Delhi District Court
State vs Mohd Kalam on 15 December, 2011
:1:
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 27/1
Unique Identification No. 02404R0437652006
State
Versus
1. Mohd Kalam
S/o Mohd Siddiqui
R/o village Kajyana
Balat Nand Pandol,
Post Rahika, PS Sikri,
District Madhubani, Bihar
present Address: C4/272, 73
Sultan Puri, Delhi.
2. Sonia
W/o Mohd Kalam
R/o village Kajyana
Balat Nand Pandol,
Post Rahika, PS Sikri,
District Madhubani, Bihar
present Address: C4/272, 73
Sultan Puri, Delhi.
3. Dharambir @ Dharam
S/o Madan Lal
R/o E3/431, Sultanpuri
Delhi.
SC. No. 27/1 1/55
:2:
4. Narender Kumar @ Bhaiya
S/o Purvalal,
R/o C4/17, Sultanpuri
Delhi.
FIR No. 1769/05
PS - Sultanpuri
U/s. 302/201/120B/34 of IPC
Date of institution of the case: 21/02/06
Arguments heard on: 08/12/2011
Date of reservation of order: 08/12/2011
Date of Decision: 15/12/2011
JUDGMENT
The brief facts of the case are that one DD number 21 B was recorded on 16.11.2005 at PS Sultanpuri, Delhi about the Dead Body which was lying at Sultanpuri in the back side of the road. This DD was handed over to ASI Hansraj who alongwith Constable Mahabir left for the spot.
On this DD, Rukka was prepared and case under Section 302 IPC was got registered.
During the investigation, rough site plan and scaled site plan were prepared. Dead Body was sent to the hospital for postmortem. Blood stained newspaper, Cello Tape and piece SC. No. 27/1 2/55 :3: of rope were collected and were taken into possession from the Hospital. After the postmortem of the body clothes, rope and sample blood and sample seal were taken in possession.
Accused persons Mohd. Kalam, Sonia, Narender and Dharmbir were arrested on 27.11.2005. Maruti Esteem Car bearing number DL3CG5502 was got recovered by the accused Mohd Kalam. One Mobile Phone was recovered from Mohd. Kalam. Accused Sonia also pointed out and got recovered one Mobile Phone. Another Mobile Phone from the house of Narender got recovered. One gold ring, gold chain and wrist watch was also got recovered and pointed out the place of occurrence. Their arrest memo were prepared and their personal search were also conducted.
Opinion regarding the cause of death was also obtained. Postmortem report was collected.
After identification, dead body was handed over to the LRs of deceased Radhey Shyam, Deepak and Sita Ram. TIP of recovered case property was also got conducted. Call details of mobile phones were also collected. Ownership document of Maruti Esteem Car was also collected. Charge Sheet was filed under Section 302, 201, 120B, 34 of IPC against all four accused persons.
SC. No. 27/1 3/55
:4: Case was committed to the Court of Sessions on 08.03.2006 and was received 22.03.2006.
Charge under Section 302/34 IPC and 201/34 IPC was framed against all accused person on 18.04.2006 to which accused persons pleaded not guilty and claim trial.
To prove its case, prosecution has examined PW1 to PW22 in all. After the evidence, statement of accused persons were recorded u/s 313 Cr.PC. All accused persons have denied the case of prosecution.
Accused Dharambir, Sonia and Mohd Kalam have stated that they are innocent and have been falsely implicated in this case and nothing was recovered from them or on their pointing.
Accused Narender has stated that he is innocent and has been falsely implicated in this case. He also stated that he was lifted from Badarpur Border at about 5.00 am, while he was coming alongwith Dharambir, after attending the marriage and nothing was recovered from him or at his instance.
None of the accused has examined any defence witness in his favour.
I have heard the Ld. App for the State, Ms. Ranjeet Bedi, Counsel for Mohd. Kalam, Sh. D.S. Dalal, Counsel for SC. No. 27/1 4/55 :5: accused Narender and Sonia and Ms. Sadhna Bhatia, counsel for accused Dharmender. I have also gone through the material placed on record with evidence adduced. Finding qua last seen evidence.
According to the case of the prosecution, PW2, Deepak and PW4, Vinod Kumar are witness to the last seen theory.
PW2, Deepak has stated that he has STD booth in Sadar Bazar, Delhi. He has further stated that on 15.11.2005, during the noon time, his father Radhey Shyam left the house and had not returned back. He tried to trace him but he was not traceable. His mother made a PCR call. His father was doing the business of money lending and he had given money to so many persons. PW2 has further stated that his father was also having an Esteem Car. His father received so many calls from mobile no. 9810628591 and during investigation, he has told to the Police officials that mobile no. 9810628591 was belongs to Mohd. Kalam. His father, deceased Radhey Shyam had given money to Mohd. Kalam for the installation of leather factory and Mohd. Kalam used to manufacture leather purse in the said factory.
PW2 has correctly identified the accused Mohd. SC. No. 27/1 5/55
:6: Kalam in the Court and has stated that he is the same person to whom his father has given money and has installed the factory. Mohd. Kalam also used to take the Esteem car of his father. Accused Mohd. Kalam had not returned a sum of Rs. 55,000/ which was given to him by his father.
PW2, Deepak further has deposed that his father was called by accused Mohd. Kalam for returning the amount, which was taken from his father. His father had left the house to meet accused Mohd. Kalam for taking the amount, which was given to the accused Mohd. Kalam and after that his father had not returned to home. He has further stated that his father was short tampered by nature and if anybody failed to return the amount, his father abused that person. Accused Mohd. Kalam was residing at Sultan Puri in the year 2005 alongwith his family.
Ld Defence counsel has contented that PW2 has nowhere stated that his father left the house with Mohd. Kalam but has stated that his father was called by Mohd. Kalam for taking the amount, which was taken by the Mohd. Kalam and thereafter, he did not returned the amount. Ld. Defence counsel has further argued that PW2, Deepak has not been able to told that as to how he came to know that his father had gone to SC. No. 27/1 6/55 :7: Mohd. Kalam for taking the loan amount.
Ld. Defence Counsel has further argued that PW2, Deepak has also not been able to tell as to how Maruti Esteem Car was recovered on the pointing of Mohd. Kalam, because, PW2 has not stated that Accused Mohd. Kalam had taken their Maruti Esteem Car and had not returned till 15.11.2005.
Ld. Defence counsel further argued that PW2 nowhere has stated that his father left the house with Mohd. Kalam on 15.11.2005.
Ld Defence Counsel has further argued that PW2 has stated that his father left the house on 15.11.2005, during the noon time, whereas, in the cross examination, he has stated that he used to left his house at about 8.00 am and return back at 10.00 p.m. normally, hence there was no possibility of presence of Deepak, PW2 at his house at that time, so he was not having any opportunity to see that his father Radhey Shyam had left the house in the noon time on 15.11.2005.
Ld. Defence Counsel has further argued that prosecution has not been able to produce any document that Radhey Shyam was doing the money lending business. PW2, during his cross examination has stated that he had shown some documents to the Police, but no document has been SC. No. 27/1 7/55 :8: placed on case file with regard to the money lending business being done by deceased Radhey Shyam, therefore, it cannot be believed that Radhey Shyam has lend the money to the Mohd. Kalam for installation of leather factory.
