 Thereafter, PCR officials took him to nearby police station from where he learnt that case was of Tilak Nagar area, he was also accordingly advised to go to PS Tilak Nagar. He then came to PS Tilak Nagar and lodged his report vide DD No. 37A. Such DD has been proved as Ex. PW45/A. On the FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 46 of 57 basis of which FIR Ex. PW21/A was recorded. I have seen DD entry as well as contents of FIR and surprisingly factum regarding ransom call is not mentioned therein at all. It is simply mentioned therein that Lincon had not returned home and someone had kidnapped him with intention to kill him. There is no mention of any ransom call. There is no mention of caller Amit Mahajan.
12.5 Sh. Jindal has contended that since Dinesh Gogna was concerned about the well-being of his brother, he might have not immediately disclosed such fact to the police and, therefore, case of the prosecution should not be suspected on this ground alone. I appreciate his contention but then there has to be an assertion to such effect by PW45 Dinesh Gogna.
12.6 In his cross-examination, Dinesh Gogna very categorically claimed that PCR officials were with him when he received such call. He also claimed that those police officials immediately came to know about kidnapping and ransom call. He also claimed that when he went to PS Tilak Nagar, he told all the facts to the concerned officials of PS Tilak Nagar which had already been taken place by that time. He also deposed that he had told the police about the kidnapping and demand of ransom but he did not know as to why such facts were not mentioned in FIR and aforesaid DD.
12.7 Had Dinesh Gogna claimed that keeping in mind the safety of his brother, he tried to conceal such fact at the relevant time, I would have certainly valued the same. Since Dinesh Gogna claimed that he revealed all these facts to the police, these should have been there in the FIR.
12.8 Things do not stop here. FIR was recorded in the early hours of 03.03.2001. If PW45 Dinesh Gogna is to be believed then he recorded such conversation on his mobile phone and then transferred the same from his mobile to an audio cassette and handed over such audio cassette to the police on 19.03.2001. He also identified such cassette as Ex. P-32.
12.9 I take a little pause here. Prosecution has not been able to offer any explanation much less a cogent one as to why Dinesh Gogna did not hand over FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 47 of 57 the conversation-piece to the police then and there. This would have been very crucial for investigational purpose but for the reason best known to Dinesh Gogna, he kept such alleged conversation-piece with him for sixteen days. It should have rather been given to the police without any delay so that if required, proper headway on this crucial score was made and the mobile was immediately put under complete surveillance.
12.10 Again that particular mobile handset, through which PW45 Dinesh Gogna had allegedly recorded the conversation, has not seen the light of the day. If he is to be believed then the original conversation was recorded in a mobile phone which conversation was later on transferred to an external device i.e. an audio cassette. In such a situation, the cassette is liable to be excluded from the scope of appreciation of evidence for want of mandatory certificate under Section 65B of Indian Evidence Act.
12.11 Even otherwise, such cassette was played during the trial and the extract of such conversation is as under:-
Caller: Bhai sahab mein kay bolon aap ko. (Brother, what should I say to you).
Dinesh: Acha (Right).
Caller: Woh dhanda karte hain, main unka chamcha hoon.
Unka matlab sirf paise se hai. (They do the business and I am one of their yes-man. They are concerned only with money).
Dinesh: Hoon (Right).
Caller: Na unhone uska kuch lena, na unhone hamko kuch
dena. Unko paisa chahiye. Unhone sar mein marna hai usko, chatni dalni hai unhone uski. Sidhi baat Samjho. (Neither they are concerned with him (Lincon), nor they are to give us something. They are concerned with only money. Try to nderstand).
Dinesh: Matlab, aap hamein time to do kuch. (I mean at
least you give us sometime).
12.12 Obviously, such conversation does not contain even a remote
reference to any ransom demand of Rs. 20 lacs. Dinesh Gogna has an
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 48 of 57
incredible answer. According to him, he could not record the entire conversation as his mobile phone had limited capacity chip. Therefore, said portion could not be recorded.
12.13 Another extraordinary twist was given by Sh. Dinesh Gogna as he claimed that aforesaid caller had made call from the mobile of Lincon Gogna to his mobile when he was present at PS Tilak Nagar and it was noon time. He claimed that the police officials were also present at the PS and he was asked by the police to get the conversation recorded and accordingly he got the conversation recorded. He also deposed that he got the contents transferred from mobile to an audio cassette from market and then handed over the cassette to the police.
12.14 The entire story regarding making of any ransom call and regarding conversation is thus found masked with uncertainty and improbability. There is not enough consistency and clarity and it is not comprehensible as to where exactly such ransom call was received by Dinesh Gogna. It is not made clear as to why if any such call was received at the PS, police did not incorporate such vital fact in the case diary. It is not clear as to why the conversation-piece was handed over to police after sixteen days. It is not made clear as to why said mobile phone has not been produced before the Court for necessary corroboration. Moreover, nobody knows who is this Amit Mahajan? There is nothing before me which can show that Dinesh was in any position to identify the voice of such caller. There is no forensic report on this aspect either.
