Delhi District Court
State vs Pintu Yadav on 29 February, 2024
IN THE COURT OF MS.SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-05, WEST,
TIS HAZARI COURTS, DELHI.
CNR No. DLWT01-001140-2014
Sessions Case No. 56984/2016
FIR No. 381/2014
PS Patel Nagar
Under Section 302/392/458/120B/411/34 IPC
State
Vs.
1. Pintu Yadav
S/o Sh.Sarju Yadav
R/o Village Jabdam PS Hunterganj,
District Chattra, Jharkhand.
2. Ravi @ Revadhar Joshi
S/o Sh.Niladhar Joshi
R/o Needa PS & District Champawat,
Uttrakhand.
3. Arun Yadav
S/o Sh.Ishwar Yadav
R/o Village Dhandhu PS Hunterganj,
District Chattra, Jharkhand.
4. Pankaj Yadav
S/o Sh. Lakhan
R/o Vilage Saherghati,
PS - Gurwa, District Gaya,
Bihar.
Case No. 56984/2016 FIR No. 381/2014 Page 1 of 80
State v. Pintu Yadav & others PS - Patel Nagar
Date of Institution : 09.09.2014
Date of Committal : 30.09.2014
Charge framed Under Section : 302/458/392/120/34/411
IPC against all accused
persons.
Date of conclusion of final : 19.02.2024
arguments and reserving
judgment
Date of Pronouncement of : 29.02.2024
judgment
Final Judgment : All accused persons
convicted for the charge
U/s. 302/458/392/120B/34
IPC. However, acquitted
for the charge under
Section 411 IPC.
JUDGMENT
Brief Facts :
1. Accused persons namely Pintu Yadav, Ravi @ Revadhar Joshi, Arun Yadav and Pankaj have been facing trial for Charge under Sections 458/34 IPC (hereinafter referred to as 'IPC'), 392/34 IPC, 302/34 IPC and under Section 120B IPC as well as for the offence punishable under Section 411 IPC for committing murder of Sh.Rohit Sethi during commission of robbery in his house which was designed on lurking house trespass by night after preparation to Case No. 56984/2016 FIR No. 381/2014 Page 2 of 80 State v. Pintu Yadav & others PS - Patel Nagar hurt/assault pursuant to hatching criminal conspiracy and recovery of the robbed articles were also made after the incident.
Registration of FIR and investigation conducted at the spot :
2. As per the prosecution, on 12.06.2014, at 07:00 AM, an information was received vide DD No. 15A that a theft has been committed in H. No. 5/28, West Patel Nagar, Medicare, near DAV Public School, Delhi. On receipt of said DD No. 15A, SI Nitesh, who was present in the Police Station alongwith police staff went to the spot by Government vehicle bearing No. DL-1C-J-3640 driven by Ct.Naresh after verification call vide DD No. 16A at about 07:05 AM. At spot, the police found articles were scattered in one of the room at ground floor of the said house. In the second room, there were light blood stains on the pillow lying over the sofa cum bed.
The police came to know that the injured namely Mr. Rohit Sethi was taken to Patel Hospital. In the meanwhile, IO received DD No. 17A at about 07:40 AM to the effect that Mr. Rohit Sethi was declared 'brought dead' in the hospital. Thereafter, SI Nitesh left for hospital while leaving Ct. Sandeep at the spot. In the hospital, the Investigating Officer SI Nitesh alongwith Sh. Prem Nagpal went to the emergency ward where the dead body of deceased Mr. Rohit Sethi was lying. Investigating Officer inspected the dead body and found that blood had oozed out from the mouth and nose of the deceased and his tongue was in between the teeth. There was light Case No. 56984/2016 FIR No. 381/2014 Page 3 of 80 State v. Pintu Yadav & others PS - Patel Nagar swelling on his face and abrasions on his stomach and chest. His Vest (baniyan) was smeared with blood. IO/SI Nitesh prepared the rukka and sent Ct.Rakesh to Police Station for getting the FIR registered. Thereafter, Inspector Ranjeet Dahiya reached there and prepared Form 25.35 and dead body of deceased was sent to the mortuary of DDU hospital. Thereafter, Inspector Ranjeet Dahiya alongwith SI Nitesh reached the spot, where Crime Team was present. The spot was inspected and certain photographs were taken by the photographer. Chance prints were also lifted. Two steel glasses, plastic bottle (Fanta 2 litres) having some water and empty bottle of liquor on which 'Blander Pride-750 ml' was written, were taken into possession after sealing the same with the seal of RSD. Pillow cover having light blood stains alongwith green colour bed sheet was also sealed with the seal of RSD and taken into possession by the Investigating Officer. Thereafter, Ct. Rakesh came to the spot after registration of the FIR and handed over the copy of FIR and original rukka to the Investigating Officer.
Statement of Prime Witness/ Complainant Sh.Prem Nagpal recording during investigation :
3. Thereafter, during investigation, subsequent IO/Inspector Ranjeet Dahiya recorded the statement of witness Sh.Prem Nagpal under Section 161 Cr.P.C., wherein he stated that he is a businessman and knew Mr. Rohit Sethi for the last 20 years being his friend. Mr.Rohit Sethi was a retired Major from Army. He used Case No. 56984/2016 FIR No. 381/2014 Page 4 of 80 State v. Pintu Yadav & others PS - Patel Nagar to visit the house of Rohit Sethi. Son of Mr. Rohit Sethi has been residing in Singapore with his family and Mr. Rohit Sethi was residing with his mother Smt. Kailash Sethi. There was PG accommodations on the first and second floor of the house of Mr. Rohit Sethi. One boy namely Ravi was working there for the last 3- 4 years for looking after the PG/tenants. The said boy Ravi had left the services of said Rohit Sethi in between those 3-4 years, however at the time of incident, he was working there for the last six months.
4. It has been further stated by Sh. Prem Nagpal that on 11.06.2014 at about 06:00 PM, Mr. Rohit Sethi asked him to visit his house for going to park. Thereafter, they both went to the park and returned to the house of Mr. Rohit Sethi, where Mr. Rohit Sethi informed that he had employed a new boy namely Pankaj 2-3 days ago. On seeing the said boy, he did not find his body language proper. He asked Mr. Rohit Sethi to get police verification of Pankaj and at about 09:00 PM, he returned to his house.
5. It is further stated by Sh. Prem Nagpal that on 12.06.2014, at about 07:00 AM, one neighbour of Rohit Sethi namely Sh. Sanjeev Gandharv informed him over telephone that someone has killed Rohit Sethi. He reached the house of Rohit Sethi and sat with the mother of Rohit Sethi. He noticed that inside the house the articles were scattered and servant Pankaj was not present. Thereafter, he reached at Patel Hospital where he found dead body of Mr. Rohit Sethi. He noticed that blood had oozed out from the mouth and nose Case No. 56984/2016 FIR No. 381/2014 Page 5 of 80 State v. Pintu Yadav & others PS - Patel Nagar of Rohit Sethi and there were also abrasions on his stomach. He had suspicion that Pankaj alongwith his associates had killed Rohit Sethi with intention to rob him. On the statement of Sh. Prem Nagpal, FIR was registered for the offence punishable under Sections 302/394/34 IPC through Ct. Rakesh.
Further investigation conducted after recording the statement of complainant:
6. Thereafter, further investigation was conducted in the present case. Statements of HC Hari Kishan, Finger Print proficient, Ct.Virender, Photographer, Crime Team Central District and SI Dhan Singh, and IC Crime Team were also recorded under Section 161 Cr.P.C. by the Investigating Officer.
7. As per the Investigating Officer, the role of Ravi Joshi who was also the caretaker of PG accommodation, in commission of offence was suspicious and therefore, he was called at the Police Station for interrogation. However, the other servant of the deceased namely Pankaj was not found in the house. The mobile numbers of Pankaj and Ravi were collected. Mother of the deceased, who was 94 years old was present in the house, however, she was unable to speak and hear due to her perplex condition. One maid servant namely Smt.Prem Lata was also present there, who was looking after mother of the deceased. She was interrogated and stated that in the night, she was sleeping with Smt.Kailash Sethi. In the morning, Case No. 56984/2016 FIR No. 381/2014 Page 6 of 80 State v. Pintu Yadav & others PS - Patel Nagar Smt. Kailash Sethi called her son Rohit, however, the door of their room was locked from outside. She called the servant and asked him to open the door. Caretaker Ravi was called and after checking, Mr.Rohit Sethi was found lying in unconscious state on the sofa, smeared with blood. She raised alarm on which neighbours came there and Rohit Sethi was taken to hospital.
8. During investigation, Sh.Vipin Sethi, brother of deceased was also found present in the house of Rohit Sethi by the Investigating Officer, who informed about the robbery of jewelery and utensils committed in the house. Locations of mobile phones of accused Ravi and accused Pankaj were analyzed which revealed that on the day of incident, both of them had conversation with each other. The location of accused Pintu was detected nearby the house of deceased and all the four accused persons were continuously in the contact with each other. Interrogation was made from accused Ravi, who disclosed his involvement alongwith accused Pankaj, Arun and Pintu in the commission of the offence. The disclosure statement of accused Ravi was recorded and he pointed out the place of incident and got recovered the robbed articles from his room from a black bag and handed over to the Investigating Officer. Thereafter, on the secret information, accused Arun Yadav and accused Pintu Yadav were arrested, who also disclosed their involvements alongwith their associates in the commission of the offence. They also disclosed that they have divided the robbed articles. Their disclosure statements Case No. 56984/2016 FIR No. 381/2014 Page 7 of 80 State v. Pintu Yadav & others PS - Patel Nagar were recorded. One mobile phone make Samsung and cash of Rs.
2,200/- were recovered from the jeans of accused Pintu Yadav, which was out of the robbed amount. Accused Pintu Yadav disclosed that some utensils also came to his share as well as in the share of accused Arun which they were kept under a tree. The said mobile phone and cash of Rs. 2,200/- were taken into possession by the Investigating Officer.
9. Accused Arun Yadav got recovered one black colour purse in which Rs.3,150/- were kept and the same was part of the robbed amount. He also disclosed that some utensils, which came to his share were kept under a tree. Investigating Officer took in possession the abovesaid cash of Rs.3,150/-. Thereafter, both accused persons namely Pintu Yadav and Arun Yadav also got recovered one white colour bag from the tree wherein jewelery articles and utensils were kept. In the meanwhile, on the place of recovery of said articles, Sh.Prem Nagpal also reached and joined the investigation. Thereafter, at the instance of accused Arun, accused Pankaj Yadav was apprehended, who was 17 years old at that time. Therefore, proceedings were conducted by JWO SI Vinay and he recorded the version of JCL 'P'. On personal search of JCL, two mobile phone and cash of Rs.6,500/- were recovered from his possession. Clothes of accused persons were taken into possession by the Investigating Officer. After the apprehension of JCL, he was produced before the JJB-I. Case No. 56984/2016 FIR No. 381/2014 Page 8 of 80 State v. Pintu Yadav & others PS - Patel Nagar
10. On 13.06.2014, postmortem on the body of deceased was conducted and thereafter, dead body of the deceased was handed over to his son namely Mr. Gaurav Sethi. The opinion of doctor regarding cause of death was collected wherein doctor had opined that the cause of death is due to cumulative effect of asphyxia secondary to construction of neck structure as a result of manual strangulation and smothering, consistent of history provided. Result of gastric lavage and blood sample of Smt. Prem Lata were also collected, wherein RT lavage clear, not altered and no particles were found. Statement of Smt. Prem Lata was recorded. Exhibits were sent to the FSL. Scaled site plan was prepared. TIP of robbed articles was conducted wherein Vipin Sethi, brother of the deceased had identified the articles. Thereafter, on completion of investigation, charge-sheet for the offences punishable under Section 302/394/411/34 IPC was filed against accused Pintu Yadav, Arun Yadav and Ravi @ Revadhar Joshi. Separate proceedings were conducted against JCL 'P'. However, vide order dated 22.09.2014 passed by the JJB-I, JCL 'P' was declared major. Hence, supplementary charge-sheet was also filed against accused Pankaj before the concerned Court.
The Trial Charge :
11. Charge for the offences punishable under Sections 458 IPC, 392 IPC and 302 IPC, all read with section 34 IPC, under section Case No. 56984/2016 FIR No. 381/2014 Page 9 of 80 State v. Pintu Yadav & others PS - Patel Nagar 120B IPC and for the offence punishable under Section 411 IPC were framed against accused persons namely Pintu Yadav, Ravi @ Revadhar Joshi, Arun Yadav and Pankaj by the Ld. Predecessor Court on 04.12.2014, to which they pleaded not guilty and claimed trial.