Ld defence counsel has further argued that Deepak, PW2 has stated that sometime his father used to give money in his presence or sometimes in his absence, but PW2 Deepak has not stated anywhere that his father had given the money in his presence to accused Mohd Kalam. It is further argued by Ld defence Counsel that nothing has been produced in the Court to prove that Radhey Shyam was doing money lending business and money was given to Mohd Kalam. Ld defence Counsel has further argued that PW2 has stated that his father, Radhey Shyam was called by Momd. Kalam, however, in his cross examination, PW2 has stated that his father was not called by accused Mohd. Kalam in his presence for any purpose atleast to repay the amount of Rs. 55,000/, so PW2 cannot be relied upon.
Ld defence counsel has further argued about the fact that accused Mohd. Kalam also sometimes used their Esteem car, is not appearing in the statement of PW2 and he has been confronted with the Ex. PW2/DA and it seems that he has SC. No. 27/1 8/55 :9: made this improvement to support the recovery of car at the instance of Mohd. Kalam.
Ld defence counsel has further argued that PW2 has admitted in the cross examination that amount of Rs. 55,000/ was not given in his presence to Mohd. Kalam by his father but he was told by his father. In such circumstances, PW2, Deepak cannot be relied upon in any manner regarding the last seen evidence.
Ld. Defence Counsel has further argued that the alleged recovered articles from the accused persons were released on Superdari to Geeta, wife of Radhey Shyam but later on Geeta expired and these articles were not produced, so the identity of the recovered articles has not been proved by the prosecution and none of the article has been identified due to their non production, that these articles were same which was recovered from accused persons for pointing out.
PW4, Vinod Kumar has stated that deceased Radhey Shyam was known to him as he was running STD booth and he used to take money from Radhey Shyam and also used to return the same to him. On the day of 15th of a month about two years ago at about 1.30 / 2.00 p.m., Radhye Shyam was climbing the staircase of his residence and both the SC. No. 27/1 9/55 :10: accused persons Sonia and Mohd. Kalam also followed Radhey Shyam and they were talking loudly and after that he has not seen Radhey Shyam. PW4, Vinod Kumar has correctly identified both the accused persons, Mohd. Kalam and Sonia who were followed and climbing the staircase of the house of Radhye Shyam on that day.
Ld defence counsel has argued that deposition of PW2, Deepak and PW4, Vinod Kumar are contradictory. PW2 has stated that his father had left the house and he has nowhere stated that accused Mohd. Kalam and Sonia had followed his father, whereas, PW4 has said that accused Mohd. Kalam and Sonia were climbing the staircase of the house of the Radhey Shyam at about 1.30 / 2.00 p.m., which itself shows that it is not certain whether they were leaving the house of Radhey Shyam or were entering in his house, therefore, it cannot be said that Radhey Shyam left the house with both these accused persons.
Ld defence counsel has further argued that this witness has also made improvement regarding the name of Mohd. Kalam and Sonia as this fact is not reflecting from the statement of PW4, Ex.PW4/DA, which shows that accused persons were not known to PW and he came to know the name SC. No. 27/1 10/55 :11: of the accused persons later on either during the investigation or at the instance of family members of the Radhye Shyam and on the basis of same, he has deposed about the accused name as Mohd. Kalam and Sonia and identified them before the Court, so PW4, Vinod Kumar, cannot be believed in any manner regarding the identity of the Mohd. Kalam and accused Sonia and it cannot be said that he had seen both the accused climbing the staircase of the house of Radhey Shyam on that day at about 1.30 or 2.00p.m.
Ld defence counsel has further argued that PW4, Vinod Kumar has stated that he knows Mohd. Kalam as he used to sit at the shop of Radhey Shyam and he had seen Mohd Kalam several times at the shop. PW4 has been confronted with his statement, Ex.PW4/DA that this fact is not appearing and if Mohd. Kalam was already known to him, then why he did not mentioned his name in his statement recorded by the Police. So identity of accused Mohd. Kalam and Sonia by PW4 is not based on his personal knowledge but is based on some other facts so he cannot be believed in any manner regarding the last seen evidence and identity of the accused Mohd. Kalam and Sonia.
On the other hand,Ld. PP has argued that non SC. No. 27/1 11/55 :12: production of the case property that the case property was handed over to the Geeta on superdari, who expired later on. Her son Deepak has produced one copy of NCR got recorded on 09.09.2006 regarding the missing of mobile phone by Geeta. Another copy of NCR 28B was also produced and according to the vehicle particulars produced on record i.e., Maruti Esteem Car bearing number DL3CG5502 was in the name of Geeta and PW2 has produced the photographs of Maruti Esteem Car before the Court, which are Ex. X1 & X2 and as Superdar Geeta has died so the case property could not be produced before the Court. Hence, the contention of Ld. Defence Counsel that no such case property was not seized in this case or was not existing is of no consequences.
Missing report of Radhey Shyam was got recorded vide DD no. 23 A at PS Sadar Bazar by the wife of deceased Radhey Shyam and she informed the Police at about 11.00 am about the missing of her husband, who was wearing white Safari Suit with black stripes and has left the house on 15.11.2005 without disclosing anything and he was wearing two rings in left hand, one gold chain and one mobile phone alongwith Rs. 20,000/ cash. Copy of the DD is marked as PZ2.
SC. No. 27/1 12/55
:13: Ld. Defence counsel has argued that as Geeta had expired so she could not be examined as witnes in this case and from DD entry, it is cleared that Radhey Shyam has left his house alone because Geeta had not disclosed in the DD that accused Mohd Kalam and Sonia had came to their house and when they left with her husband. Ld defence counsel has further argued that it was not disclose that the Esteem Car was taken by her husband on 15.11.2005 or car was lying at the house or was taken by Mohd Kalam. So recovery of Maruty Esteem Car from the Mohd. Kalam is doubtful.
Ld defence counsel has further argued that missing report itself is contradictory to the deposition of the PW2, Deepak and PW4, Vikas Kumar regarding the fact that Radhey Shyam had gone to collect the money from the accused Mohd. Kalam or that accused Mohd. Kalam and Sonia were seen with Radhey Shyam, while climbing the staircase of the house of deceased Radhey Shyam.
Ld defence Counsel has further argued that it cannot be believed that Mohd. Kalam and Sonia were in the house of deceased Radhey Shyam and they could not be seen or were not in the knowledge of the Geeta, Wife of the deceased Radhey Shyam so it is clear from the evidence SC. No. 27/1 13/55 :14: brought on record and missing report vide DD Entry that deceased Radhey Shyam had left his house alone on 15.11.2005.
Ld defence counsel has further argued that in the DD entry Mark PZ2, Geeta has not given any time, when her husband left the house, so the time at which Radhey Shyam had left the house is not corroborated by the witness PW2 & PW4 so it cannot be said that Radhey Shyam had left the house at about 1.30-2.00 p.m. or at any other time. So prosecution has not been able to prove the fact that Radhey Shyam left the house with accused Mohd. Kalam or was lastly seen with them at his house.
PW3 Sita Ram has stated that on 17.11.2005 his mother had lodged a missing report of her brother Radhey Shyam at PS Sadar Bazar.
Ld defence counsel has argued that this fact is also contradictory with Mark PZ2, which was got recorded by Geeta wife of Radhey Shyam. PW3 has stated that her mother got lodged missing report on 17.11.2005. Ld defence counsel has further argued that PW3 is not the son of Geeta but he is rather son of sister of deceased Radhey Shyam. So it is also not clear, whether this information was recorded by Geeta or SC. No. 27/1 14/55 :15: someone else.
Now it has to be seen whether deceased Radhey Shyam was having any dispute with accused Mohd Kalam. PW2 Deepak has stated that accused Mohd Kalam was having mobile number 9810628591 and on 11/11/2005, his father was called by accused Mohd Kalam for returning the amount of Rs.55000/, taken by him, from his father. His father had left the house to meet the accused Mohd Kalam for taking the amount.