Investigating agency did not bother to collect specimen voice sample of accused Akhil during investigation if at all, it felt that caller was none other than accused Akhil Ahuja. All these things create an obvious doubt with regard to the theory of making any ransom call or receiving of any ransom call.
12.15 Motive, in a case of murder based on direct evidence, is of little importance but if the case is based on circumstantial evidence, then motive assumes greater magnitude. By and large, there is motive behind every criminal act and that is why Investigating Agency as well as the Court, while examining the complicity of an accused, tries to ascertain as to what was the motive on the FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 49 of 57 part of the accused to commit the crime in question though only perpetrator knows what exactly travels through his mind.
12.16 In the case of TARSEEM KUMAR V. DELHI ADMN, 1995 CRI. L. J. 470 SC it has been held that in a case based on circumstantial evidence , motive for committing crime on part of accused assumes greater importance. In RAMESH GOVIND THAKUR V. STATE OF MAHARASHTRA 2008 CRI. L. J. 2169 BOM also, it has been made clear that in a case based on Circumstantial evidence, failure to prove motive is a plus point in favour of accused. It was observed that motive may not be relevant in a case where the evidence is overwhelming, but it is a plus point for the accused in cases where the evidence is only circumstantial.
12.17 Here, the state has come up with a specific motive but has not been able to prove the same. It is really intriguing as to why accused Akhil had murdered Lincon Gogna and that too at a house of girl at dead hour of the night. There are other girls also who had conversation with them on phone. If at all, there was any angle of exploiting money from him, they would not have killed him in such a haste. After all, Akhil had allegedly called deceased on birthday party and he never imagined that Lincon would be coming with anything substantial much less gold ornaments. He was not called with any treasure. It is really inexplicable as to how accused Akhil was able to anticipate the unforeseen and unexpected and planned conspiracy with Miss A. It is really intriguing as to why he would plan his murder that night when he was to come virtually empty- handed. There is certainly something more than what meets the eyes. Something very important or personal, it seems, has been hidden from the court and the true genesis has not been portrayed before the court at all. There is surely some another angle which has been smartly concealed by some persons who are rather cited as prosecution witnesses. Police either knew about such other angle or did not try to investigate properly to reach the motive.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 50 of 57Circumstance No. IX: Non-explanation by accused Akhil Ahuja as to why police would implicate him in a serious case related to murder and ransom.
13.0 In a serious criminal trial like this, prosecution is not justified in seeking shifting of the burden.
13.1 It is the primary duty of prosecution to prove its case. Merely because accused has no explanation as to why he has been arrested in the present case would not mean and tantamount to hold that prosecution story is nothing but gospel truth.
13.2 Reference in this regard be made to Ten Singh Vs. State (Delhi Admn) 1996 (1) RCR Page 342 wherein it has been held that if accused was not able to give any reason for his false implication, it would not mean that Court would believe the prosecution case observing further that it was difficult for the accused to know the reason behind his false implication.
ROLE AND INVOLVEMENT OF A-2 KAMAL PRASAD 14.0 As far as accused no. 2 Kamal Prasad is concerned, as per the case of prosecution, he was employed as domestic help at the residence of Ms. A and the murder in question had taken place at that house and after murder, accused Kamal Prasad, as per the directions of his employer, had cleaned-up the room where the murder had taken place and thereafter he was also instrumental in dumping the body in the car which was ultimately driven away by accused Akhil Ahuja to the fields of Palwal.
14.1 There does not seem to be any real debate with respect to the fact that accused Kamal Prasad was employed as servant in said house. PW15 Lovina, sister of Miss A has also deposed so before the Court and there is no suggestion to the contrary.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 51 of 5714.2 However, there is no witness who can probably prove that accused Kamal Prasad was also present that day in the house much less that he assisted his co-accused. I have seen the testimony of PW15 Lovina. She has not supported the case of the prosecution as she has claimed that she did not even know accused Akhil Ahuja and she out rightly denied that on 02/03/2001, accused Akhil Ahuja had visited their house. She is also totally silent on the aspect of presence of Kamal at the house on the fateful night. There is no other witness who might have seen accused Kamal Prasad at said house said night and causing any act of disappearance of evidence.
14.3 Sh. Jindal has, however, contended that testimony of PW12 Pradeep Singh is very obvious on this crucial aspect of the case. He had seen with his own eyes that two boys and a girl were putting one boy in the car. I have already minutely scrutinized the testimony of PW12 Pradeep Singh. I have already noticed above that April issue of Manohar Kahaniya (Ex. PW12/DA) contained photographs of two boys but fact remains that none was of accused Kamal Prasad. One photograph was of accused Akhil Ahuja and the other one was of deceased.