Prosecution evidence :
12. To prove its case against the accused persons, the prosecution had examined 26 witnesses, that is, PW-1 HC Kushal Malik (duty officer), PW-2 ASI Narender Singh (PCR Call Receiver), PW-3 Sh.Vipin Sethi (brother of deceased), PW-4 HC Hari Kishan (Finger Prints proficient), PW-5 SI Dhan Singh (Incharge, Mobile Crime Team), PW-6 Sh. Prem Nagpal (Complainant/friend of deceased), PW-7 Ct. Virender Singh (Photographer, Mobile Crime), PW-8 Dr. Harsh Mehra (examined Rohit Sethi and declared him'brought dead'), PW-9 Sh. Pradeep Singh (Alternate Nodal Officer, Vodafone Mobile Services Ltd.), PW-10 Inspector Mahesh Kumar (Draftsman), PW-11 Smt.Prem Lata (Maid of deceased), PW-12 Dr. Narayan Dabas (conducted postmortem on the body of deceased), PW-13 Dr. Debashis (examined the maid of deceased namely Smt.Prem Lata), PW-14 Sh.Sanjay Kumar (Private photographer for postmortem examination), PW-15 SI Nitesh Nehra (Investigating Officer), PW-16 Ct. Satender Kumar (witness of investigation), PW-17 Sh. Sanjeev Gandharv (neighbour of Case No. 56984/2016 FIR No. 381/2014 Page 10 of 80 State v. Pintu Yadav & others PS - Patel Nagar deceased), PW-18 Sh. Pratap Goswami (servant of the neighbour of deceased), PW-19 Ct.Rakesh Kumar (witness of investigation), PW- 20 Dr. Rajesh (deposed on behalf of Dr.Seema Shah, who examined Smt.Prem Lata), PW-21 Inspector N.K. Sharma (Finger Prints Expert), PW-22 Ms. Amita Raghav (Jr.Forensic/Chemical Examiner (Biology), FSL, Rohini), PW-23 HC KR Sanjay (took the exhibits and deposited in the FSL), PW-24 Ct. Hawa Singh (Spl. Messenger for serving copy of FIR to the concerned Ld.MM, Joint CP and DCP concerned), PW-25 Retired Inspector Ranjit Dahiya (SHO/IO of this case), PW-26 Inspector Vinay Kumar (Witness of investigation), PW-27 Sh. M.L.Meena (Sr.Scientific Officer (Chemistry), FSL,Rohini) and PW-28 HC Rajesh Kumar (MHCM).
The relevant portion of their testimony is discussed in the following paragraphs.
13. PW-1 HC Kushal Malik is duty officer, who had deposed that on 12.06.2014, at about 08:55 AM, he received one rukka brought by Ct. Rakesh sent by SI Nitesh Nehra for registration of FIR and on the basis of which he got FIR No. 381/2014 registered under Section 302/394/34 IPC, proved as Ex.PW-1/A through computer operator, vide DD No. 20A and made his endorsement on the rukka, proved as Ex.PW-1/B. He has produced the roznamcha register containing DD No. 20A as Ex.PW-1/C, DD No. 22A as Ex.PW-1/D, DD No. 15A as Ex.PW-1/E, DD No. 16A as Ex.PW-
1/F and DD No. 17A as Ex.PW-1/G. Case No. 56984/2016 FIR No. 381/2014 Page 11 of 80 State v. Pintu Yadav & others PS - Patel Nagar
14. PW-2 ASI Narender Singh is the PCR call receiver, who had deposed that on 12.06.2014 at 06:52 AM, one PCR call was received in the police station which was attended by him, wherein he was informed '5/28 West Patel Nagar, near Delhi Medicos, घर मम चचरर' and the number of the caller was 8447163654. After taking out the print out of the call from PA-100, proved as Ex.PW-2/A, he gave the same to duty officer.
15. PW-3 Sh. Vipin Sethi is brother of deceased and he has deposed that on 12.06.2014, he received a telephonic call from Prem Nagpal at about 07:15 AM who informed him that Rohit had received injuries and told him to reach his house. He picked Mr. Prem Nagpal from his house and went to his younger brother's house Rohit Sethi. There were lot of persons standing outside the house of his brother and he came to know that his brother was shifted to Patel Hospital. On reaching Patel hospital, he saw the dead body of his brother and noticed that his face was swollen and blood was oozing from the nose and the doctor told him that his brother had died. From the hospital, he again went to his brother's house i.e. 5/28, West Patel Nagar, to console his mother aged about 93 years and told her that his brother had been shifted to hospital. He went inside the house and found that all the articles were scattered and almirahs were also opened. He came to know that Rs. 15,000/- - Rs. 16,000/-, one mangal sutra make of gold and black beads, one gold tie pin with red stone, some silver articles i.e. one Case No. 56984/2016 FIR No. 381/2014 Page 12 of 80 State v. Pintu Yadav & others PS - Patel Nagar tea pot, four bowls, one spoon, one chain and mobile phone were missing. He also noticed blood on the sofa in lobby. He further deposed that he used to frequently visit his brother's house, as his mother was residing there.
15.1. He further deposed that on 10.06.2014, he alongwith his family had visited his brother's house as he had invited him for dinner. His brother Rohit had employed new servant namely Pankaj. PW-3 has correctly identified accused Pankaj before the Court. He further deposed that the silver articles, which were found missing from the house of his brother were of his forefathers and his mother used to show these articles to him.
15.2. He has further deposed that he knows Ravi, who had been employed by his brother Rohit Sethi prior to Pankaj. He also identified accused Ravi before the Court. He further deposed that after returning to the house of deceased from the hospital, he did not find Pankaj at the house of deceased. Thereafter, he was called to the Court of Ms. Aditi Garg, Ld. MM on 08.07.2014 at Tis Hazari Courts and identified the silver items vide TIP proceedings, proved as Ex.PW-3/A. 15.3. He also identified the case property one kettle with lid as Ex. P.1, four bowls as Ex.P.2(colly.), one spoon as Ex.P.4, one bracelet as Ex.P.3, one beads white chain of silver like material (ममलम) as Ex.P.5, Mangal Sutra as Ex.P.6, Pendent with silver chain as Ex.P.7, one golden colour Tie Pin as Ex.P.8, blue colour mobile Case No. 56984/2016 FIR No. 381/2014 Page 13 of 80 State v. Pintu Yadav & others PS - Patel Nagar phone as Ex.P.9, blackberry mobile phone as Ex. P.10 and one black & red colour Samsung mobile phone with battery and without Sim card as Ex.P.11, which have been stolen from the house of Rohit Sethi.
16. PW-4 HC Hari Kishan, Finger Prints proficient, PW-5 SI Dhan Singh, Incharge and PW-7 Ct. Virender Singh, photographer, Mobile crime team, were the part of Mobile Crime Team, who reached at the spot soon after the reporting of the crime. They have deposed that on 12.06.2014 at about 08:30 AM, on receiving information, they went to 5/28, Ground Floor, West Patel Nagar, Delhi in Government vehicle. At the spot, SI Nitesh Nehra, Inspector Ranjeet Dahiya of PS Patel Nagar and other police staff met them. The Crime Team Photographer/PW-7 took 19 photographs, proved as Ex.PW-7/A1 to Ex.PW-7/A19 of the spot. Negatives of the same are proved as Ex.PW-7/B1 to Ex.PW-7/B20. 16.1. PW-4 HC Hari Kishan examined the scene of crime and lifted 10 chance prints, that is, Q-1 to Q-10. The Crime Team inspected the spot from 08:45 AM to 10:30 AM and PW-5 SI Dhan Singh prepared his detailed report proved as Ex.PW-5/A and submitted the same before Investigating Officer.
17. PW-6 Sh. Prem Nagpal, Complainant/friend of deceased Rohit Sethi is the star witness of the prosecution. He deposed that he knew deceased Rohit Sethi for the last 20 years as he was his friend. Deceased Rohit Sethi was retired from Indian Army from the Case No. 56984/2016 FIR No. 381/2014 Page 14 of 80 State v. Pintu Yadav & others PS - Patel Nagar rank of Major. He has visiting terms with the deceased. Deceased had only one son, who resided at Singapore with his family and Rohit Sethi was residing with his old aged mother at 5/28, West Patel Nagar, Delhi on the ground floor. On the upper storyes of the house, deceased Rohit Sethi was running a PG accommodation and he had employed one person namely Ravi for cooking and other work in the paying guest accommodation for the last four years. Twice Ravi had left the job but again he joined in the said accommodation for work with deceased Rohit Sethi. PW-6 correctly identified accused Ravi before the Court. 17.1. He further deposed that on 11.06.2014, at about 06:00 PM, Rohit Sethi made a call to him and told him to visit his house as they had to go for evening walk in the park. Accordingly, he visited the house of Rohit Sethi and met him outside his house, thereafter, they went for walk in the park "Rock Garden". After 1¼ hours, they returned from park to the house of Rohit Sethi via market. After reaching the house of Rohit Sethi, the deceased informed him that he had employed new servant namely Pankaj one or two days ago. He saw Pankaj, who was present there and was introduced by Rohit Sethi. At that time, the body language of accused Pankaj was not proper. He asked Rohit Sethi to get the police verification done of accused Pankaj and left the house of Rohit Sethi at about 09:00 PM. PW-6 identified accused Pankaj before the Court.
Case No. 56984/2016 FIR No. 381/2014 Page 15 of 80State v. Pintu Yadav & others PS - Patel Nagar 17.2. On 12.06.2014, at about 07:00 AM, he received call from one Sh. Sanjeev Gandharv, neighbour of Rohit Sethi, who informed him that Rohit Sethi was murdered by someone. On receiving this information, he immediately rushed to the house of Rohit Sethi, where he sat with mother of deceased Rohit Sethi. He noticed the household articles in the house were scattered and accused Pankaj was not present there. Thereafter, he visited Patel Hospital and saw Rohit Sethi was lying dead and he noticed that blood was oozing from his nose and there were scratches marks on his chest. Thereafter, police made inquiries and recorded his statement, proved as Ex.PW-6/A. 17.3. On 12.06.2014, he came to know from his friend that two persons have been arrested in connection with the present case by the police in South Patel Nagar. He reached there and noticed that police had apprehended two persons namely Arun and Pintu Yadav at Metro Pillar No. 197. He has correctly identified both the said accused persons before the Court. He further deposed that on 11.06.2014, when he was returning from the park alongwith deceased Rohit Sethi after evening walk at about 07:45 PM- 08:00 PM, he noticed that accused Arun and Pintu Yadav were talking with accused Pankaj at the back side gali of the house of deceased. Accused Arun had earlier worked at the house of deceased for about 1½ months as a servant. Since, accused Arun had committed theft Case No. 56984/2016 FIR No. 381/2014 Page 16 of 80 State v. Pintu Yadav & others PS - Patel Nagar at the house of deceased, he was removed from the service by the deceased.
17.4. He further deposed that both the accused disclosed that they had concealed the looted articles in the open space of stem of Bargad tree in front of H.No. 13, South Patel Nagar. Thereafter, accused Arun and Pintu got recovered a "Potli" from the open space of Bargad tree in front of house No. 13, South Patel Nagar, Delhi. The said potli was opened by the police and found silver utensils, that is, kettle, katrori, spoon, mala, bracelet etc. The said articles were kept in a pullanda and sealed and the same was taken into possession vide seizure memo as Ex.PW-6/B. The witness has also identified the abovesaid articles, that is, kettle, katrori, spoon, mala, bracelet etc., proved as Ex.P.1 to Ex. P.5 before the Court.
18. PW-8 Dr. Harsh Mehra, Casualty Medical Officer, who has deposed that on 12.06.2014, at about 07:30 AM, patient Rohit Sethi was brought in the casualty of the hospital by neighbours and friends as he was found unconscious by nurse of the house around 06:45 AM. He attended the patient and he was found unconscious and not responding. Body was in cadaveric spasm condition. After examination, he declared the patient dead. The body was handed over to HC Nihar Singh. The patient was wearing some jewelery, which was mentioned in the emergency registration card Ex.PW- 8/A. Thereafter, the dead body was taken to Lady Harding hospital for further course of action.
Case No. 56984/2016 FIR No. 381/2014 Page 17 of 80State v. Pintu Yadav & others PS - Patel Nagar
19. PW-9 Pradeep Singh produced the CAF, CDR and certificate under Section 65B of the Indian Evidence Act of mobile numbers of the accused persons. He proved CAF as Ex.PW-9/A of mobile number 9811874922 of accused Pintu Yadav, photocopy of his voter I/D card as Ex.PW-9/B, CDR of said mobile number, running in three pages from 01.06.2014 to 15.06.2014 as Ex.PW-9/C and certificate under Section 65B of the Indian Evidence Act as Ex.PW-9/D. 19.1. He also proved CAF as Ex.PW-9/E of mobile number 9582198319 of accused Arun Yadav, photocopy of his voter I/D card as Ex.PW-9/F, CDR of said mobile number, running in three pages from 01.06.2014 to 15.06.2014 as Ex.PW-9/G and certificate under Section 65B of the Indian Evidence Act as Ex.PW-9/H. 19.2. He proved CAF as Ex.PW-9/J of mobile number 8447163654 of accused Reva Dhar, photocopy of his voter I/D card as Ex.PW- 9/K, CDR of said mobile number, running in three pages from 01.06.2014 to 15.06.2014 as Ex.PW-9/L and certificate under Section 65B of the Indian Evidence Act as Ex.PW-9/M. 19.3. He also proved CAF as Ex.PW-9/N of mobile number 8373937250 of Reena (stated to be used by accused Pintu), photocopy of his voter I/D card and PAN Card as Ex.PW-9/O, CDR of said mobile number, running in three pages from 01.06.2014 to 15.06.2014 as Ex.PW-9/P and certificate under Section 65B of the Indian Evidence Act as Ex.PW-9/Q. Case No. 56984/2016 FIR No. 381/2014 Page 18 of 80 State v. Pintu Yadav & others PS - Patel Nagar
20. PW-10 Inspector Mahesh Kumar/Draftsman, Crime Branch has deposed that on 04.07.2014, he was summoned by Inspector Ranjit Singh Dahiya, SHO PS Patel Nagar, accordingly he reached at PS Patel Nagar and from there he went to H. No. 5/28, West Patel Nagar, Delhi. At the ground and first floor of the house, he was shown the spot by the IO and hence, he took rough notes and measurements at the instance of the IO and prepared scaled site plan as Ex.PW-10/A and handed over the same to the IO.