PW16 Sh. Ajeet Singh, has produced the details of phone no. 9891272461, which was issued in the name of Radhey Shyam son of Suraj, r/o H. No. 1205, Hoshiar Singh Marg, Sadar Bazar, Delhi, certificate in this respect is Ex.PW16/A. He has also taken the details from the computer and has seen the call details of mobile no. 9891272461 running into 20 pages from 01/11/2005 to 15/11/2005, which are Ex.PW16/B. According to these call details report Ex.PW16/B at about 11.35, 12.59, 13.43, calls were received on 15/11/05 by deceased Radhey Shyam from mobile no. 9810628591, stated to be of accused Mohd Kalam.
Ld defence counsel has contended that SC. No. 27/1 15/55 :16: prosecution has not been able to brought on record any material that this mobile phone was in the name of accused Mohd Kalam. Ld defence counsel has further contended that PW16 Ajeet Singh has also not deposed about the cell ID as to from where the holder of mobile phone 9810628591 had made call at 11.35, 12.59, 13.43, on 15/11/05. Ld defence counsel has further contended that according to the call details Ex.PW16/B, these all calls were out going, but even it is not disclosed by PW16 or any other witness as to what was the location of caller i.e. deceased Radhey shaym, so it has not been proved in any manner, firstly that mobile phone from which these calls were made was belonging to Mohd Kalam, secondly the mobile phone on which the calls were received was in the possession of Radhey shyam at the time of making the call at these three times, so the prosecution has not been able to connect accused Mohd Kalam with deceased Radhy Shayam to the extent that he was called by accused Mohd Kalam, to recover the amount as deposed by PW2 Deepak, so otherwise also, prosecution has not been able to connect and prove the fact that accused Mohd Kalam had called deceased Radhy Shyam somewhere to make the payment of Rs.55,000/ as deposed by PW2 Deepak.
SC. No. 27/1 16/55
:17: Findings qua Motive.
In respect of the motive, PW2 Deepak has stated that his father had given money to accused Mohd Kalam for installation of leather factory, who used to manufacture leather purse in the said factory and accused Mohd Kalam had not returned the sum of Rs.55,000/, which was given to him by his father. PW2 Deepak has further deposed that his father was short tampered by nature and if anybody failed to return the amount, which was given by his father, his father used to abused that person.
Ld defence counsel has contended that neither prosecution has been able to brought on record that actually Rs.55,000/ were given to accused Mohd Kalam by deceased Radhy Shyam, as no documentary evidence has been brought on record. Ld defence counsel has further contended that the amount, as admitted by PW2 Deepak, in the cross examination of Rs.55,000/ was not given to accused Mohd Kalam by his father in his presence, but he was told by his father that he had given money to accused Mohd Kalam. Ld defence counsel has contended that if his father had told PW2 Deepak that he had given money to accused Mohd Kalam , then the same is hear say and actually money was not given to accused Mohd SC. No. 27/1 17/55 :18: Kalam in presence of PW2, so it cannot be said that accused Mohd Kalam had to return Rs.55,000/ to Radhy Shyam, which he was not willing to repay and it was the cause or motive to commit the murder of deceased Radhy Shaym.
Ld defence counsel has further contended that beside this no other reason has surfaced out from the deposition of witnesses to commit murder of deceased Radhy Shyam, as alleged.
Information regarding dead body was received by PW9 Constable Rakesh Kumar on 16/11/2005, while he was posted at PS Sultanpuri and was working as DD writer from 8 am to 4.00 pm and on that day, at about 9.25 am, an information was received on the wireless set of police station that one dead body was lying in the bushes on backside of road. He reduced this information in DD register vide DD no.21B. He has also proved the copy of the same as Ex.PW9/A. He has also produced the original DD register, before the Court. This DD 21/B Ex.PW9/A was handed over to PW15 ASI Hansraj Bhardwaj, who was posted as SI in PS Sultanpuri on 16/11/2005. On that day, he reached at the spot i.e. sector22, pocket13, backside road, Rohini alongwith Constable Mahabir, where dead body of a male was found SC. No. 27/1 18/55 :19: lying near the bushes. Face of the dead was towards the ground on a blood stained newspaper. Cello tape was found to be pasted on the mouth of the dead body. The dead body was found tied with rope of jute. The said unknown person was wearing safari suit of white/cream colour. Meanwhile SI Suraj Bhan came at the spot and after some time, SHO alongwith with his staff also came at the spot. He handed over DD no.21B to SHO for further proceedings.
PW20 Inspector Mohd Iqbal has stated that on 16/11/05, he was posted as SHO PS at sultanpuri. On that day, DD no.21B regarding dead body was handed over to PW15 ASI Hansraj, who reached at the spot with PW5 HC Mahavir. After some time, he was informed by PW15 ASI Hansraj on telephone that dead body was lying at the spot. Accordingly, he alongwith staff i.e. PW14 Ct Sunil Dutt and PW12 Constable Jai Inder reached there. Constable Surinder was driving the vehicle.
PW20 has further deposed that at the spot, he saw dead body of a male aged about 4045 years wearing white safari suit. His mouth was shut with the help of newspaper and cello tape and his hands and feet were found tide with rope. Blood was oozing out from his mouth. He SC. No. 27/1 19/55 :20: made inquiries from the persons present there, regarding the identity of the dead body, but none identified the same. He called the crime team there, who reached at the spot and had taken the photographs of the spot, as per his instructions. Dog squad also inspected the spot.
PW20 Inspector Mohd Iqbal has further deposed that thereafter newspaper from the mouth of the dead body was removed. He observed strangulation marks on the neck of the dead body. He did not see any other visible injury on the dead body. The rope, which was found tied on the hands of the dead body, was removed. PW20 has further deposed that he prepared rukka on the DD entry Ex.PW20/A and handed over the same to PW5 Ct Mahavir for registration of the case. He left for PS and came back at the spot with the copy of FIR and rukka, after registration of the FIR and handed over the same to PW20.
PW5 HC Mahavir Singh has stated that rukka was taken by him to PS and he got registered the case and came back to spot and handed over the rukka and copy of FIR to IO.
Ld defence counsel has contended that according to PW20 Inspector Mohd. Iqbal firstly he removed the SC. No. 27/1 20/55 :21: Newspaper, cello tape and rope which was found in the hands of dead body and thereafter he prepared rukka, whereas PW5 has stated that photographs were taken, search of dead body was conducted in which one ring, a currency note of Rs.100/ and a match box were recovered which were seized vide memo Ex.PW5/B and thereafter, rukka was prepared. So they have not corroborated each other in any manner, which shows that investigation has done by the police officials is tainted one.
PW1 HC Krishan Pal has stated that on 16/11/2005, he was posted at PS Sultanpuri and was working as Duty Officer from 8.00 am to 4.00 pm. On that day, at about 12.50 pm, one ruqqa was produced before him by Ct Mahabir, on the basis of which he recorded the FIR of this case, copy of which is Ex.PW1/A. He also made his endorsement on the rukka Ex.PW1/B . He also made DD No. 16A regarding recording of FIR, copy of which is Ex.PW1/C. He also made DD no.17A, copy of which is Ex.PW1/D and sent the special report to senior police officials through Ct Joginder. He has also produced the original DD register before the Court.