14.4 It is really astonishing as to how PW12 Pradeep Singh has been able to identify accused Kamal Prasad of whom he had a mere fleeting glimpse. Moreover, it was dead hour of the night and it is not realistic to hold that Pradeep Singh, when he had made verbal inquiries at about 4.00 a.m., would be able to note all the peculiar and distinctive features of those two persons and would be able to identify them with consummate ease. Moreover, the day, he saw such issue of Manohar Kahaniya, he contacted the police and same day in the court premises, he identified accused Kamal Prasad as well which fact is not palatable.
14.5 Accused Kamal Prasad has been charged for offence u/s 201/202 IPC only. He is not charged for any conspiracy related to murder.
14.6 Merely because he was employed as domestic help in that house would not, in itself, be sufficient to hold that he had committed any specific act FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 52 of 57 with respect to causing disappearance of any evidence.
14.7 I, therefore, do not find any sufficient material against him.
ROLE AND INVOLVEMENT OF A-3 SIZAUDDIN 15.0 Accused Sizauddin has been charged for offence u/s 411 IPC only. According to prosecution, he had knowingly or dishonestly received five stolen tyres from accused Akhil Ahuja.
15.1 I have carefully perused the testimony of PW16 Salimuddin.
15.2 He happens to be the owner of the shop in question. According to him, he had given that shop on rent to accused Sizauddin who was dealing in sale and purchase of old tyres. He, however, also deposed that in his presence, accused Sizauddin had not purchased any tyre from anyone.
15.3 In his cross-examination, he changed the complexion of the case to a considerable extent. He claimed that he did not have any rent deed or rent note in order to show that he had given his said shop on rent to accused Sizauddin. So much so, he did not possess any rent receipt to substantiate the factum of such tenancy. He also mentioned about one Islamuddin, maternal uncle of accused Sizauddin. In next breath, he took a flip over by claiming that he had inducted Sh. Islamuddin as tenant in his said shop and did not know the exact status of accused Sizauddin in such shop. He claimed that he was not aware whether accused Sizauddin was working there as a servant or not. He claimed that Islamuddin used to sit at said shop and used to manage the business.
15.4 Such testimony of PW16 Salimuddin has not done any good to the case of prosecution. It rather creates a doubt with respect to the status of accused Sizauddin in said shop. It is not clear whether he was the actual tenant in the said shop. It is not clear whether he used to manage and run business being conducted at said shop.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 53 of 5715.5 Moreover, as already noticed above, public witness i.e. PW23 Amit Luthra has not supported the case of prosecution. According to prosecution, accused Sizauddin had made disclosure statement and had admitted his involvement in the present matter in the presence of PW23 Amit Luthra and thereafter the tyres were also recovered from his shop. Such alleged disclosure statement of accused Sizauddin has been proved as Ex. PW23/D but PW23 Amit Luthra has categorically deposed that his signatures had been obtained on some blank papers and no such disclosure statement was made by anyone in his presence. Similarly, signatures appearing on seizure memo Ex. PW23/M though have been admitted to be of attesting witness Amit Luthra but Amit Luthra has categorically deposed that he was made to sign blank papers. He has denied any such recovery from accused Sizauddin in his presence. Undoubtedly, the other two witnesses i.e. PW52 ASI Gyan Singh and PW60 Inspector Rajender Prasad have deposed about such recovery but the testimony of public witness has caused irreparable damage to the case of prosecution and has rather put a serious question mark over such recovery of stolen tyres from the possession of accused Sizauddin.
OTHER INVESTIGATIONAL ASPECTS 16.0 I have seen the testimony of various other police officials as well as of concerned autopsy surgeons.
16.1 There does not seem to be any doubt that death in question is homicidal one. PW1 Dr. Shruti Kant and PW9 Dr. Tek Chand Bundela have proved the autopsy report as Ex. PW1/A and cause of death was asphyxia as a result of strangulation which was sufficient to cause death in the ordinary course of nature. Such strangulation was ante-mortem in nature and there were other injuries noted in the autopsy report which were also opined to be ante-mortem in nature.
16.2 According to Sh. Jindal, one such injury i.e. injury no. 4 had been given by the accused with the help of an iron rod having heavy base . As per doctors, injury no. 4 was possible with described weapon of offence i.e. iron rod FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 54 of 57 with heavy base (Ex. P-40). It rather seems that such rod and base were part of a lamp stand. However, such type of iron rod of heavy base is not unusual type of object. Moreover, it is already noticed above that weapon of offence had been seized by the police from the house of Miss A vide seizure memo Ex. PW23/F and the public witness i.e. PW23 Amit Luthra and mother of Miss A have out rightly denied any such recovery. As regards injury no. 5, specific opinion was sought during investigation whether it was postmortem and ante- mortem in nature. PW9 Dr. Tek Chand deposed that as far as injury no. 5 was concerned, it was ante-mortem in nature. However, possibility of injury being postmortem in nature could also not be ruled out as per his deposition.