21. PW-11 Smt. Prem Lata/maid of the deceased has deposed that in the year 2014, she was working as maid at the house of Sh. Rohit Sethi as his mother was operated. She had to take care of his mother at his house, situated at Patel Nagar. She further deposed that on 11.06.2014, she alongwith Rohit Sethi, his mother, Ravi and Pankaj was present at the house of Rohit Sethi. Ravi was working as servant at the house of Rohit Sethi earlier to her employment. Pankaj had come there as servant about 3-4 days prior. One person Arun had worked for about 7-8 days in the house of Rohit Sethi and thereafter, he had left the job of Rohit Sethi. She had joined the said job in the house of Rohit Sethi around 2 months prior to 11.06.2014. On 11.06.2014, they had gone for sleep around 12 mid night. They had taken food after serving Mataji (mother of deceased). On that night, accused Pankaj had given her cold drink for consumption. She had denied initially to consume cold drink, but he insisted to consume the same as it would be digestive. Then she consumed the Case No. 56984/2016 FIR No. 381/2014 Page 19 of 80 State v. Pintu Yadav & others PS - Patel Nagar cold drink. She directed accused Ravi to lock the gate of the house. Then accused Ravi directed accused Pankaj to put a lock on the gate, but she again directed accused Ravi to put the lock on the gate. Saying so, she bolted the door of her room from inside and went to sleep with Mataji. Rohit Sethi had slept on a wooden plank and they slept in the room.
21.1. She further deposed that woke up in the morning around 05:30 AM after hearing the cries of Mataji. She was crying like "रचहहत रचहहत उठम कयय नहह". She woke up and saw Matajit was in the room. The door of the room was bolted from outside. She opened the latch of back door of the room and came in the courtyard and raised her voice in the name of Laxman, who was servant in the adjoining house. Laxman had come and she directed Laxman to call Ravi, as Ravi used to sleep on the upper floor. In the meantime, several persons gathered there including some boys, who used to reside on the upper floor. Somebody opened the door of the room and they came outside the room and saw that Mr. Rohit Sethi was lying dead on the wooden plank. Blood was oozing from his nose. He was taken to hospital. She was feeling dizziness almost the whole of the day. Accused Pankaj was not present in the house at that time. Accused Ravi had come. She saw that household articles in the house of Rohit Sethi were lying scattered. Almirahs were lying open. The witness had correctly identified accused Ravi, Pankaj and Case No. 56984/2016 FIR No. 381/2014 Page 20 of 80 State v. Pintu Yadav & others PS - Patel Nagar Arun before the Court and deposed that they were working as servant in the house of Rohit Sethi.
22. PW-12 Dr. Narayan Dabas, Sr. Resident, Department of Forensic Medicine, Dr.B.S.A.hospital, Rohini, Delhi has deposed that on 13.06.2014, at 01:40 PM, he proceeded to conduct postmortem examination on the dead body of Rohit Sethi aged about 70 years, male sent by Inspector Ranjeet Dahiya, PS Patel Nagar alongwith 15 inquest papers and concluded the postmortem examination at 03:05 PM on the same day.
22.1. On general examination, subconjunctival hemorrhage was present in both the eyes. On External examination following injuries were present over the body:-
(1) Abraded contusion 1.5 x 1 cm was present over right alae of nose.
(2) Multiple abraded contusion over an area of 3x 1.5 cm were present over left alae of nose; varying in sizes from 1 x 0.2 cm to 1.5 x 0.5 cm.
(3) Multiple abraded contusion reddish in colour, of shapes crescentric (nail mark) to irregular, over an area of 11 x 9 cm were present over right side of face, situated 5 cm below the outer angle of right eye; varying in sizes from 0.2 x 0.2 cm to 4.5 x 1.5 cm.
(4) Multiple abraded contusion reddish in colour, of shapes crescentric (nail marks) to irregular, over an area of 12x11 cm Case No. 56984/2016 FIR No. 381/2014 Page 21 of 80 State v. Pintu Yadav & others PS - Patel Nagar were present over left side of face, situated 4 cm below the outer angle of left eye; varying in sizes from 0.3x0.2 mm to 3x1 cm.
(5) Laceration measuring 0.5x0.1 cm was present over the inner aspect of lower lip associated with contusion measuring 5x3 cm.
(6) Fresh loss of bilateral lower central incisor was present. (7) Contusion, bluish, measuring 4x3 cm was present over the inner aspect of upper lip.
(8) Nail mark (abrasion), reddish in colour, measuring 1.3x0.2cm was present over the neck on right side, situated 9 cm above and 2 cm away from the suprasternal notch.
(9) Multiple contusion bluish in colour over an area 8x5 cm were present over the right side of neck: varying in sizes from 0.220.2 cm to 1.5x1 cm, situated 3.5 cm below the right mastoid.
(10) Multiple contusion, bluish in colour over an area of 18x10 cm were present over the right side of neck, right shoulder and arm, varying in sizes from 0.3x0.2cm to 3x1cm.
(11) Abraded contusion reddish in colour measuring 3x0.7 cm was present over right side of neck, situated 3 cm below the chin.
Case No. 56984/2016 FIR No. 381/2014 Page 22 of 80State v. Pintu Yadav & others PS - Patel Nagar (12) Confusion, reddish in colour measuring 2x1 cm were present over chin on right side.
(13) Nail mark (Abraided contusion), reddish in colour measuring 1x0.2 cm was present over the left side of neck, situated 9 cm above and 2 cm away from de suprasternal notch.
(14) Abrasion, reddish in colour measuring 1.3 x 0.2 cm was present over the neck on left side, situated 7 em above the suprasternal notch.
(15) Abraded contusion, reddish in colour measuring 3x0.6 cm was present over front of neck in midline, situated 11 cm above the suprasternal notch.
(16) Abraded contusion, reddish in colour measuring 1x0.5 cm was present over left side of neck, situated 12 cm above the suprasternal notch.
(17) Abraded contusion, reddish in colour measuring 1x0.2 cm was present over right front of neck, situated 1 cm above the suprasternal notch.
(18) Multiple contusion, bluish in colour over an area of 6 x 4 cm were present over the left shoulder tip, varying in sizes from 0.3 x 0.3 cm to 1.5 x 1 cm.
(19) Abraded contusion, reddish in colour measuring 15 x 7 cm was present over outer aspect of left arm, situated 13 cm below the left shoulder tip.
Case No. 56984/2016 FIR No. 381/2014 Page 23 of 80State v. Pintu Yadav & others PS - Patel Nagar (20) Abraded contusion, reddish in colour measuring 28 x 13 cm was present over abdomen on both sides, situated 14 cm above the public symphysis.
(21) Multiple abraded cession, reddish in colour measuring 108 cm was present over from of the left knee and leg:
varying in sizes from 0.2x 0.2 cm to 4x2.5 cm. (22) Contusion bluish in colour measuring 2x1 cm was present over back of right arm, situated 12 cm below the elbow.
(23) Contusion bluish in colour measuring 5x2 cm was present over back of chest on right side, situated & 5 cm below the posterior axillary fold.
22.2. On internal examination, contusion of strap muscles of neck on both sides corresponding to the external injuries over neck were present. Inward compression fracture of hyoid bone was present on left side associated with contusion of surrounding soft tissues (suggestive of manual strangulation) Trachea contained frothy fluid. He further deposed that blood in gauze piece, blood and viscera, fingernail clippings of both hands and clothes were preserved. Exhibits were packed, sealed with the seal of 'DFMT, DDU hospital' and handed over to the IO. The time since death was 12-24 hours prior to the postmortem examination. The cause of death was due to cumulative effect of asphyxia secondary to constriction of neck structure manual strangulation and smothering, consistent with the Case No. 56984/2016 FIR No. 381/2014 Page 24 of 80 State v. Pintu Yadav & others PS - Patel Nagar history provided. Manner of death was homicide and all injuries were fresh, antemortem in nature and of the same duration. The detailed report of PW-12 is proved as Ex.PW/12/A (running into five sheets).
23. PW-13 Dr. Debashis, Sr. Resident, Lady Harding hospital, Delhi has deposed that on 14.06.2014, at 12:40 PM, Prem Lata w/o Sh. Jitender Singh was brought in the hospital by Ct. Rakhi for medical examination with alleged history of ingestion of unknown substance. He examined her and found her alert conscious and oriented. Gastric lavage and blood sample of Prem Lata was taken, sealed and handed over to Ct. Rakhi. She was referred to Department of medicines. She was fit for statement. Her MLC proved as Ex.PW-13/A was prepared by PW-13.
24. PW-14 Sh. Sanjay Kumar, Private Photographer has deposed that on 13.06.2014, he was called by Inspector Ranjeet Dahiya of PS Patel Nagar and thereafter, he was taken to DDU hospital, mortuary where he took 26 photographs proved as Ex.PW- 14/A.1 to Ex.PW-14/A.26 of postmortem proceedings in respect of deceased Rohit Sethi as per direction of autopsy surgeon. He had taken the photographs from his digital camera. Thereafter, he had delivered the photographs to the IO after getting it developed from the private lab.
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25. PW-15 SI Nitesh Nehra is 1 IO of this case. He has deposed all the facts about the investigation conducted by him in the present case, as per the final report.
26. PW-16 Ct. Satender Kumar, PW-19 Ct.Rakesh Kumar, PW-25 retired Inspector Ranjit Dahiya and PW-26 Inspector Vinay Kumar are police officials/IOs who have deposed about all the investigation conducted by them as per the final report.
27. PW-17 Sh. Sanjeev Gandharv, friend of deceased has deposed that he knew Major Rohit Sethi because of party (BJP) activities. He does not remember the date, month or the year, when he received a phone call from RSS office informing that there was some trouble in the house of Major Rohit Sethi and he was advised to reach to his house. After reaching the house of Rohit Sethi i.e. 5/28, West Patel Nagar, he noticed an ambulance was parked outside his house and people had gathered there as Rohit Sethi was being shifted in the ambulance to Patel hospital. When he saw him on the stretcher, he noticed blood under his nose. He reached hospital by foot as it was at a walking distance of 5 to 7 minutes. Major Rohit Sethi was declared brought dead in the hospital.
28. PW-18 Sh. Pratap Goswami has deposed that he used to cook in the house of Sh. K.L.Rahi and also working as driver at 6/3, West Patel Nagar since the year 2005. He further deposed that on 12.06.2014, at about 06:30 AM, he had come out of the house to Case No. 56984/2016 FIR No. 381/2014 Page 26 of 80 State v. Pintu Yadav & others PS - Patel Nagar clean the car of his employer. Mother of Rohit Sethi residing in the house situated opposite to 6/3, West Patel Nagra, was standing outside. The maid of Rohit Sethi called him that mother of Rohit Sethi was calling him. The house number of Rohit Sethi is 5/28, West Patel Nagar. He went near the main entrance gate of said house. Mother of Rohit Sethi was inside the entrance gate, the entrance gate was locked from inside. Mother of Rohit Sethi told him that Rohit Sethi is not waking up and he should go on the back side of her house to call their servant Ravi from the second floor of that house to get the main gate open. The back gate of that house was open. He entered from the back gate of that house and went upstairs to second floor. He knocked the door at the second floor. Door was opened by Ravi and he conveyed Ravi that mother of Rohit was calling him downstairs as Rohit Sethi was not opening the door. He came downstairs and resumed his work of cleaning the car. After cleaning the car, he went inside and narrated the incident to his employer Sh. K.L.Rahi. He informed him that Sh.Sethi was not opening the door. His employer came outside his house to inquire about the matter. A lot of neighbours had also gathered by that time. Ravi was also standing near the gate to open it. Ravi was making call but he cannot say to whom he had made the call. Later on, on the same day, he came to know that Rohit Sethi has been murdered.
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29. PW-20 Dr Rajesh, Sr. Resident Lady Hardinge hospital was deputed by the Medical Superintendent of said hospital on behalf of Dr. Seema Shah who had left the services of the hospital and her present address was not available in the record. PW-20 Dr.Rajesh could identify the handwriting and signatures of Dr. Seema Shah as he had worked with her. PW-20 has identified the handwriting and signatures of Dr. Seema on the document proved as Ex.PW-20/A. He further deposed that as per record, patient Prem Lata was brought to hospital with alleged history of consumption of some sedative mixed in some cold drink given by the servant in the same house three days back. She was initially examined in the casualty and then referred to medicine department. The patient was examined by Dr. Seema and lavage was taken. The patient was conscious and oriented at that time.