PW6 Ct Joginder has stated that on 16/11/2005, SC. No. 27/1 21/55 :22: he was posted at PS Sultanpuri, Delhi. On that day, at about 12.45 Pm, duty officer handed over him three copies of FIR. He took and delivered the same at DCP office, Ashok Vihar, Ld MM, Tis Hazari Courts, Delhi, Joint CP, PHQ. He went on official motorcycle no. DL1SN3996 and after delivering the copies of FIR, he came back to Police station at about 4.00 pm. PW5 HC Mahavir Singh has stated that in the cross examination that he took rukka at about 12.15 pm and came back at the spot at about 1.00 pm, so it corroborates with the statement of PW1 HC Kishan Pal, who has stated that PW5 came to him at about 12.50 pm. So, prosecution has been able to prove that one rukka was prepared by PW20 Inspector Mohd Iqbal, PW5 HC Mahavir got registered the case from HC Kishan Pal and came back at the spot and handed over the copy of FIR and rukka to the IO.
PW20 Inspector Mohd Iqbal has further deposed that he collected blood stained newspaper, cellotape alongwith pieces of rope and sealed the same in two separate pullandas with the seal of MI and seized the same vide memo Ex.PW5/B. Thereafter, he took search of the dead body and found one match box containing unburnt match sticks, one coin of Rs.2/ SC. No. 27/1 22/55 :23: and one currency notes of Rs.100/, one key and 23 small rubber bands. All these were sealed with the seal of MI and seized vide memo Ex.PW5/A. Ld defence counsel has contended that in view of the deposition of PW5 HC Mahavir and PW20 Inspector Mohd Iqbal, it is not certain whether seizure memo Ex.PW5/A and Ex.PW5/B were prepared after receiving the copy of FIR or before sending the rukka, so their testimony in this respect are doubtful.
PW20 Inspector Mohd. Iqbal has further deposed that he got sent the dead body to SGM hospital with the directions to preserve the same for 72 hours for the purpose of identification through one constable. WT messages and photo of the deceased were flashed for his identification. He deposited the exhibits with the MHC(M).
PW20 has further deposed that on 18/11/05, he came to know from PS Kotwali that a missing report has been lodged vide DD no.20A dated 17/11/05 in PS Sadar Bazar. He reached at missing person squad PS Kotwali and contacted SI Jagdish of PS Sadar Bazar. He directed him to bring family members of the missing person to Sultanpuri for identification of the dead body. In the evening, one Deepak and his Uncle SC. No. 27/1 23/55 :24: came to PS Sultanpuri and identified the dead body of one Radhy Shyam after seeing the photographs of dead body.
On the next day, they were called in mortuary of SGM hospital and the dead body was shown to them and they identified the dead body as of Radhy Shyam. PW20 recorded the identification statement of dead body, which are Ex.PW2/A and Ex.PW5/A. PW20 Inspector Mohd Iqbal has further deposed that he completed the inquest proceedings Ex.PW20/C and also made request to conduct the postmortem Ex.PW20/D. He also prepared the brief facts Ex.PW20/E. After the postmortem, dead body was handed over to relatives of the deceased vide memo Ex.PW14/A. PW20 has further deposed that after postmortem, doctors handed over pullandas containing clothes of deceased, rope, blood of deceased alongwith one sample seal, which were taken into possession vide memo Ex.PW14/B and deposited the same in the malkhana.
PW20 Inspector Mohd Iqbal has further deposed that in the evening, he contacted the family members of deceased Radhy Shyam and came to know from his wife Geeta that deceased was having one mobile phone, two gold SC. No. 27/1 24/55 :25: rings, finger rings, one gold chain and some money, at the time, when he left the house. She also disclosed the mobile number 9891272461 and further told that this mobile phone number was also mentioned in the missing report. Thereafter, he obtained the call details of this mobile number from Idea Cellular through constable Sunil Dutt on 21/11/2005, which are Ex.PW15/B and he made inquiries from mobile of deceased to other mobile phones, at whih Deepak, who was the son of deceased told that last call which was received from mobile number 9810628591 was from the mobile phone of their neighbour Abdul Kalam, with whom his father used to do money transaction.
PW20 Inspector Mohd Iqbal has further deposed that on 23/11/05, PW2 Deepak pointed out the factory of Abdul Kalam. They met there with one worker Abdul Manan, who told that Abdul Kalam had not come to the factory since 15/11/2005. the said worker also told that Abdul Kalam was residing in Sultanpuri area. Geeta, wife of deceased also told on the same day that one phone call was received by her husband on his mobile no. 9891272461 and her husband was talking with the caller in a loud voice and while talking so, he left the house. He recorded the statements of Deepak and SC. No. 27/1 25/55 :26: Geeta to this effect.
Ld defence counsel has contended that PW Geeta has not been examined as she expired during proceedings and PW2 Deepak has no where stated before the Court that he had pointed out the factory of Abdul Kalam, to the IO. Ld defence counsel has further contended that prosecution has not been able to connect in any manner that the mobile phone number as deposed by witness 9810628591 was of accused Abdul Kalam, so it is not proved that when Radhy Shyam left his house, he had received a call from accused Abdul Kalam or even if it is presumed so then it does not mean that Radhy Shayam actually had gone to meet Mohd Kalam.
PW7 Constable Chunni Lal has stated that on 16/11/2005, he was posted as photographer in crime team in North West District and reached at the spot with the crime team and took photographs of the dead body, as per directions of the IO. The tape was removed from mouth of dead body. The rope was also untied from the dead body and he again took photographs of dead body. He developed the negatives and handed over photographs to IO. He proved the photographs Ex.PW7/A1 tao A8 and negatives Ex.PW7/B to B8.
PW8 SI Suraj Bhan has also stated that he also SC. No. 27/1 26/55 :27: reached at the spot alongwith other members of crime team. He inspected the spot and found no other article at the spot except the dead body. He prepared his report Ex.PW8/A and handed over the same to the IO.
Ld defence counsel has contended that from the photographs, rope is visible only in the neck of the deceased, whereas according to PW20 Inspector Mohd Iqbal, hands and feet of dead body were found tied with the rope, which is not corroborated with the deposition of other witnesses. Ld defence counsel has further contended that PW7 has also stated that the hands and feet of dead body were tied with the rope and the rope was also untied from the dead body and he again took the photographs of the dead body, which is also not corroborating with the photographs as the rope is visible in the neck of the dead body.
Ld defence counsel has further contended that if the hands and feet of the dead body were tied with the rope then how rope is visible in the neck of the dead body. Ld defence counsel has further contended that according to PW20 Inspector Mohd Iqbal, he collected the piece of rope with other exhibits and took the same into possession, whereas PW11 Dr. Manoj Dhingra has stated that jute rope was also SC. No. 27/1 27/55 :28: sealed at the time of postmortem and has identified the same before the Court, which was taken out from the dead body at the time of postmortem, so it is not known whether this was the same rope, which were removed from the hands of hands and feet of the dead body or it is the rope, which was in the neck of the dead body as visible from the photographs. Ld defence counsel has further contended that it is also not known whether there were pieces of rope or one rope as PW8 SI Suraj Bhan of the crime team has not been able to told before the Court as to whether rope was single piece or two pieces, so it seems that rope has been planted to make a case of strangulation.
To prove the cause of death, prosecution has examined PW11 Dr. Manoj Dhingra. He has stated that he was posted since 2002. He know Dr. Ashish Jain, who had worked under him and during the course of official duties, he had seen him writing and preparing the reports and thus he is well conversant with his handwriting and signatures. He has further deposed that Dr. Ashish Jain has left the hospital and his present whereabouts are not known.