16.3 PW3 Sh. Rajesh Kumar Gupta was employee of Lincon Gogna and he has undoubtedly deposed that while leaving, Lincon Gogna had taken along four gold bangles (ladies) besides 10 gold bangles which were to be shown as sample to the customers. He also identified all such articles but fact remains that in his cross-examination, he also admitted that he had been detained at PS for 3-4 days and these ornaments were never shown to him during TIP or at PS Tilak Nagar. He never claimed during investigation that he was in a position to identify those ornaments as such fact is not mentioned in his statement Ex. PW3/DA which had been recorded under Section 161 Cr.P.C.
16.4 I have carefully scrutinized the testimony of various police officials of PS Sadar Palwal. I have also seen testimony of PW31 SI Sita Ram, PW59 ACP Rajender Singh and PW60 ACP Rajender Prasad who remained associated with the investigation. However, their testimony is naturally required to be appreciated in the backdrop of the testimony of prime witnesses. Investigating officers are merely collectors of evidence and it is really disheartening to see that a substantially large number of prosecution witnesses have turned hostile. Such en-bloc hostility of crucial witnesses has shaken the very foundation of case of prosecution. All these witnesses have no interest in common with the accused and, therefore, there is no reason to disbelieve about what they deposed in the Court.
FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 55 of 57CONCLUSION 17.0 Sh. Jindal has finally contended that it is the prime duty of the Court to ensure that there is no miscarriage of justice. According to him and Sh. Yadav, miscarriage of justice can also accrue from any acquittal of a guilty man. It has also been argued that merely because some of the witnesses have turned hostile would not make the entire prosecution story suspicious. It has been argued that it is the duty of the Court to disengage the truth from falsehood. It has also been contended that there is ring of truth in the prosecution story and it should not be discarded merely because some of the witnesses deviated from their previous stand. Reliance in this regard has been placed on State of Haryana Vs. Surender & Ors. 2007 (IV) AD (Crl.) (SC) 79 and State of Haryana Vs. Krishan JT 2008 (12) SC 627.
17.1 I can only remind them that the prosecution has to satisfy the Court that all the circumstances from which the inference of guilt is sought to be drawn are firmly and cogently established and all these circumstances unerringly point towards the guilt of the accused. It is also to be shown by the prosecution that all such circumstances form a complete chain leaving no scope of gathering even an inkling of any fact which may be inconsistent with the guilt of the accused. It is also settled position of law that suspicion, howsoever, grave cannot be a substitute of a proof.
17.2 In the instant case, prosecution has not been able to prove its case to the hilt. There is not sufficient material on record that it was accused Akhil Ahuja who was present at Hotel Park Royal and who had called deceased there. Testimony of PW12 Pradeep Kumar is also found to be not inspiring and convincing enough. Prosecution did not show any respect to the mandatory provision of Section 65B of Indian Evidence Act and, therefore, the electronic evidence cannot be given any significant consideration. Recovery becomes doubtful in view of the hostile testimony of independent witness PW23 Amit Luthra who was rather an acquaintance of father of deceased. Theory of ransom call also does not stand proved and prosecution has not been able to substantiate the motive angle in the desired manner. Various other witnesses FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 56 of 57 have also not supported the prosecution version.
17.3 Needless to re-emphasize, it is a case resting on bunch of circumstances. There is no eyewitness of the alleged murder. During course of arguments, I was also apprised that case of Miss A had already been closed by the concerned Juvenile Justice Board.
17.4 Be that as it may, no one can be held guilty merely on the basis of estimation and guess work. Surmises and conjectures have no place in a criminal trial more so in a serious most case involving a murder.
17.5 I am, therefore, compelled to grant benefit of doubt to all the three accused persons. They all are accordingly acquitted of all the charges levelled against them in the present case. Their bail bonds are cancelled. Their previous sureties are discharged. Superdarinama, if any, is also cancelled and superdar
(s) is/are discharged.
17.6 All the three accused persons are, however, directed to furnish personal bonds and surety bonds in a sum of Rs. 25,000/- each in terms of Section 437A Cr.P.C. and would ensure that neither they nor their respective sureties change their addresses for a period of six months from today without intimation in writing to the Court.
17.7 File be consigned to Record Room.
Announced in the open Court (MANOJ JAIN) On this 8th day of July 2015. Addl. Sessions Judge (FTC) North-West District: Rohini: Delhi FIR No. 103/01 PS Tilak Nagar (State Vs. Akhil Ahuja etc) Page 57 of 57