30. PW-21 Inspector N.K.Sharma, Finger Prints Expert has deposed that on 21.07.2014, he examined 10 questioned chance prints numbered as Q.1 to Q.10 which were received from mobile crime team, Central District in the present case. On examination, 09 chance prints numbered as Q.1 to Q.3 and Q.5 to Q.10 were found smudged and so unfit for comparison. The chance prints marked as Q.4 was partial and could not be searched on record of finger print bureau. He gave his detailed report, proved as Ex.PW-21/A in this regard.
Case No. 56984/2016 FIR No. 381/2014 Page 28 of 80State v. Pintu Yadav & others PS - Patel Nagar 30.1. He further deposed that on 20.08.2014, three specimen Palm prints of accused Arun Yadav, Pintu Yadav and Ravi Joshi were received in their office of Finger prints Bureau for comparison of these specimen with the chance print marked as Q.4. He examined the chance print Marked Q.4 with the specimen palm prints of three above named accused persons and opined that the chance print Q.4 is not identical with the palm prints of the above three accused persons. He prepared his detailed report proved as Ex.PW-21/B in this regard. He further deposed that the chance prints marked as Q.4 was partial and only of palm print. So only palm prints of above named three accused persons were sent for comparison and same were compared by him.
31. PW-22 Ms. Amita Raghav, Jr. Forensic/Chemical Examiner (Biology), FSL, Rohini, Delhi has deposed that on 14.7.2014, eight sealed parcels alongwith specimen seals were received in the office of FSL from P.S Patel Nagar in connection with the present case and same were marked to her for examination and after breaking the seal, the same were examined by her. The blood was detected on all the exhibits except the Exhibit No. 4a i.e. one Nicker of deceased. DNA was isolated from the source of all the exhibits except Exhibit No. 4a and male DNA profile was generated except exhibit la ie, one blanket cover. She further deposed that on examination of DNA profiles, she opined that the source of Exhibit 5 (gauze cloth piece of deceased) is similar with the DNA profile Case No. 56984/2016 FIR No. 381/2014 Page 29 of 80 State v. Pintu Yadav & others PS - Patel Nagar generated from source of Exhibits Ib (pillow cover), 2a and 2b (clothes of accused Arun), 3a and 3b (clothes of accused Pintu), 4b (Baniyan of deceased), 6, 7 (nails of deceased) and 8 (blood sample of deceased). She prepared her detailed report dated 28.2.2018, proved as Ex.PW22/A. After examination, the remnants of exhibits have been sealed with the seal of FSL Am R DELHI.
32. PW-23 HC KR Sanjay has deposed that on 14.07.2014, he took the exhibits of the present case from the MHC(M) in sealed condition alongwith RC No. 56/21 and FSL form and deposited all the exhibits in the FSL and obtained the acknowledgment receipt. Thereafter, he handed over the acknowledgment receipt and copy of RC to the MHC(M). During the period, the exhibits remained in his custody, same were not tampered with in any manner.
33. PW-24 Ct. Hawa Singh/Spl. Messenger has deposed that on 12.06.2014, duty officer called him and handed over the copy of FIR of the present case in envelop to handover the same to concerned MM, Joint CP and DCP and he handed over the same.
34. PW-27 Sh.M.L.Meena, Sr. Scientific Officer (Chemistry), FSL, Rohini has deposed that on 14.07.2014, one sealed polythene parcel duly sealed with the seal of" DFMT DDU HOSPITAL" was received in the office and same was marked to him for chemical examination. The seal on the parcel was found intact and tallied with specimen seal forwarded with parcel. He opened the sealed polythene parcel and same was marked as Exhibits 1A, 1B and IC.
Case No. 56984/2016 FIR No. 381/2014 Page 30 of 80State v. Pintu Yadav & others PS - Patel Nagar After examination, he had given his opinion that on chemical Microscopic, TLC & GC-HS examination, (i) Exhibits 'IA' 'IB' and 'IC were found to contain Ethyl Alcohol, (ii) Exhibit 'IC was found to contain Ethyl Alcohol 28.2mg/100ml of blood. After examination, the remnants of the exhibits have been sealed with the seal impression of "MLM FSL DELHI" and returned to the forwarding authority. His detailed report in this regard is proved as Ex.PW-27/A.
35. PW-28 HC Rajesh Kumar is the MHC(M) who has deposed that on 12.06.2014, the then SHO/IO Inspector R.S Dahiya had deposited nine sealed pullandas duly sealed with the seal of RSD, six pullandas duly sealed with the seal of 'DFMT DDU HOSPITAL' alongwith seven sample seals. IO had also deposited Jamatalashi of four accused persons and he had mentioned these things in detail in register No. 19 at Sr. No. 2456, proved as Ex.PW-28/A. He further deposed that on 14.07.2014, he handed over viscera to the Ct. Kumar Sanjay to deposit the same to FSL Rohini vide RC No. 56/21/14 and he had also mentioned the same in register No. 19 at Sr.No. 2456 and had also mentioned the same in register No. 21 vide RC No. 56/21/14, proved as Ex.PW-28/B. He further deposed that on 14.07.2014, he had also sent eight sealed pullandas alongwith seven seals to FSL Rohini through Ct. Kumar Sanjay to deposit the same through RC No. 57/21/14, proved as Ex.PW- 28/C and he had also mentioned the same in register No. 19 at Sr. Case No. 56984/2016 FIR No. 381/2014 Page 31 of 80 State v. Pintu Yadav & others PS - Patel Nagar No. 2456. He had also mentioned the same in register No. 21 vide RC No. 57/21/14. After depositing the above said case properties, Ct. Kumar Sanjay had handed over acknowledgment of the same to him. No alteration or addition had taken place in the said case property during my possession.
36. Prosecution evidence was closed vide order dated 05.08.2022 on submissions of Ld. Addl. PP for the State that all the prosecution witnesses have been examined.
Statements of accused persons Under Section 313 Cr.P.C.
37. After prosecution evidence was over, on 02.02.2023, accused persons namely Pintu Yadav and Ravi @ Revadhar Joshi were examined under Section 313 Cr.PC, wherein they reiterated their innocence. Accused Ravi @ Revhadhar Joshi chose to lead defence evidence, however, accused Pintu Yadav chose not to lead evidence in his defence. Thereafter, statement of accused persons namely Arun Yadav and Pankaj Yadav under Section 313 Cr.pC was recorded on 04.02.2023 and 25.02.2023 respectively wherein they also reiterated their innocence and chose not to lead evidence in their defence. Thereafter, on 11.05.2023, on the request of accused Ravi @ Revadhar Joshi, his defence evidence was closed as he was not able to trace the defence witness.
Case No. 56984/2016 FIR No. 381/2014 Page 32 of 80State v. Pintu Yadav & others PS - Patel Nagar
Final Arguments:
38. The Court has heard the final arguments as advanced by Mr. M.A.Khan, Ld. Addl. P.P. for the State and Ms. Poonam Bakshi, Ld. Counsel for accused Pintu Yadav & Ld.Amicus-curiae for accused Arun Yadav; Sh. Shadman Ali, Ld. Counsel for accused Ravi; Sh.Sushil Kumar Pandey, Ld. Counsel for accused Pankaj Yadav and has gone through the entire material available on record including written submissions.
Arguments address on behalf of the Prosecution by Mr.M.A.Khan, Ld.Addl. P.P. for the State :
39. It is submitted by the Ld.Addl. P.P. for the State that in the present matter, the prosecution has cited three type of witnesses i.e. Public witnesses which are PW-3 Sh.Vipin Sethi, PW-6 Sh.Prem Nagpal, PW-11 Smt.Prem Lata, PW-14 Sh.Sanjay Kumar, PW-17 Sh.Sanjeev Ghandharv and PW-18 Sh.Pratap Goswami; Police witnesses which are PW-1 HC Kushal Malik, PW-2 ASI Narender Singh, PW-4 HC Hari Kishan, PW-5 SI Dhan Singh, PW-7 Ct.Virender Singh, PW-10 InspectorMahesh Kumar, PW-15 SI Nitesh Nehra, PW-16 Ct.Satender Kumar, PW-19 Ct.Rakesh Kumar, PW-21 InspectorN.K.Sharma, PW-23 HC K R Sanjay, PW-24 Ct.Hawa Singh, PW-25 retired Inspector Ranjit Dahiya, PW-26 InspectorVinay Kumar and PW-28 HC Rajesh Kumar and lastly Expert witnesses which are PW-8 Dr.Harsh Mehra, PW-12 Case No. 56984/2016 FIR No. 381/2014 Page 33 of 80 State v. Pintu Yadav & others PS - Patel Nagar Dr.Narayan Dabas, PW-13 Dr. Debashis, PW-20 Dr. Rajesh, PW-22 Ms. Amita Raghav, Jr.Forensic/Chemical Examiner, FSL, Rohini, PW-27 Sh.M.L.Meena, SSO (Chemistry), FSL Rohini, Delhi and PW-9 Sh.Pradeep Singh, Alternate Nodal Officer.
40. He has further argued that PW-3 Sh.Vipin Sethi is the brother of deceased and he has identified the case property recovered from or at the instance of accused persons before the Court. He has also identified accused Ravi and Pankaj as servant in the house of deceased. He has further argued that PW-6 Sh.Prem Nagpal is the complainant, who identified all the four accused persons and has also identified the Potli recovered at the instance of accused Arun Yadav and Pintu Yadav and case property has also been identified by him before the Court. He further argued that PW-6 has also deposed about the motive and circumstance of the incident.
41. It is further argued that PW-9 Sh. Pardeep Singh is the Nodal Officer, who proved the same location and calls exchanged between all the accused persons and hence, the communication is proved between all the accused persons at the time of incident. PW-11 Smt.Prem Lata is the maid in the house of deceased and she had correctly identified accused Ravi, Pankaj and Arun Yadav before the Court. She has also deposed that the pills have been given by the accused to her and the other circumstances of this case. It is further argued that PW-12 Dr.Naryan Dabas has proved about the smoothening and manual strangulation consistent with history Case No. 56984/2016 FIR No. 381/2014 Page 34 of 80 State v. Pintu Yadav & others PS - Patel Nagar provided in the Postmortem report. It is further argued that PW-15 SI Nitesh Mehra is the IO of this case and he proved about the arrest and disclosure statement of all the accused persons, recovery of stolen articles from all the accused persons. He also argued that the blood stained clothes of accused Pintu Yadav and Arun Yadav have been matched in the FSL result however, the finger prints could not be matched. It is further argued that PW-15 has also deposed about the conduct of the maid, deposition of complainant and investigation conducted at the scene of crime. He further argued that the version of PW-6 Sh.Prem Nagpal, PW-11 Smt. Prem Lata and PW-16 Ct. Satender have corroborated the version of IO qua the investigation of this case.
42. It is further argued by the Ld.Addl. P.P. for the State that the present matter is based on the circumstantial evidence and the chain is complete; motive has been proved by the prosecution and the prosecution has proved the present case against all the accused persons and none else than the accused persons have murdered the deceased. Thus, it is stated by the Ld. Addl. PP for the State that accused be convicted for all the offences for which they have been charged.
Arguments on behalf of accused persons namely Pintu Yadav and Arun Yadav :
Case No. 56984/2016 FIR No. 381/2014 Page 35 of 80State v. Pintu Yadav & others PS - Patel Nagar
43. It is argued by Ms. Poonam Bakshi, Ld.Counsel for accused Pintu Yadav and Ld.Amicus-curiae for accused Arun Yadav that the tehrir was made on the basis of statement given by PW-6 on 12.06.2014 at about 08:40 AM, as per the ravangi report mentioned on the tehrir however, in the cross-examination of PW-6 on 09.07.2015, he has deposed to have given the statement to the police at around 11:30 AM/ 12 noon on 12.06.2014. Hence, the reliability of this witness is in issue.
43.1. Per contra, it is submitted by the Ld. Addl. P.P. for the State that statement of PW-6 Sh. Prem Nagpal was recorded under Section 161 Cr.P.C. on the same day regarding recovery of stolen articles and that was supplementary statement which was recorded around noon time.
44. She has further argued that PW-6 Sh.Prem Nagpal is only friend of deceased, therefore, cannot identify the robbed articles of deceased specially Mangal Sutra. She further argued that no bills of robbed articles have been shown by the family members of the deceased. Hence, PW-6 Sh. Prem Nagpal is not a trustworthy witness.
45. She has further argued that only PW-6 Sh.Prem Nagpal has identified accused Pintu before the Court. It is further argued that PW-6 deposed in the cross-examination that police had done the videography at the time of recovery of articles from Bargad tree but no such video is on record.