PW11 has further deposed that he has seen the postmortem report of deceased Radhy Shyam, which is in the SC. No. 27/1 28/55 :29: handwriting of Dr. Ashish Jain. The same is Ex. PW11/A and he identified the signatures of Dr. Ashsih Jain at point A. He had also participated in the postmortem conducted on the dead body of Radhey Shyam and he has identified his signatures at point B on the same. The dead body was brought by Inspector Mohd. Iqbal, SHO PS Sultanpuri alongwith 12 inquest papers and four photographs.
PW11 has further deposed that there was alleged history of found dead on 16/11/05 with hand and feet tied with jute cloth. Rigor mortis were passed off, eyes were closed, mouth closed. On external examination, certain injuries were seen and according to his opinion, cause of death was asphyxia as a result of ligature, pressure over neck structure subsequent to strangulation. All injuries were antimortem in nature and of fresh duration. The time since death was approximately four days. Clothes of deceased, blood sample and jute rope were sealed and were handed over to IO.
PW11 has further deposed that on 17/12/2005, he received an application from Inspector Mohd. Iqbal, Ex.PW11/B for seeking opinion about jute rope, who produced the cloth sealed parcel sealed with the seal of SGMH, Mortuary. PW11 has further deposed that he and Dr. SC. No. 27/1 29/55 :30: Ashish Jain examined the said parcel, which was found containing Jute rope having brown stains. After examining the jute rope and PM report Ex.PW11/A, they both opined that the ligature mark mentioned in the PM report could be possible with the jute rope produced before him or similar such ligature. He again resealed the jute rope with the seal of AJ and handed over to police. His opinion about jute rope is Ex.PW11/C, which was signed by him at point A and by Dr. Ashish Jain at point B. PW11 Dr. Manoj Dhingra has further identified the blood stained clothes of deceased i.e. shirt, pant, baniyan and underwear as Ex.P1 to Ex.P4. PW11 has also identified the jute rope as Ex.P5.
Ld defence counsel has contended that jute rope seems to be planted as from the deposition of witnesses, it is clear that hands and feet of the dead body were found tied with rope and at that time no rope was found in the neck of the deceased, whereas in the photographs rope is visible in the neck of the deceased and hands and feet of dead body were free.
Ld defence counsel has further contended that PW7 Ct Chuni Lal has stated that photographs were taken SC. No. 27/1 30/55 :31: after untying the dead body and he again took the photographs of dead body, which shows that before untying the dead body, photographs were taken but the same have not been placed on record nor proved in any manner, which shows that rope was planted in the neck of the deceased to make out a case of strangulation with the rope.
Ld defence counsel has further contended that even PW8 SI Suraj Bhan has not been able to depose as to whether there was one single piece rope or was two pieces of rope. From the deposition of witnesses, it is clear that one rope from the spot was taken into possession by the IO and again rope was seized by doctor at the time of postmortem and was handed over to the IO. So deposition of witnesses are not corroborating with each other and it is not known whether the hands, feet and neck of deceased were found tied with single rope or whether there was one rope or two ropes so cause of death with the help of rope and opinion of PW11 Dr. Manoj Dhingra seems to be doubtful and cannot be relied upon.
Ld defence counsel has further contended that according to PW11, time since death was approximately four days and postmortem of dead body was conducted on SC. No. 27/1 31/55 :32: 19/11/2005 and at about 12.30 pm. Time of death comes to 15/11/2005 at about 12.30 pm, which is not corroborating with the deposition of PW2 Deepak and PW4 Vinod Kumar that lastly they had seen deceased Radhy Shayam at about 1.30 pm or 2.00 pm, in his house. So the findings of PW11 regarding time since death is also doubtful, hence cannot be relied upon.
Ld defence counsel has further contended that according to PW12 Ct Jayender Singh, rope was also seized by SHO and PW17 Inspector Suraj Bhan has stated that legs, hands and neck of dead body were found tied with rope, so there is no corroboration regarding the fact that the neck of the deceased was also found tied with jute rope.
Ld defence counsel has further stated that PW12 Ct Jayender Singh has stated in the cross examination that rope with which hands of dead body were tied was cut. There were two ropes having a knot between them. The said ropes were measured as 1 feet 2 inches. Said rope was converted into pullanda and parcel was sealed with the seal of MI. Both these parcels were seized vide seizure memo Ex.PW5/B. So, from the deposition of PW12, it is clear that both the ropes were taken into possession by the IO, then it is not known how the rope was found tied in the neck of deceased, which was taken SC. No. 27/1 32/55 :33: into possession by PW11 at the time of postmortem of the dead body, so it seems that rope has been planted upon in the neck of dead body to obtain the opinion of the doctor, regarding cause of death.
Findings qua arrest of accused persons and recovery from them In this respect, PW20 Inspector Mohd Iqbal has stated that on 27/11/2005, he was present in the PS along with SI Randhir Singh, HC Attar Singh, Ct Sunil Dutt, Ct Jag Pravesh and Lady Constable Babita and while they were about to leave the PS for investigation of this case at about 1.15 pm, one secret informer came to him and told that one of the accused, who was involved in this case was standing at bus terminal Sultanpuri and was going to Punjab. He also joined the secret informer in the investigation with them and they all reached at bus terminal, Sultanpuri, where on seeing a person, who was standing in the corner of bus terminal, secret informer pointed towards him as Mohd Kalam. They apprehended him and PW20 interrogated him. He was arrested vide memo Ex.PW14/C and his personal search was taken vide memo Ex.PW14/D. At the time of apprehension, accused was having SC. No. 27/1 33/55 :34: one mobile phone in his hand make Nokia 3610 having no. 9891272461 about which accused told that the same was of deceased Radhy Shyam. Accused also told that he had made a call on this phone with his mobile phone. One red colour leather purse containing two small dairies, visiting card and Rs.310/ in cash and one key of car was recovered from his personal search. He sealed the articles with the seal of MI and seized the same vide memo Ex.PW14/G. Accused made disclosure statement Ex.PW14/E. Ld defence counsel has contended that the fact as deposed by PW20 regarding recovery of mobile phone make 3610 having no. 9891272461 is of no consequence as only one mobile phone was stated to be in the possession of the Radhy Shyam, when he allegedly left his house and during investigation Geeta wife of deceased produced the bill of said mobile phone Ex.P2, seized vide memo Ex.PW20/F, according to which the same was Nokia 6600 with IMEI no. 3537668725961 whereas according to seizure memo of the mobile phone allegedly recovered from accused Mohd Kalam, was having IEMI no. 350884409630061, so neither the make nor the IMEI is corroborating with phone, which was in the possession of the deceased Radhy Shyam, at the time, when SC. No. 27/1 34/55 :35: he allegedly left his house and the phone, which was allegedly recovered from the accused, which was seized vide memo Ex.PW14/G, so it cannot be said that accused Mohd Kalam was having the mobile phone of deceased Radhy Shyam.
Ld defence counsel has further contended that it is not mentioned in Ex.PW14/G that this phone, which was recovered from accused Mohd Kalam was having any sim card with the same, so it cannot be said that mobile set, which was recovered was having the mobile number 9891272461. Ld defence counsel has further contended that in such circumstances, the prosecution has not been able to connect the recovered mobile phone from the possession of accused Mohd Kalam, as the same of deceased Radhy Shyam, in any manner.