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46. She has further argued that accused Ravi was very much present after the incident as PW-18 Sh.Pratap Goswami had called accused Ravi and at that time, he was present in the house and further accused Ravi had called the PCR which was also proved by PW-2 ASI Narender Singh. Hence, his involvement in the crime is highly improbable. It is further argued that though Dr. Ashok Oberoi and Mr. S.S. Bhatt accompanied the deceased in the ambulance but their statements have not been recorded by the police and they have not been cited as witness in the present matter by the IO. She has further argued that no list of missing articles was ever prepared by the police before their recovery. She further argued that the medical examination of PW-11 Smt. Prem Lata was conducted after 2-3 days of the alleged incident. It is further argued that the alleged pills given to the house maid PW-11 were neither recovered nor any witness has been examined on the said point. She further argued that prosecution failed to prove on record that the cash recovered from the accused persons actually belongs to the deceased. She further argued that the back door of the house was stated to be open when PW-18 entered the house from the same in the morning so there is every possibility that some other persons than the present accused persons have entered the house and committed the offence. It is further argued that no foot prints were collected from the spot. So loose end has been left by the prosecution/Investigating Agency hence the accused persons cannot be convicted on the basis of Case No. 56984/2016 FIR No. 381/2014 Page 37 of 80 State v. Pintu Yadav & others PS - Patel Nagar presumption and circumstantial evidence when the chain is not complete. She further argued that the spot is a posh densely populated locality of Delhi hence it is not possible that there is no CCTV camera in and around the spot though no efforts have been made by the police to trace the same. She further argued that the clothes which were stated to be worn by the accused persons at the time of arrest having blood stains never belonged to them. It is further argued that as per the prosecution case, the clothes worn by the accused persons were seized but it remained unexplained from where their other clothes were arranged. It is further argued that as per the prosecution story, the accused persons were arrested in the evening of the incident at 04:10 PM while wearing the blood stained clothes, however, there is no likelihood of the same.
47. It has been lastly argued by Ld. Counsel Ms.Poonam Bakshi that no inquest proceedings were ever conducted. 47.1 Per contra, it is argued by the Ld.Addl. P.P. for the State that in the present matter, no inquest proceedings were required to be conducted by the concerned SDM as this is not the case of dowry death or death in Judicial Custody/Police Custody.
Arguments addressed on behalf of accused Ravi :
48. It is argued by Sh.Shadman Ali, Ld. Counsel for accused Ravi that PW-18 has reflected the conduct of accused Ravi as when PW- 18 went to the room of Ravi, he was asleep and was very much Case No. 56984/2016 FIR No. 381/2014 Page 38 of 80 State v. Pintu Yadav & others PS - Patel Nagar present in the house of deceased. He has further argued that accused Ravi came downstairs to see the deceased alongwith Dr. Praisy Garg, who was one of the resident of PG run by the deceased. Statement of Dr. Praisy Garg was recorded under Section 161 Cr.P.C. by the IO as he was the first person to check the vitals of deceased but he has not been cited as witness by the prosecution. Dr. Praisy Garg has also stated in his statement that accused Ravi was the PCR caller which has also been proved on record by PW-2 mentioning the mobile number of accused Ravi, corroborated by PW-15 and PW-25.
49. He has further argued that Mr. S.S.Bhatt, who accompanied the deceased to the hospital in the ambulance, as per the version of PW-15, has also not been examined as witness by the prosecution and his statement under Section 161 Cr.P.C. has not been recorded.
50. The entire conduct of accused Ravi as told by the numerous witnesses only shows that accused Ravi was present during the night of the alleged incident in the house of deceased as well as the next day when the deceased was found dead. Accused Ravi has not fled away from the spot and this clearly shows that he had no motive of robbery as putforth by the prosecution as had that been the case, he would have fled away with the stolen articles after execution of alleged crime. He has further argued that as per testimonies of PW- 15 and PW-25 i.e. the intial IO and the main IO, accused Ravi had never tried to flee from the spot and he was taken to PS by the Case No. 56984/2016 FIR No. 381/2014 Page 39 of 80 State v. Pintu Yadav & others PS - Patel Nagar police from the house of deceased itself. He has further argued that as per the CDR, the location of accused Ravi was constant at the spot till his arrest.
51. He further argued that no call was made by accused Ravi to other co-accused persons during the intervening night of alleged incident and his phone was used by the helper Rahul. 51.1. Per contra, Ld.Addl. P.P. for the State argued that name of such person namely Rahul has never come on record that he was helper of Ravi and the exchange of 60 calls between all the accused persons during intervening night of crime has been proved on record with the help of CDR and location of all the accused persons as per the mobile location was found in and around the spot from 12 mid night till 03:00 AM on the intervening night of incident. He has further argued that the location of three accused persons except Ravi has changed at about 03:17 AM.
52. Ld. Counsel has relied upon the case laws on the point of relevancy of CDR i.e. (1) State v. Sayed Abdul Rehman Gilani, (2005) 11 SCC 600 and (2) Azad @ Gourav v. State of NCT of Delhi & Anr., CRL.A. 593/2022. (Para 16.1 of Delhi High Court)
53. It is further argued by Ld. Counsel for accused Ravi that there is no evidence against accused Ravi except the CDR which cannot be the sole evidence to convict him.
53.1. In rebuttal, it is submitted by the Ld.Addl.P.P. for the State that the CDR is relied upon by the prosecution for the call details as well Case No. 56984/2016 FIR No. 381/2014 Page 40 of 80 State v. Pintu Yadav & others PS - Patel Nagar as location of accused persons which was not the case in the Judgment relied upon by the defence.
54. It is further argued by the Ld. Counsel for the accused Ravi that at the time of medical examination, the deceased was found to be wearing gold ornaments which were not taken away by the accused persons, if the motive was robbery. Further, it is argued that the chance prints lifted from the spot could not be matched by the FSL, hence, it does not substantiate the prosecution story. It is further argued that no other witness except PW-3 and PW-6 have been examined by the prosecution though there were public persons at the spot and the hospital. Hence, the evidence was selectively in nature. He has lastly submitted that there is no direct evidence and chain of circumstance is not complete to convict the accused Ravi.
Arguments addressed on behalf of accused Pankaj Yadav :
55. It is argued by Sh. Sushil Kumar Pandey, Ld.Counsel for accused Pankaj Yadav that he has been falsely implicated in the present case and recovery upon him is planted one. Further it is argued that there is no mobile phone which was in the name of accused Pankaj hence, he was not maker of the calls made by the mobile phone stated to be in his possession. Further he has relied upon the statement made by accused under Section 313 Cr.P.C. to substantiate his defence. He has further argued that statements of PW-3, PW-6 and PW-11 are not reliable for accused Pankaj Yadav.
Case No. 56984/2016 FIR No. 381/2014 Page 41 of 80State v. Pintu Yadav & others PS - Patel Nagar He further argued that the entire case is based on the circumstantial evidence and he has relied upon the case laws, which is stated to be already filed on record. He has further argued that the story of public witnesses are not reliable and it is the case of acquittal simplicitor. It is further argued that the mobile number which has been stated by the police to be used by accused Pankaj is neither registered in his name nor proved to be in his possession. He has further argued that the nail clippings of the accused persons were not collected during investigation to match with the nail marks found upon the body of deceased. It is further argued that no CCTV footage from nearby locality was searched by the police to find out the movement of accused persons. Both the aforesaid two things have been admitted by the IO/PW-25 during his cross-examination conducted on 16.07.2022 at page number 8. He has further argued that as per testimony of IO conducted on 16.07.2022 at page number 09, on checking the room of accused Pankaj, one empty whisky bottle, one 'Fanta' bottle and two empty steel glasses were found but they were not sent to FSL for possible DNA evidence. It is further argued that the mother of deceased who was present in the house at the time of incident has not been made witness by the Prosecution.
56. Per contra, Ld. Prosecutor has submitted that this has already been explained by the IO that since she was 92-93 years of age, she was not made a witness in the present case.
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57. It is lastly argued by the Ld.Counsel for accused Pankaj Yadav that he was easy pray and hence, he was arraigned in the present matter. He has also relied upon the citations titled as Sharad Birdhi Chand Sarda v. State of Mahrashtra, 1984 SCC (4)
116. Appreciation of facts and relevant law :
58. The present case is based on circumstantial evidence. It is established principle of law that a witness may lie but the circumstances do not lie. In the present case, there is no eye witness of the alleged incident. The guilt of the accused can only be proved through the circumstantial evidence. The circumstantial evidence has to be appreciated as per the established principles of law laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Delhi. The standard of proof required for conviction in case of circumstantial evidence is that the circumstances relied upon in support of conviction must be fully established and the chain of evidence proved by the prosecution must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
59. The Hon'ble Supreme Court of India in case titled as Sharad Bridhichand Sarda Vs. State of Maharashtra cited as (1984) 4 SCC 116 has laid down the five golden Principles for appreciation of circumstantial evidence and has termed the same as Panchsheel Case No. 56984/2016 FIR No. 381/2014 Page 43 of 80 State v. Pintu Yadav & others PS - Patel Nagar of the Proof of Case based on circumstantial evidence. The said 5 golden principles are as follows:-
(i) The circumstances from which the conclusion of the guilt is to be drawn should be and not merely 'may be' fully established.
(ii) The facts so established should be consistent only with the hypotheses of the guilt of accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty.
(iii) The circumstances should be of conclusive nature and tendency.
(iv) They should exclude every possible hypotheses except the one to be proved.
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all probability the act must have been done by the accused.
60. Thus, before recording the conviction of any accused the aforesaid five condition must be satisfied. The prosecution has to establish its case on the basis of aforesaid five golden Principles and to secure conviction of any accused, the prosecution must fulfill the following requirements:-
(i) The circumstances from which the inference of the guilt of the accused is to be drawn must be firmly established.
(ii) The established circumstances must be of such definite tendency that points out towards the guilt of accused.Case No. 56984/2016 FIR No. 381/2014 Page 44 of 80
State v. Pintu Yadav & others PS - Patel Nagar
(iii) The chain of the circumstances must be so complete and there should not be any snap in the chain of circumstances.
(iv) The chain of circumstances must be so complete and incapable of any other hypotheses then that the guilt of the accused and same should also be inconsistent with the innocence of the accused and must exclude every other possible hypotheses except with the hypotheses pointing out towards the guilt of the accused.
61. Now coming to the present case, the Prosecution has to prove following circumstances to secure conviction in the present matter for the accused persons :
(a) Criminal conspiracy hatched between all the accused persons;
(b) Presence of all the accused persons at the spot at the time of offence;
(c) Motive behind the commission of crime;
(d) Death of deceased Sh. Rohit Sethi was caused by murder while committing robbery;
(e) Scientific evidence proved on record to connect all the accused persons with the crime;
(f) Recovery of robbed articles and
(g) Previous and subsequent conduct of accused persons.Case No. 56984/2016 FIR No. 381/2014 Page 45 of 80
State v. Pintu Yadav & others PS - Patel Nagar
62. Now discussing all circumstances as enumerated above one by one. The first circumstance which needs to be proved is as under :
(a) Criminal conspiracy hatched between all the accused persons: Generally, the conspiracy is hatched up in utmost secrecy and in these circumstances, it becomes very difficult to prove the same by direct evidence. The conspiracy in such cases is to be incurred on the facts and circumstances of the case. The circumstances of a particular case before, during and after the commission of offence have to be taken into consideration to infer the criminal conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation.
63. The term "Criminal Conspiracy" has been defined under Section 120 A of IPC which reads as under:-
120 A - When two or more person agreed to do, or caused to be done-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy.
Provided that no agreement an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanations: It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.
Case No. 56984/2016 FIR No. 381/2014 Page 46 of 80State v. Pintu Yadav & others PS - Patel Nagar Section 120 B provides punishment for the commission of offence of criminal conspiracy. The offence of criminal conspiracy is a substantive offence. When two or more person agree or cause to be done an illegal act or an act which is not illegal by illegal means, the agreement entered by such persons will constitute the offence of criminal conspiracy. The most important ingredient of offence of criminal conspiracy is the agreement between two or more person to do an illegal act. It is intention to commit crime and joining hands with persons having the same intents. The offence of criminal conspiracy is a separate and distinct offence."
64. In the present matter, as per the prosecution, the criminal conspiracy which was hatched in secrecy by all the accused persons was firstly noticed by the complainant PW-6 Sh. Prem Nagpal on 11.06.2014 at about 07:45 PM to 08:00 PM when he was returning with the deceased from the nearby park after having a walk as he saw accused Arun and accused Pintu Yadav talking to accused Pankaj Yadav at the back side gali of the house of deceased. The accused Arun stated to have worked earlier in the house of deceased but was removed from the service on committing theft in the house by the deceased whereas, accused Pankaj was stated to be the servant employed at the time of crime by the deceased in his house. His statement regarding the said fact has also been recorded by the Investigating officer. The said witness PW-6 Sh. Prem Nagpal has also deposed about the same during his testimony before the Court on 09.07.2015 that while he was returning from the park alongwith deceased Mr. Rohit Sethi after having evening walk at about 07:45PM to 08:00 PM, he noticed that accused Arun and Pintu Case No. 56984/2016 FIR No. 381/2014 Page 47 of 80 State v. Pintu Yadav & others PS - Patel Nagar Yadav were talking to accused Pankaj at the back side gali of the house of the deceased. Accused Arun had earlier worked at the house of deceased for about 1 or 1½ months as a servant but he was removed from the service by the deceased on committing theft in the house.