PW20 Inspector Mohd Iqbal has further deposed that thereafter accused Mohd Kalam led them to Sultanpuri road, P2 block near Gurudwara and pointed out one Maruti Esteem car of cherry colour bearing no. DL3CG5502 and stated that it was the same car, in which the dead body of Radhy Shaym was removed from his factory and dropped in the bushes of sector22, Rohini. He also told that the key, which was recovered in his personal search, was of this Maruti SC. No. 27/1 35/55 :36: Esteem car. The key was inserted and the Maruti Esteem car was unlocked. The esteem car was also checked from inside. The esteem car was taken into possession vide memo Ex.PW14/F. HC Attar Singh was left behind to safeguard the car.
Ld defence counsel has contended that family members of deceased Radhy Shyam has never made any report regarding the missing of maruti esteem car no. DL3CG550 nor PW2 Deepak or PW6 Ct Joginder had deposed that when deceased Radhy Shyam left his house, he had also taken car with him. Ld defence counsel has further contended that none of the witnesses has deposed and clarified as to how accused Mohd Kalam came into possession of maruti esteem car.
Ld defence counsel has further contended that if PW20 Mohd Iqbal, had checked Maruti esteem car from inside, then some blood stains must have been found either on the seat or in the dickey of said car, if the dead body was removed in the said maruti car to the place, where it was thrown, but nothing has been deposed so nor any efforts have been made to trace out the blood stains in the maruti esteem car. Ld defence counsel has further contended that maruti SC. No. 27/1 36/55 :37: Esteem car was found lying in public place, so it cannot be said that the same was in possession of the accused Mohd Kalam, in any manner. Ld defence counsel has further contended that the key, which allegedly recovered from accused Mohd Kalam, as stated, was inserted in the car and car was opened, but it is not known whether with the said key, car could have been started or not. It is also not deposed by PW20 Mohd Iqbal as to who removed Maruti Esteem car to the PS or not whether it was removed by starting the same or was toe chained to the PS. Ld defence counsel has further contended that seizure memo of Maruti Esteem Car is not bearing the signatures of lady constable Babita, so it seems to be doubtful that lady constable had also accompanied the police party and witness the recovery of Maruti Esteem car. Ld defence counsel has further contended that according to PW10 Lady Ct Babita, they stayed at Sultan Puri till about 3.00/3.30 and all the writing work was done outside the jugghi, but she has not signed any of the document i.e. disclosure statement of accused,which shows that she was not present there, when the document was prepared or the documents were not prepared in his presence.
Ld defence counsel has further contended that SC. No. 27/1 37/55 :38: according to PW14 HC Sunil Dutt, Maruti Esteem Car was found parked near gurdawar, but no inquiry has been made as to since when Maruti Esteem car was lying there and if it was lying there since 16/11/2005 and was recovered on 27/11/905, then why no none noticed the said maruti esteem car lying unattended there.
Ld defence counsel has further contended that till 27/11/2005, family members of the Radhy Shyam did not make any statement to the IO that Maruti Esteem car was also missing and the same should be traced out nor they have stated that it was handed over to accused Mohd Kalam. Ld defence counsel has further contended that even family members of Radhy Shyam failed to produce the Maruti Esteem car before the court, hence none of the witness has identified the maruti Esteem Car before the court as the same, which was recovered from Sultanpuri road on the pointing out of accused Mohd Kalam. Ld defence counsel has further contended that identification of maruti Esteem car from the photographs is of no consequence as photographs have also been produced before the Court at later stage and family members of deceased Radhy Shyam did not cooperate in producing the case property, which shows that they have SC. No. 27/1 38/55 :39: intentionally not produced the maruti Esteem car before the Court for the reasons best known to them. Ld defence counsel has further contended that PW19 Inspector Randhir Singh has stated that mobile phone make nokia 1100 was recovered from accused Mohd Kalam, whereas according to seizure memo Ex.PW14/G mobile phone make 3610 Nokia was recovered from accused Mohd Kalam, so it is not known as to which of the phone was recovered from accused Mohd Kalam, so the recovery from the accused seems to be doubtful.
PW20 Inspector Mohd Iqbal has further deposed that thereafter they further proceeded to the house of accused i.e. at C4/272273, Sultanpuri, Delhi as pointed out by accused Mohd Kalam and on seeing a lady standing in front of her house, accused Mohd Kalam pointed out her as his wife Sonia. She was apprehended with the help of Lady Constable Babita and was interrogated. At that time, she was having mobile phone make Nokia 1100 in her hand. She was also having one lady purse of black colour in her hand. Accused sonia was arrested vide memo Ex. PW10/A. Her personal search was also conducted by lady Constable Babita vide memo Ex.PW10/B. Mobile phone make nokia 1100 bearing no. 9891279096 and Rs.103/ in cash were recovered in her SC. No. 27/1 39/55 :40: personal search. Her disclosure statement was also recorded vide Ex.pW14/F and in furtherance of the same, accused Sonia took them to the first floor of her house, from where she got recovered one mobile phone make Nokia 6600 from the headside portion of the wooden bed (diwan) bearing IMEI no. 353766/00/872596/1. she also got recovered one more mobile phone make Nokia 1100 bearing IMEI no 35759200/07332/2. Both these mobile phone were taken into possession after preparing pullandas sealed with the seal of MI vide memo Ex.PW10/C. Accused sonia told that these mobile phones were of deceased Radhy Shyam and also told that sim cards of both the mobile phones were taken out and thrown away. .
Ld defence counsel has contended that mobile phone Nokia 1100 has not been connected with deceased Radhy Shyam, in any manner as no complaint was made by the family members of the deceased that he was having more than one mobile phone with him. Ld defence counsel has further contended that except mobile phone make 6600, prosecution has not been able to connect, both mobile phones make Nokia 1100 each with this case, in any manner or that these were belonging to deceased Radhy Shaym,hence the disclosure statement of accused Sonia that mobile phone were of deceased Radhy Shaym is of no consequence. SC. No. 27/1 40/55
:41: On the other hand, Ld APP has contended that according to the receipt of Nokia 6600, having IMEI no. 3537660089261 was produced by Geeta before IO and the same was seized, which shows that this phone Nokia 6600 having IMEI no. 353766/00/872596 was of Radhy Shyam, so prosecution has been able to connect the mobile phone of deceased Radhy Shyam with accused Sonia, which was recovered from her possession.
Ld defence counsel has further contended that during examination of witnesses, this mobile phone nokia 6600 has not been produced at any time for identification as the same phone, which was recovered from accused Sonia, hence in absence of case property, witnesses cannot be relied upon.
PW20 Inspector Mohd Iqbal has further deposed that thereafter accused Mohd Kalam and Sonia took the police party near P1 Block, Sultanpuri ganda nala and pointed out Narender, who was selling fruits on a rehri. He was apprehended on the pointing of accused Sonia. He was interrogated and arrested vide memo Ex.PW14/G and his personal search was taken vide memo Ex.PW14/H. One choclate colour leather purse containing Rs.113/ in cash alongwith some visiting cards was recovered. Accused SC. No. 27/1 41/55 :42: Narender also got recorded his disclosure statement Ex.PW14/I. Thereafter, accused Narender led the police party to his house i.e. C4/17, Sultanpuri, Delhi from where he got recovered two gold rings from an iron box, in the first floor room of his house. Accused Narender also disclosed that these gold rings belongs to deceased Radhy Shyam. Both the rings were sealed with the seal of MI and were taken into possession vide seizure memo Ex.PW14/J. Ld defence counsel has contended that these two rings have not been produced during the examination of any of the witness, hence identity of case property before the Court is not proved to the extent that the recovered two finger rings from accused Narender were the same, which were of deceased Radhy Shyam. Ld defence counsel has further contended that PW10 Lady Ct Babita has not signed as a witness to the disclosure statement of accused Narender, hence disclosure statement of accused Narender seems to be doubtful. Ld defence counsel has further contended that there is no public witness to the proceedings of recovery. Even no one was asked to join the proceedings regarding recovery from the house of accused Narender. Ld defence counsel has further contended that witnesses have not been able to disclose the description i.e. length and width of the iron box SC. No. 27/1 42/55 :43: from which the rings were recovered. Ld defence counsel has further contended that it is not known whether the house from where the recovery was effected as deposed by the witnesses was belonging to accused Narender or not.
Ld defence counsel has further contended that no site plan of place of arrest or recovery was prepared, which also creates doubts on the case of prosecution as to whether actually accused Narender was arrested from the place and recovery was effected, as deposed by the witnesses.
PW20 Inspector Mohd Iqbal has further deposed that thereafter all the accused persons led them to P3 block near Sankala Medical Store Sultan Puri, where on seeing a person coming in a gali, accused Narender pointed out towards him as accused Dharambir. He was apprehended by them and was interrogated. He was arrested vide memo Ex. PW14/K and his personal search was conducted vide memo Ex.PW14/L. One brown colour leather purse containing Rs. 120 and some visiting card was recovered from his personal search. Accused Dharambir also made disclosure statement Ex.PW14/M and after his arrest, accused led the police party to his house from where he got recovered one wrist watch Alwyn Quartz and one gold chain from an iron box, kept in the room on the first floor of his house. These articles were SC. No. 27/1 43/55 :44: sealed with the seal of MI and were seized vide memo Ex.PW14/M. Again, Ld defence counsel has further contended that there is no public witness to the recovery and arrest in respect of accused Dharambir, as deposed by them. PW10 lady Ct Babita has not signed the disclosure statement of accused Dharambir as a witness. Ld defence counsel has contended that PW10 Lady Ct Babita and PW14 HC Sunil Dutt have not identified the case property i.e. wrist watch Alwyn Quartz and one gold chain before the Court as both these articles were not produced during their examination.
On the other hand Ld APP has contended that PW19 Inspector Randhir Singh and PW20 Inspecotr Mohd Iqbal have identified the wrist watch and gold chain before the Court as Ex.P6 and P7, so the contention of Ld defence counsel is not tenable, in any manner.
Ld APP has further contended that PW14 HC Sunil Dutt and PW19 Inspector Randhir Singh have corroborated that recovery was effected from first floor and further corroborated that accused went to first floor and wrist watch was recovered from iron box and the writing work was done at the spot.
Ld APP has further contended that PW10 Ct SC. No. 27/1 44/55 :45: Babita and PW19 Inspector Randhir Singh have further corroborated with each other as PW10 lady Ct Babita has stated that they reached at P2 block at about 7/7.30 pm, whereas PW19 Inspector Randhir Singh stated that they stayed at the house of accused Dharambir till 7.30 pm. Ld APP has further contended that certain minor discrepancies are bound to come in the deposition of witnesses, due to lapse of time, but witnesses have corroborated each other regarding the time when they reached at the house of accused Dharambir, so nothing has come in the cross examination of the witnesses to disbelieve their testimonies and the contentions of Ld defence counsel regarding identity of case property is also not tenable as PW19 SI Randhir Singh has identified the wrist watch and gold chain, before the Court.
PW20 Inspector Mohd. Iqbal has further deposed that thereafter all the four accused persons led the police party to sector 22, pocket13, Rohini, where they pointed out the place of occurrence, where they had thrown the dead body of Radhy Shyam and separate pointing out memo in this respect were prepared i.e. Ex.PW14/G, Ex.PW14/H, Ex.PW14/I and Ex.PW14/J. Thereafter all the accused persons led the police party to Sadar Bazar, at house no. 2317, Bagichi Raghunath, SC. No. 27/1 45/55 :46: Delhi and pointed out the place where they had committed murder of Radhy Shyam and separate pointing out memos i.e. Ex.PW14/K, Ex.PW14/L, Ex.PW14/M and Ex. PW14/N were prepared. PW20 has further deposed that hereafter they came back to PS and case property was deposited in the malkhana.
Ld defence counsel has further contended that the place where the dead body was found lying was already within the knowledge of the police, hence pointing out by accused persons, is of no consequence. Ld defence counsel has further contended that regarding the place where murder was committed as deposed by the witnesses, on the basis of disclosure statement of accused persons, the house owner has not been examined nor cited as a witness by the prosecution. Ld defence counsel has further contended that it is also not connected that accused Mohd Kalam or any other accused was tenant or owner of the same or was having any dealing with the said house on the day of incident or thereafter. So the pointing out of said place is of no consequence.
Ld defence counsel has further contended that nothing was found there nor any witness has deposed, so, hence it cannot be said that the murder of Radhy Shaym was committed there.
PW13 SI Manohar Lal has stated that on
SC. No. 27/1 46/55
:47:
08/12/05, he was working as draftsman NW district, Delhi
and on that day, he was called at PS Sultanpuri by PW20
Inspector Mohd Iqbal and from there, he accompanied SI
Suraj Bhan and reached at Pocket no.13, Sector22, Rohini, i.e. place of occurrence, where he took rough notes and measurements on the direction of SI Suraj Bhan. He prepared scaled site plan on the basis of rough notes and measurement Ex.PW13/A, which was handed over to the IO. Thereafter, he destroyed the rough notes and measurements.
PW21 Ct Santosh Kumar has produced the register no.19 and RC Book. He has identified the writing and signatures of HC Satpal as he is acquainted with his writing and signatures as he has worked with him. He has also identified entry no. 9654, 9672, 9695, which were made by HC Satpal and has proved the copy of same as Ex.PW21/A. Photocopy of RC no. 701/21/105 is Ex.PW21/B. PW21 has also produced the original register no. 19 and RC book.
TIP of the recovered case property was done by PW18 Sh. Deepak Garg, the then Ld MM. He has stated that on 06/01/06, he was posted as MM at Rohini Court, Delhi and was working as Link MM of Sh. S.S. Rathi, the then Ld MM. He conducted the TIP of case property of this case vide SC. No. 27/1 47/55 :48: application Ex. PW18/A. On 10/01/06, he conducted the part proceedings vide application Ex.pW18/B and made his endorsement on Ex.PW18/A. He further fixed the TIP for 16/01/06 and completed the same and on 16/01/06, vide Ex.PW18/C. IO has identified the signatures of witness Geeta. After conclusion of TIP proceedings, one copy was given to IO. PW18 has not been cross examined in any manner, hence the TIP of the case property got conducted by the prosecution is not in dispute, in any manner.
Exhibits, which were collected from the spot and from the doctor were sent to FSL. These were examined by PW22 Shashi Bala, who has stated that on 19/12/05, four sealed parcel were received at FSL in connection with this FIR and same were assigned to her. She has further stated that parcel no.1 was containing Ex.1 i.e. damped pieces of news paper alongwith extensive fungal growth. Parcel no.2 was containing Ex.2a, 2b,2c, and 2d. Ex.2a i.e. one shirt having brown stains, Ex.2b one pant having yellowish brown stains, Ex.2c one damp banian having yellowish stains and Ex.2d one damp underwear having yellowish stains. Parcel no.3 was containing Ex.3 i.e. one jute rope alongwith fungal growth. Parcel no.4 was containing Ex.4 i.e. blackish foul smelling liquid described as blood of deceased. On examination, she SC. No. 27/1 48/55 :49: found blood on Ex.1, 2a, 2b, 2c, 2d, 3 and 4. She has proved her report as Ex.PW22/A. She also serologically examined the exhibits and found human blood on Ex.2a, Ex2b and Ex.3. She also prepared serological report Ex.PW22/B PW22 has also identified the case property i.e newspaper in Hindi language as Ex.P1, wearing clothes of deceased as Ex.P1 to P4 and one jute rope as Ex.5 and blood sample as Ex.P10.