65. The said circumstance of hatching criminal conspiracy by all the accused persons has also been proved by PW-9 Sh. Pradeep Singh (Alternate Nodal Officer, Vodafone Mobile Services Ltd.), as he proved on record the following documents :
(1) The certified copy of CAF and CDR of Mobile phone number i.e. 9811874922 in the name of accused Pintu Yadav (used by accused Pankaj) as Ex.PW-9/A and Ex.PW-9/C respectively.
(2) The certified copy of CAF and CDR of Mobile phone number i.e. 9582198319 in the name of accused Arun Yadav as Ex.PW-9/E and Ex.PW-9/G respectively. (3) The certified copy of CAF and CDR of Mobile phone number i.e. 8447163654 in the name of accused Ravi @ Revadhar Joshi as Ex.PW-9/J and Ex.PW-9/L respectively. (4) The certified copy of CAF and CDR of Mobile phone number i.e. 8373937250 in the name of Reena (used by accused Pintu Yadav) as Ex.PW-9/N and Ex.PW-9/P respectively.Case No. 56984/2016 FIR No. 381/2014 Page 48 of 80
State v. Pintu Yadav & others PS - Patel Nagar
66. However, before analysing the CDR of mobile phones used by accused persons wherein the IMEI number of the handsets used by them is of vital importance, this Court deems it appropriate to discuss the relevant law on the subject.
67. The aspect of last digit of IMEI being irrelevant has been discussed by the Hon'ble Supreme Court of India in judgment titled as State (NCT) of Delhi Vs. Navjot Sandhu @ Afsan Guru reported (2005) 11 SCC 600 observed as under:-
"195. One more point has to be clarified. In the seizure memo Ex. 61/4, the IMEI number of Nokia phone found in the truck was noted as 350102209452432. That means the last digit varies from the call records wherein it was noted as 350102209452430. Thus there is a seeming descrepancy as far as the last digit is concerned. This descrepancy stands explained by the evidence of PW-78, a computer Engineer working as Manager Seimens. He is stated, while giving various details of the 15 digits that the last one digit is a spare digit and the last digit, according to GSM specification should be transmitted by the mobile phone as 0."
68. Similarly, Hon'ble High Court of Delhi in Judgment titled as Suraj Vs. State reported as 2022 SCC online DEL 4572 wherein the Hon'ble High Court of Delhi observed as under:-
"27 The deceased's Nokia mobile phone was seized vide seizure memo Ex. PW 28/H from appellant Sonu Dahiya Case No. 56984/2016 FIR No. 381/2014 Page 49 of 80 State v. Pintu Yadav & others PS - Patel Nagar with the IMEI number 358290034757208 which matches with the IMEI number in the CDR of deceased i.e. 358290034757200 (last digit as per the settled law as decided in Gajraj Vs. Sate Supra being irrelevant"
69. Thus, as per the law laid down by the Superior Courts, the last digit of IMEI number mentioned in the mobile handset and the IMEI number mentioned in the CDR will be different and the last digit of IMEI number will be replaced by 0. Applying the aforesaid ratio, this Court has carefully analysed the CDRs of mobile phones being used by the accused persons.
70. The said records when scrutinized in detail clearly reflects that all the accused persons were having constant telephonic contact/conversation on the day of 11.06.2014 and also during intervening night of 11/12.06.2014. The record also reflects there were numerous calls exchanged among the accused persons even at odd hours in the intervening night which are almost 60 calls exchanged among all the four accused persons.
71. More specifically, as per record proved as Ex.PW9/C, the mobile phone having SIM in the name of accused Pintu Yadav, which was recovered from the possession of accused Pankaj during his personal search vide memo Ex.PW26/B, having the same IMEI No. as mentioned in Ex.PW9/C, was having exchange of numerous calls from afternoon of 11.06.2014 till morning of 12.06.2014 among all the four accused persons. Particularly, the accused Pankaj and Arun Yadav were in constant contact in the intervening Case No. 56984/2016 FIR No. 381/2014 Page 50 of 80 State v. Pintu Yadav & others PS - Patel Nagar night of 11/12 June, 2014 from 00:21:40 Hrs. to 01:05:46 Hrs. and during this short span of time of less than one hour they exchanged almost 12 calls. Thereafter, accused Pankaj made calls on the mobile number being used by accused Pintoo Yadav from 03:17:48 Hrs. to 05:35:59 Hrs. and during this time period, there were almost four calls exchanged between them.
72. As per record proved as Ex.PW9/E, the mobile phone having the SIM of Vodafone in the name of accused Arun Yadav was recovered from his possession on personal search after arrest vide personal search memo Ex.PW15/L1. As per CDR proved as Ex.PW9/G, even accused Arun Yadav was in constant touch with co-accused persons during the day on 11.06.2014 and 12.06.20214 and specifically during intervening night of 11th/12th June, 2014 as particularly from 22:40:08 Hrs. on 11.06.2014 till 10:32:00 Hrs. of 12.06.2014, he made almost 36 calls to the co-accused persons and to none else.
73. Further, as per record proved as Ex.PW9/J, the mobile phone was having SIM in the name of accused Ravi @ Revadhar, which was recovered from his possession during his personal search vide memo Ex.PW15/E, having the same IMEI No. i.e. 358913056237433 as mentioned in Ex.PW9/L. As per Ex.PW-9/L, accused Ravi @ Revadhar Joshi was also in constant contact with co-accused Arun Yadav and there have been numerous calls exchanged from 22:38:05 hours till 02:36:10 hours on the Case No. 56984/2016 FIR No. 381/2014 Page 51 of 80 State v. Pintu Yadav & others PS - Patel Nagar intervening night of 11/12.06.2014. During this short span of time, there have been 15 calls exchanged between the accused Ravi and accused Arun Yadav.
74. As per record proved as Ex.PW-9/H, the mobile phone was having SIM in the name of Ms. Reena, however, it was stated to be used by accused Pintu Yadav as it was recovered from his personal search vide memo Ex.PW15/J. As per the CDR of this mobile phone also, the accused persons were in constant contact with each other and the calls started on 11.06.2014 from 21:04:57 Hrs. till 14:43:40 Hrs. on 12.06.2014. During this period, all the calls were made from this mobile number to the mobile phone numbers used by accused Pankaj and Arun majorly and there have been exchange of almost 25 calls. Out of which, 10 calls have been exchanged between the accused persons and that too after every few minutes from 21:44:58 Hrs. till 00:16:40 Hrs. Further, a call was made from the mobile number of accused Pintu Yadav, having IMEI number 911321357747990 to accused Pankaj on the intervening night of 11/12.06.2014 at 00:16:40 hours and another call was made from the mobile number of accused Pankaj to Pintu Yadav at 03:17:48 hours. Hence, there is no call in between 00:16:40 hours to 03:17:48 hours which is the anticipated time of commission of the crime.
75. The aforesaid ocular evidence given by the complainant/ Sh. Prem Nagpal as PW-6 and the documentary evidence adduced by Case No. 56984/2016 FIR No. 381/2014 Page 52 of 80 State v. Pintu Yadav & others PS - Patel Nagar the prosecution in form of Personal Search Memo of the accused persons i.e. Ex.PW26/B (Accused Pankaj), Ex.PW15/E (Accused Ravi), Ex.PW15/L1 (Accused Arun) and Ex.PW15/J1 (Accused Pintu) proved by PW15 SI Nitesh Nehra and PW26 IO/Inspector Vinay Kumar, wherein the mobile phones were recovered from their possession and consequently CAF and CDRs of the SIM of the mobile phones being used by the accused persons coupled with the certificate given by the Nodal Officer under Section 65B of the Indian Evidence Act, only points towards the criminal conspiracy being hatched by all of them in order to execute the commission of the crime for which they have been charged in the present matter.
(b) Presence of all the accused persons at the spot at the time of offence :
76. As already stated, PW-9 Sh. Pradeep Singh (Alternate Nodal Officer, Vodafone Mobile Services Ltd.), has proved on record the CDR of Mobile phone number i.e. 9811874922 as Ex.PW-9/C being used accused Pankaj which was recovered from his possession vide his personal search memo Ex.PW26/B.
77. PW9 further proved the CDR of Mobile phone number i.e. 9582198319 in the name of accused Arun Yadav as Ex.PW-9/G which was recovered from his possession vide personal search memo Ex.PW15/L1.
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78. PW-9 further proved the copy of CDR of Mobile phone number i.e. 8447163654 in the name of accused Ravi @ Revadhar Joshi as Ex.PW-9/L which was seized vide personal search memo Ex.PW15/E.
79. PW-9 also proved the CDR of Mobile phone number i.e. 8373937250 being used by accused Pintu Yadav as Ex.PW-9/P which was seized vide personal search memo Ex.PW15/J1.
80. The detailed analysis of CDRs of mobile phone number being used by the accused persons reveals that they were having same tower location at the time of commission of present crime as per the Cell ID mentioned in the CDRs.
81. To put it more specifically, accused Ravi, who was domestic help of the deceased and stated to be present at the house of deceased entire night and till the morning when police reached at the spot shows the Cell ID location of his mobile phone as '404110017323202' and this is the location from where PCR call was made, which was admittedly made by accused Ravi. Hence, this is the tower location of the house of the deceased which is the spot of crime. At this location only, accused Ravi has exchanged numerous telephonic calls with other co-accused persons in the intervening night of 11/12.06.2014. This clearly reflects that he was present at the house of the deceased on the fateful night and was in constant contact with other co-accused persons.
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82. CDR of mobile phone No. of accused Pintu Ex.PW9/P
reflects his location on spot at 00:14:56 Hrs. and also at 00:16:40 hrs. and at this time of 00:16:40 hrs., he made a call to accused Pankaj, who was also a domestic help of the deceased and was present in the house of deceased at that time. The location of accused Pintu has changed at 03:17:48 Hrs., which confirms his presence at the spot at the time duration of commission of the offence.
83. The CDR of mobile phone number used by accused Pankaj, who was also present at the house of deceased shows his location constant at the house of deceased while he was talking to other co- accused persons regularly and the last call was made to co-accused Arun at 01:05:46 Hrs. from the spot. But, thereafter, a call was made to the number used by accused Pintu at 03:17:48 Hrs. after which his tower location has changed. Conseqeuntly, accused Pankaj was not found at the house of deceased/ spot when the alarm was raised and police has reached the spot since he absconded thereafter.
84. As far as presence of accused Arun Yadav is concerned, the CDR of his mobile phone reflects that he has been visiting at or around the house of deceased since 10.06.2014 and in the intervening night of 11/12.06.2014, he has been constantly been at/around the house of deceased/spot. He has made numerous calls from location of the spot to other accused persons from 00:53:29 Case No. 56984/2016 FIR No. 381/2014 Page 55 of 80 State v. Pintu Yadav & others PS - Patel Nagar hrs. till 02:36:09 Hrs. except that in between his location changed for one or two calls.
85. A mobile tower generally covers a distance of 50 meters in radius and hence it is clear from the above discussion that all the accused persons were at/around the spot at the time of commission of crime.
(c) Motive behind the commission of crime :
86. Motive is relevant under Section 8 of the Indian Evidence Act. Motive is the moves a man to do a particular work. Generally, there can be no action without any motive. Under Section 8 of Evidence Act, several factors including preparation, previous threat, previous altercation, previous litigation between the accused and the victim becomes relevant.
87. The mere existence of motive is by itself is not an incriminating circumstance. Motive cannot be a substitute of proof however it is an corroborating factor in proving the case of the prosecution. The motive for the commission of offence is of vital importance in a criminal trial and in cases based on circumstantial evidence motive itself will be a circumstance which the Court has to consider deeply. The existence of motive which operates in the mind of perpetrator may not be known to others and hence it has to be inferred from the facts and circumstances of this case.
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88. Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh Vs. State of Jharkhand and Anr cited as (2011) 3 SCC 654 observed as under :
"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of accused is fairly well settle by a long line of decision of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon the circumstantial evidence on one hand and those were relies upon the testimonies of the eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into background in cases where the prosecution relies upon and eye witness account of the occurrence. That is because if the Court upon a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses."
89. In the present matter, the motive of murder of the deceased Sh.Rohit Sethi has been robbery of valuable articles lying in the house, as put forth by the Prosecution. In order to prove the motive, the Prosecution has examined numerous witnesses and relevant Case No. 56984/2016 FIR No. 381/2014 Page 57 of 80 State v. Pintu Yadav & others PS - Patel Nagar portion of their testimonies is reproduced below for establishing the motive of robbery during which the murder of deceased has also been committed:
(a) PW-3 Sh.Vipin Sethi (brother of deceased) has deposed that when he reached the house of his brother Sh.Rohit Sethi, after information was received by him about injuries sustained by the deceased, he found that all the articles were scattered and almirahs were open. He also came to know that valuable articles and mobile phones were missing from the house.
(b) PW-6 Sh. Prem Nagpal has also deposed on the same lines that when he reached the house of deceased Sh. Rohit Sethi after information was received by him that Sh. Rohit Sethi had been murdered, he found that the household articles in the house were scattered and lateron, after arrest of accused persons, he was witness to recovery of the robbed articles from the house of deceased Sh.Rohit Sethi, from the possession of accused persons namely Arun and Pintu Yadav.
(c) PW-15 SI Nitesh Nehra has also deposed that when he reached the spot after receiving DD No. 15A, proved as Ex.PW-1/E, he found that on the ground floor of the house, the household articles were lying scattered. The robbed Case No. 56984/2016 FIR No. 381/2014 Page 58 of 80 State v. Pintu Yadav & others PS - Patel Nagar articles were lateron recovered from accused persons and he was witness to the same.
(d) PW-16 Ct.Satender Kumar, PW-19 Ct. Rakesh Kumar and PW-26 Inspector Vinay Kumar are also witnesses to the recovery of robbed articles from the possession of accused persons.
(e) PW-25 Inspector Ranjeet Dahiya, the Investigating Officer has also deposed that when he reached the spot of crime, he noticed that the household articles were lying and one almirah was also found open. Thereafter, the robbed articles were recovered at the instance/from possession of accused persons.
(f) Even the photographs along with negatives proved by PW-7 Ct. Virender Singh as Ex.PW-7/A1 to Ex.PW-7/A19, clicked at the spot of crime soon after the incident by the mobile crime team also reflects that the household articles were scattered and almirah was found open.
90. With these testimonies and documents on record, it is clear that the motive of all the accused persons for commission of offence charged with was to commit robbery in the house of deceased Sh.Rohit Sethi.
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(d) Death of deceased Sh. Rohit Sethi was caused by murder while committing robbery
91. As per the case of the prosecution, in the morning of 12.06.2014, the mother of deceased Rohit Sethi called him but as he did not respond, she raised an alarm on which the domestic help who was sleeping in the same room namely Smt.Premlata woke up and on instructions by mother of deceased, asked the servant of the next door neighbour to call the care take accused Ravi. After accused Ravi came downstairs and opened the lock of the door of the room of mother of deceased from outside, it was seen that the deceased Mr. Rohit Sethi was lying unconscious on sofa in pool of blood. He was immediately rushed to the hospital where he was declared brought dead. Police, relatives as well as friends of deceased reached at the spot and observed that the articles of the house were scattered and valuable articles were found missing. When the Crime Team reached at the spot, chance prints were lifted and photographs of the spot were taken. The almirah was also found open. The pillow cover and bed sheet lying in the room of the house of the deceased were found having bloods stains which were taken into possession by the police vide seizure memo Ex.PW15/C.
92. As per the postmortem report of deceased proved as Ex.PW12/A by Dr. Narian Dabas, Sr. Resident, Department of Forensic Medicine, Dr. BSA Hospital, Rohini, Delhi, who Case No. 56984/2016 FIR No. 381/2014 Page 60 of 80 State v. Pintu Yadav & others PS - Patel Nagar conducted the postmortem upon the body of deceased, the following injuries were found present on the body of deceased on external examination:
(1)Abraded contusion 1.5 x 1 cm was present over right alae of nose.
(2)Multiple abraded contusion over an area of 3x 1.5 cm were present over left alae of nose; varying in sizes from 1 x 0.2 cm to 1.5 x 0.5 cm.
(3) Multiple abraded contusion reddish in colour, of shapes crescentric (nail mark) to irregular, over an area of 11 x 9 cm were present over right side of face, situated 5 cm below the outer angle of right eye; varying in sizes from 0.2 x 0.2 cm to 4.5 x 1.5 cm.
(4) Multiple abraded contusion reddish in colour, of shapes crescentric (nail marks) to irregular, over an area of 12x11 cm were present over left side of face, situated 4 cm below the outer angle of left eye; varying in sizes from 0.3x0.2 mm to 3x1 cm.
(5) Laceration measuring 0.5x0.1 cm was present over the inner aspect of lower lip associated with contusion measuring 5x3 cm.
(6) Fresh loss of bilateral lower central incisor was present. (7) Contusion, bluish, measuring 4x3 cm was present over the inner aspect of upper lip.Case No. 56984/2016 FIR No. 381/2014 Page 61 of 80
State v. Pintu Yadav & others PS - Patel Nagar (8) Nail mark (abrasion), reddish in colour, measuring 1.3x0.2cm was present over the neck on right side, situated 9 cm above and 2 cm away from the suprasternal notch.
(9) Multiple contusion bluish in colour over an area 8x5 cm were present over the right side of neck: varying in sizes from 0.220.2 cm to 1.5x1 cm, situated 3.5 cm below the right mastoid.
(10) Multiple contusion, bluish in colour over an area of 18x10 cm were present over the right side of neck, right shoulder and arm, varying in sizes from 0.3x0.2cm to 3x1cm.
(11) Abraded contusion reddish in colour measuring 3x0.7 cm present over right side of neck, situated 3 cm below the chin.
(12) Confusion, reddish in colour measuring 2x1 cm were present over chin on right side.
(13) Nail mark (Abraided contusion), reddish in colour measuring 1x0.2 cm was present over the left side of neck, situated 9 cm above and 2 cm away from de suprasternal notch.
(14) Abrasion, reddish in colour measuring 1.3 x 0.2 cm was present over the neck on left side, situated 7 em above the suprasternal notch.
Case No. 56984/2016 FIR No. 381/2014 Page 62 of 80State v. Pintu Yadav & others PS - Patel Nagar (15) Abraded contusion, reddish in colour measuring 3x0.6 cm was present over front of neck in midline, situated 11 cm above the suprasternal notch.
(16) Abraded contusion, reddish in colour measuring 1x0.5 cm was present over left side of neck, situated 12 cm above the suprasternal notch.
(17) Abraded contusion, reddish in colour measuring 1x0.2 cm was present over right front of neck, situated 1 cm above the suprasternal notch.
(18) Multiple contusion, bluish in colour over an area of 6 x 4 cm were present over the left shoulder tip, varying in sizes from 0.3 x 0.3 cm to 1.5 x 1 cm.
(19) Abraded contusion, reddish in colour measuring 15 x 7 cm was present over outer aspect of left arm, situated 13 cm below the left shoulder tip.
(20) Abraded contusion, reddish in colour measuring 28 x 13 cm was present over abdomen on both sides, situated 14 cm above the public symphysis.
(21) Multiple abraded cession, reddish in colour measuring 108 cm was present over from of the left knee and leg:
varying in sizes from 0.2x 0.2 cm to 4x2.5 cm. (22) Contusion bluish in colour measuring 2x1 cm was present over back of right arm, situated 12 cm below the elbow.Case No. 56984/2016 FIR No. 381/2014 Page 63 of 80
State v. Pintu Yadav & others PS - Patel Nagar (23) Contusion bluish in colour measuring 5x2 cm was present over back of chest on right side, situated & 5 cm below the posterior axillary fold.
93. Further on internal examination, contusion of strap muscles of neck on both sides corresponding to the external injuries over neck were present. Inward compression fracture of hyoid bone was present on left side associated with contusion of surrounding soft tissues (suggestive of manual strangulation) Trachea contained frothy fluid.
94. He further deposed that blood in gauze piece, blood and viscera, fingernail clippings of both hands and clothes were preserved. Exhibits were packed, sealed with the seal of 'DFMT, DDU hospital' and handed over to the IO.
95. PW-12 Dr. Narian Dabas opined that the time since death was 12-24 hours prior to the postmortem examination, which was conducted on 13.06.2014 at 1:40 p.m. He also opined that the cause of death was due to cumulative effect of asphyxia secondary to constriction of neck structure manual strangulation and smothering, consistent with the history provided. Manner of death was homicide and all injuries were fresh, antemortem in nature and of the same duration.
Case No. 56984/2016 FIR No. 381/2014 Page 64 of 80State v. Pintu Yadav & others PS - Patel Nagar
96. Therefore, as per the postmortem report Ex.PW12/A, the cause of death of deceased Rohit Sethi was manual strangulation and smothering, hence, he was murdered.
97. From the evidence available on record in form of ocular evidence and medical evidence, the Court is convinced that the deceased Rohit Sethi was murdered while committing the robbery of valuable articles from the house of deceased which was the established motive of the accused persons.
(e) Scientific evidence proved on record to connect all the accused persons with the crime :
98. In order to prove the scientific evidence against the accused persons prosecution has examined Chemical Examiner (Biology), FSL, Rohini, Delhi Ms. Amita Raghav, Jr. Forensic as PW-22 who opined that the source of Exhibit 5 (gauze cloth piece of deceased) is similar with the DNA profile generated from source of Exhibits Ib (pillow cover), 2a and 2b (clothes of accused Arun), 3a and 3b (clothes of accused Pintu), 4b (Baniyan of deceased), 6, 7 (nails of deceased) and 8 (blood sample of deceased). She proved her detailed report dated 28.2.2018 as Ex.PW22/A.
99. However, the chance prints lifted from the spot by the Mobile Crime Team and sent to Finger Print Bureau, Crime Branch numbered as Q1 to Q3 and Q5 to Q10 were found to be smudged and unfit for comparison as per testimony of PW-21 Inspector N. K. Case No. 56984/2016 FIR No. 381/2014 Page 65 of 80 State v. Pintu Yadav & others PS - Patel Nagar Sharma, Finger Print Expert, Crime Branch, Delhi and the chance print marked as Q4 was partial and did not match with specimen palm prints of accused Arun, Pintu and Ravi.
100. In view of the deposition of PW-22 and her report that the blood of deceased was found matched through DNA profile on the clothes of accused persons namely Pintu and Arun Yadav, which were seized by the police vide seizure memo proved as Ex.PW15/B and Ex.PW15/Q respectively and were taken from PS Patel Nagar to FSL, Rohini, Delhi by PW-23 HC K. R. Sanjay vide RC No. 56/21 and he deposited the same at FSL, Rohini, Delhi against acknowledgement receipt.
101. Reliance is placed by this court in Kamti Devi (Smt.) and Anr. Vs. Poshi Ram reported in (2001) 5 SCC 311, wherein the Hon'ble Apex Court has held that "The result of a genuine DNA test is said to be scientifically accurate."
102. The same view has been reiterated by the Hon'ble Apex Court in Santosh Kumar Singh Vs. State through CBI, Crl. Appeal No. 87/2007, decided on 06.10.2010 and held that "We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this court in Kamti Devi (Smt.) and anr. Vs. Poshi Ram."
103. Accordingly, in view of the report of Chemical Examiner proved on record and the law laid down by the Hon'ble Supreme Court of India on the point, this Court safely concludes that the Case No. 56984/2016 FIR No. 381/2014 Page 66 of 80 State v. Pintu Yadav & others PS - Patel Nagar DNA taken from blood sample of the deceased matched with the blood stained clothes of accused Pintu and Arun, which they were wearing at the time of their arrest soon after the crime.
(f) Recovery of robbed articles :
104. The established motive of the present crime has been robbery of valuable articles from the house of deceased Rohit Sethi as the articles were found scattered in the house and valuable articles were missing. On the very next morning of fateful night, the accused persons were arrested and on their disclosure, robbed articles were recovered. The Court finds it appropriate to discuss the relevant law at this stage.
105. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle under Section 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non-inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information.
106. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by Case No. 56984/2016 FIR No. 381/2014 Page 67 of 80 State v. Pintu Yadav & others PS - Patel Nagar the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
107. Hon'ble Supreme Court of India in Judgment titled as Pawan Kumar @ Monu Mittal vs State Of U.P. & Anr reported in 2015 (7) SCC 148, has held that "The "fact discovered" as envisaged under Section 27 of the Evidence Act embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect, but information given must relate distinctly to that effect and hence if the accused are denying their role without proper explanation as to the knowledge about the incriminating material recovered on the basis of their statements in police custody, would justify the presumption drawn by the Courts below as to the involvement of the accused in the Crime.
108. Reverting to the present case, as per testimony of PW-15 SI Nitesh Mehra the accused namely Ravi, who was caretaker in the house of deceased was arrested from the spot vide arrest memo Ex.PW15/D and his personal search was conducted vide memo Ex.PW15/E.
109. PW-25 Investigating Officer Retd. Inspector Ranjeet Dahiya deposed that during interrogation of accused Ravi, he informed that he along with co-accused persons namely Pankaj, Arun and Pintu committed the present crime with intention to do 'Loot Paat' and Case No. 56984/2016 FIR No. 381/2014 Page 68 of 80 State v. Pintu Yadav & others PS - Patel Nagar committed the murder of deceased by throating and smothering. He also informed that after committing the murder of deceased, the key of the almirah was taken from pocket of his pants and thereafter 'Loot Paat' was committed. His disclosure statement was recorded proved as Ex.PW15/F and pointing out memo of the place of spot was prepared at his instance proved as Ex.PW15/G. Thereafter. accused Ravi led the police party to his room situated at first floor of the house of the deceased from where he got recovered one golden colour MangalSutra embeded with black colour beeds, one silver colour chain, one golden colour tie pin and Rs.1,900/- cash. The articles were taken into possession vide memo Ex.PW15/H.
110. Further, accused Arun Yadav and Pintu Yadav were arrested on secret information and on identification of accused Ravi vide arrested memo Ex.PW15/J and Ex.PW15/L respectively and their personal search was conducted vide personal search memo Ex.PW15/J1 and Ex.PW15/L1. During interrogation, they also admitted their involvement in the present case and disclosed that the looted ornaments which came to their share have been kept in a bag which has been hidden by them in a Bargad tree situated at South Patel Nagar, Delhi and they can get recovered the same. The disclosure statement of accused Pintu Yadav has been proved as Ex.PW15K and disclosure statement of accused Arun Yadav has been proved as Ex.PW15/M. Thereafter, both accused persons Pintu and Arun led the police party to a service road in front of Kothi No. Case No. 56984/2016 FIR No. 381/2014 Page 69 of 80 State v. Pintu Yadav & others PS - Patel Nagar 13, South Patel Nagar, Delhi and pointed out the said Bargad tree. The said Bargad tree was having a hole in it and both the accused persons put their hands in the said hole and took out one white colour cloth bag. It was found to be containing utensils such as silver kettle, four bowls of peetal, one silver channi, one silver spoon, two silver jhunjhuna, one silver bracelet, one pearl chain in broken condition, and 14 coins of Rs.1/-. The said articles were taken in police possession vide seizure memo proved as Ex.PW6/B.
111. Accused Pankaj was apprehended at the instance of co- accused persons, who claimed to be a minor aged about 17 years. His apprehension memo was prepared. He also admitted his involvement in the present crime and disclosed that robbed articles came to his share which he was carrying at that moment and two mobile phones and cash of Rs.6,500/- was recovered from his possession.
112. To prove the recovery of robbed articles, the prosecution has examined a public witness namely Prem Nagpal, who entered into witness box as PW-6 and deposed that "I reached South Patel Nagar and noticed that police had apprehended two persons namely accused Arun and Pintu Yadav...... Both the accused disclosed that they had concealed the looted articles in the open space of stem of Bargad Tree in front of H. No. 13. South Patel Nagar. Accused Arun and Pintu Yadav got recovered a "Potli" from the open space of a Bargad Tree in front of House No. 13, South Patel Nagar. The said Case No. 56984/2016 FIR No. 381/2014 Page 70 of 80 State v. Pintu Yadav & others PS - Patel Nagar Potli was opened by the police and found silver utensils i.e. Kettle, Katori, Spoon, Mala, Bracelet etc.". During cross examination, this witness stated that he was in visiting terms of the house of the deceased for the last twenty year and hence, he identified the recovered articles. He categorically stated that "I have seen the silver kettle many times and the deceased had placed the silver kettle at his show case in the drawing room."
113. Apart from independent witness, the prosecution has also examined PW-16 Ct. Satender Kumar, PW-19 Ct. Rakesh Kumar and PW-26 Inspector Vinay Kumar, who are police officials accompanying the investigating officer at the time of recovery and have proved the recovery of robbed articles from the accused persons while deposing on the same lines of PW-15 SI Nitesh and PW-25 IO/Inspector Ranjeet Dahiya.
114. Ld. Counsels for the accused persons submitted during final arguments that PW-6 is not a reliable witness as to the recovery of robbed articles since he was only a friend of deceased and not a family member to identify the articles belonging to the deceased. However, during cross examination, PW-6 stated that he was in visiting terms in the house of the deceased for the last twenty year and hence, he identified the recovered articles. He categorically stated that "I have seen the silver kettle many times and the deceased had placed the silver kettle at his show case in the drawing room."
Case No. 56984/2016 FIR No. 381/2014 Page 71 of 80State v. Pintu Yadav & others PS - Patel Nagar
115. The Test Identification Parade of the recovered articles from the possession of accused persons, was conducted during investigation, which was duly identified by the brother of deceased i.e. PW-3 Mr. Vipin Sethi. During his testimony before the Court, PW-3 proved the TIP proceedings of the case property as Ex.PW3/A bearing his signatures at point 'A' and he identified correctly the articles i.e. one kettle with lid, four bowls, one spoon, one bracelet, one white beads chain, and they were proved as Ex.P1 to Ex.P5 respectively which were recovered at the instance of accused Arun and Pintu Yadav. PW-3 also correctly identified one Mangalsutra with black beads, one pendant with silver chain and one golden tie pin proved as Ex.P6 to Ex. P8 respectively which were recovered from the possession of accused Ravi. PW-3 also correctly identified one Nokia Mobile Phone and one blackberry mobile phone proved as Ex.P9 and Ex. P10 respectively which were recovered from the possession of accused Pankaj.
116. From the above detailed discussion, the Court finds that the robbed articles were recovered from the possession of accused persons pursuant to their disclosure statement which were duly identified and proved to have been recovered from their possession, by the independent witnesses ie. PW-3 brother of the deceased and PW-6 close friend of deceased as well as by the police witnesses.
(g) Previous and subsequent conduct of accused persons:
Case No. 56984/2016 FIR No. 381/2014 Page 72 of 80State v. Pintu Yadav & others PS - Patel Nagar
117. Prosecution may corroborate its case from the conduct of accused also. The previous and subsequent conduct of accused is relevant under Section 8 of Indian Evidence Act. A fact can be proved by the conduct of accused and surrounding circumstances. The conduct of accused in absconding after the commission of offence, in destroying the evidence, behaving in an unnatural way etc are relevant under Section 8 of Indian Evidence Act.
118. Hon'ble Supreme Court of India in Judgement titled as Prithipal Singh & Ors. Vs. State of Punjab and Anrs. Cited as (2012) 1 SCC 10 while confirming the conviction of appellant observed as under:-
"Most of the appellants had taken alibi for screening themselves from the offences. However, none of them could establish the same. The courts below have considered this issue elaborately and in order to avoid repetition, we do not want to re- examine the same. However, we would like to clarify that the conduct of accused subsequent to the commission of crime in such a case, may be very relevant. If there is sufficient evidence to show that the accused fabricated some evidence to screen/absolve himself from the offence, such circumstance may point towards his guilt. Such a view stand fortified by judgment of this Court in Anant Chintaman Lagu v. The State of Bombay, AIR 1960 SC 500."Case No. 56984/2016 FIR No. 381/2014 Page 73 of 80
State v. Pintu Yadav & others PS - Patel Nagar
119. Reverting to the case in hand, the previous conduct of accused Arun has been putforth by the prosecution through PW-6 Prem Nagpal, friend of the deceased, who deposed that accused Arun had worked earlier in the house of deceased for about 1-1½ months as a servant but he was removed from the service by the deceased as accused Arun committed theft in the house of the deceased Sh. Rohit Sethi. He also deposed mentioning the conduct of accused Arun that on 11.06.2014 at around 7:45 - 8:00 p.m. while he was returning from the park, after walk along with the deceased, he noticed that accused Arun and accused Pintu were talking to accused Pankaj (who was the new servant of the deceased) at the backside gali of house of the deceased.
120. Even, PW-11 Smt. Premlata, the house help of the deceased confirmed the said fact that accused Arun had worked earlier in the house of deceased as a servant which was prior to her employment.
121. The testimony given by PW-6 corroborated by testimony of PW-11 regarding the employment of accused Arun in the house of deceased as servant and his removal from the said service on committing theft is a strong circumstance which plays against the accused Arun for two reasons firstly that he had worked in house of deceased for 1-1½ months, hence, he was aware of the day's routine of the deceased and personal information of the house secondly that he committed the theft earlier in the house of deceased points Case No. 56984/2016 FIR No. 381/2014 Page 74 of 80 State v. Pintu Yadav & others PS - Patel Nagar towards his intention to commit theft / robbery in the house of deceased.
122. Further, his conduct as enumerated by PW-6, that he was talking to accused Pankaj at the backside of gali of house of deceased soon before the commission of crime also further strengthens the chain of circumstances in order to prove the case of the prosecution.
123. Regarding, the conduct of accused Pankaj, PW-6 has deposed that on 11.06.2014, when he along with deceased returned to the house of deceased, he was informed by the deceased Mr.Rohit Sethi that the has employed a new servant namely Pankaj and introduced him to accused Pankaj who was present in the house. However, PW-6 did not find the body language of accused Pankaj proper and therefore, he asked the deceased Mr. Rohit Sethi to get police verification of accused Pankaj done.
124. He also deposed about the subsequent conduct of accused Pankaj of fleeing from the spot/house of the deceased immediately after the commission of crime as he was not found in the house of deceased when PW-6 had reached the house in the morning of 12.06.2014 along with other relatives, friends and neighbours of the deceased.
125. The subsequent conduct of absconding by accused Pankaj after the commission of the crime has been corroborated by PW-11 Case No. 56984/2016 FIR No. 381/2014 Page 75 of 80 State v. Pintu Yadav & others PS - Patel Nagar as she deposed that when the alarm was raised by the mother of deceased, accused Pankaj was not found present in the house.
126. She also deposed that on fateful night, she was offered cold drink by accused Pankaj but she denied. However, on insistence of accused Pankaj, she consumed the same and felt dizzy afterwards.
127. PW-11 has also deposed regarding conduct of accused Ravi and Pankaj on the fateful night while stating that after they finished their dinner and it was midnight, she directed accused Ravi to lock the gate of the house but he in turn directed accused Pankaj to put lock on the gate of the house. She again directed accused Ravi to put lock on the gate and by saying so she bolted the door of her room from inside and went for sleep in the room with mother of deceased. The said conduct of accused Ravi and Pankaj, who were servants in the house of deceased, points towards their reluctance to put lock on the gate of the house despite being midnight.
128. With this background, in view of testimonies of independent witnesses, the conduct of accused Arun, Ravi and Pankaj speaks volume about their intention and planning in the commission of crime. Their such conduct also strengthens the chain of circumstances as putforth by the prosecution.
Explanation by accused persons about the aforesaid circumstances against them.Case No. 56984/2016 FIR No. 381/2014 Page 76 of 80
State v. Pintu Yadav & others PS - Patel Nagar
129. Despite opportunity granted to the accused persons under Section 313 Cr.PC to explain the circumstances appearing against them, they failed to tender any plausible explanation for the same. The answers given in the defence by all the accused persons are of general denial.
130. The accused persons failed to explain the circumstances in which the numerous calls were exchanged between them in the intervening night of 11/12.06.2014 when the crime in the present matter was being committed, though the burden of proof shifted upon them as per Section 106 of the Indian Evidence Act.
131. The accused persons namely Arun and Pintu also failed to explain the circumstances which led them to be present at / around the house of deceased in the intervening night of 11/12.06.2014 when the crime in the present matter was being committed, though the burden of proof shifted upon them as per Section 106 of the Indian Evidence Act.
132. The accused persons namely Arun and Pintu also failed to explain the circumstances in which their clothes which they were wearing at the time of their arrest sustained blood of the deceased as proved PW-22, though the burden of proof shifted upon them as per Section 106 of the Indian Evidence Act.
133. The accused namely Pankaj also failed to explain the circumstances in which he absconded from the house of deceased soon after the commission of the crime as proved by PW-6, PW-11, Case No. 56984/2016 FIR No. 381/2014 Page 77 of 80 State v. Pintu Yadav & others PS - Patel Nagar PW-15 and PW-25, though the burden of proof shifted upon him as per Section 106 of the Indian Evidence Act.
Final analysis:
134. It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused.
The prosecution has to establish before the Court that the accused persons had committed the offence beyond shadow of all reasonable doubts.
135. The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. V. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami V. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the Case No. 56984/2016 FIR No. 381/2014 Page 78 of 80 State v. Pintu Yadav & others PS - Patel Nagar accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
136. In the present case, the prosecution has been able to prove the complicity of accused persons in the commission of crime beyond shadow of all reasonable doubts as all the facts established are consistent only with the hypothesis of guilt of accused and the entire chain of evidence is complete and no reasonable doubt is left which can led to the conclusion of innocence of the accused persons. The prosecution has been able to prove all the ingredients of the offences for which accused persons have been charged and have faced trial.
137. Thus, keeping in view the forensic evidence, the medical evidence, the recovery of robbed articles at the instance of accused persons pursuant to their disclosure statements, the scene of crime report, the photographs of spot, the MLC and Postmortem Report of the deceased, the deposition of the independent witnesses which had remained coherent, reliable and trustworthy, it is held that the prosecution has been able to complete the chain of circumstances and has proved beyond shadow of all reasonable doubts that accused Case No. 56984/2016 FIR No. 381/2014 Page 79 of 80 State v. Pintu Yadav & others PS - Patel Nagar persons namely Pintu Yadav, Arun Yadav, Pankaj and Ravi @ Revadhar have committed the offences charged with.
Conclusion/Findings :
138. In view of above discussions & findings, accused Pintu Yadav, Arun Yadav, Pankaj and Ravi @ Revadhar are hereby held guilty and accordingly, convicted for the commission of the offences punishable under section 302 IPC read with Section 34 IPC and Sections 392/458/120-B IPC. However, they are acquitted of the charge framed under Section 411 IPC as they have been convicted for the main offence of robbery under Section 392 IPC.
139. Let they be heard separately on the point of sentence.
140. Copy of the judgment be provided to the convicts or their respective Ld. Counsels free of cost. Digitally signed SHEFALI by SHEFALI BARNALA BARNALA TANDON TANDON Date: 2024.02.29 16:31:23 +0530 Pronounced in the open Court on 29.02.2024 (Shefali Barnala Tandon) Additional Sessions Judge -05, (West) Tis Hazari Courts Delhi Case No. 56984/2016 FIR No. 381/2014 Page 80 of 80 State v. Pintu Yadav & others PS - Patel Nagar