PW22 has not been cross examined by Ld defence counsel in any manner, so her testimony is unrebutted and unshaken.
In view of the above discussion, contentions of Ld defence counsel for the accused persons are forceful since PW2 Deepak and PW4 Vinod Kumar do not inspire any confidence regarding last seen evidence as to whether deceased Radhy Shyam was seen with accused Mohd Kalam and Sonia on 15/11/05 at about 1.302.00 pm. Prosecution has also not been able to prove in any manner that accused Mohd Kalam had taken Rs. 55,000/ from deceased Radhy Shyam which he was not giving back and it was the motive for committing the murder of Radhy Shyam by accused Mohd Kalam and his associates. Prosecution has also not been able to prove, in any manner that accused Mohd Kalam had made SC. No. 27/1 49/55 :50: any phone call on the phone number of the deceased Radhy Shyam as from the deposition of PW16 Sh. Ajeet Singh, Assistant Nodal Officer, Idea Cellular, it is not proved that mobile phone no. 9810628591 was belonging to accused Mohd Kalam and this mobile phone was not recovered during investigation at any time either from the accused Mohd Kalam or from any other accused persons. Prosecution has also not been able to prove in any manner that deceased Radhy Shyam was murdered in house no. 2317, Bagichi Raghunath, Delhi as neither owner of the same has been examined nor it has been brought on record that accused persons were connected with the said house in any manner being tenant or owner of the same or that accused persons were lastly seen there with deceased Radhy Shyam on 15/11/2005 after about 1.30 to 2.00 pm. The prosecution has also not been able prove in any manner that Maruti Esteem Car DL3CG5502 was taken with him by deceased Radhy Shyam when allegedly he left his house on 15/11/05 at about 1.30 or 2.00 pm or it was given to accused Mohd Kalam at any time before or that the dead body was removed in the said Maruti Esteem car by accused persons and was thrown in Sector22, Pocket13, Rohini, SC. No. 27/1 50/55 :51: because no blood stains were found in the Maruti Esteem Car and the same was recovered from the public place. More so, no missing report of Maruti Esteem car was lodged by the family members of deceased Radhy Shyam nor PW2 Deepak has stated before the Court that his father had taken the Maruti Esteem Car with him or it was taken by accused Mohd Kalam at any time before 15/11/2005.
Prosecution has also not been able to prove the cause of death with the rope, which was found in the neck of deceased Radhy Shyam at the spot as the witness have contradicted each other as to whether any rope was found in the neck of deceased Radhy Shaym or not when firstly it was seen lying at the place by the police witnesses. Time since death is also not corroborating with the missing of deceased Radhy Shyam on 15/11/05 at about 1.30 or 2.00 pm, so it also seems to be doubtful whether actually Radhy Shyam on 15/11/05 had left the house lastly at about 1.30 or 2.00 pm or he had gone before that. Missing report was also lodged on 17/11/2005 and it is not explained as to what steps had taken by the family members of deceased Radhy Shyam from 15/11/05 till 17/11/05. There is no circumstantial evidence completing the chain against the accused persons that they had committed murder of Radhy Shyam, so offence u/s 302/34 of SC. No. 27/1 51/55 :52: IPC is not proved in any manner against accused persons for which they are acquitted.
Prosecution has also not been able to prove in any manner, that the accused persons caused the evidence to disappear by concealing the dead body of Radhy shyam in a cartoon and had thrown the same in the bushes at a vacant place in sector22, Pocket13, Rohini as the dead body was found by the police, who reached there, where as the accused persons were apprehended on 27/11/2005 and pointed out the place, where the dead body was thrown, which is of no consequence and cannot be treated as the discovery of fact in furtherance of their disclosure statement, as this place was already within the knowledge of the police. It has also not been proved in any manner that dead body was removed by accused persons in Maruti Esteem car DL3CG5502 and was thrown in Sector22, Pocket13, Rohini with intent to cause disappearance of evidence of murder as no blood stains were found in Esteem car nor any evidence found connecting the accused with the car or that car was used in throwing the dead body, so offence u/s 201/34 of IPC is also not proved in any manner, hence all the accused persons are acquitted for the same.
SC. No. 27/1 52/55
:53: According to the deposition of witnesses, one mobile phone was recovered from the accused Mohd Kalam stated to be of deceased Radhy Shaym, but the same has not been connected in any manner with the mobile phone of deceased, so none of the articles recovered from accused Mohd Kalam were belonging to deceased Radhy Shyam, so accused Mohd Kalam cannot be held guilty even u/s 411 of IPC.
According to the deposition of witnesses one mobile phone make Nokia 6600 having IMEI no. 353766008725961 was got recovered by accused Sonia from her house on 27/11/2005. All these witnesses have corroborated each other in this respect and they inspire confidence. Nothing has been brought or has come in their testimonies to disbelieve their depositions. PW20 Inspector Mohd Iqbal has also proved the fact that this mobile phone make Nokia 6600 with the above IMEI number was belonging to deceased Radhy Shyam as during investigation, Geeta wife of deceased had produced the bill of the same, which was seized by PW20 vide memo Ex.PW20/F, and the bill is Ex.PZ. Accused Sonia has not claimed the ownership of this mobile phone in any manner. Mobile phone was recovered after about 12 days and there is no other evidence on record to SC. No. 27/1 53/55 :54: connect that accused Sonia after committing murder, retained the mobile phone of deceased Radhy Shyam with her, so prosecution has been able to prove offence u/s 411 of IPC only against accused Sonia, for which she is held guilty and convicted for the same.
According to the deposition of witnesses, two finger rings were also got recovered by accused Narender from his house and witnesses to the recovery are inspiring confidence and they can be relied upon in this respect as they have corroborated each other. These two finger rings were also identified by Geeta during the TIP conducted by PW18 but neither Geeta has been examined before the court because she expired nor case property has been produced by PW2 Deepak, hence none of the witness to the recovery has been able to identify these two finger rings before the Court, hence this fact is not proved that two gold rings, which were recovered from the possession of accused Narender were the same, which were seen by the witnesses to the recovery at the time, when these were got recovered from his house by accused Narender, so accused Narender cannot be held guilty for the offence u/s 411 of IPC, in any manner.
Accused Dharambir was arrested in this case on SC. No. 27/1 54/55 :55: the pointing out of remaining accused persons. From his possession, one wrist watch Alwyn Quartz and one gold chain were recovered, from his house on his pointing out. These have been identified by the witnesses before the Court as these were produced by MHC(M). Both these articles were identified by Geeta during the TIP conducted by PW18, Sh Deepak Garg, the then Ld MM, who has not been cross examined in any manner and his testimony went unrebutted and unshaken. Again, this recovery was also effected after 12 days of the incident and there is no evidence on record that accused Dharamabir after committing murder of deceased Radhy Shyam retained both these articles, so prosecution has been able to prove offence u/s 411 of IPC only against accused Dharambir, as he has not claimed the ownership of both these articles, in any manner. Accordingly, accused Dharambir is held guilty for the offence u/s 411 of IPC and is convicted for the same.
Announced in Open Court on dated 15/12/2011 ( Virender Kr. Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC. No. 27/1 55/55 :56: IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 27/1 Unique Identification No. 02404R0437652006 State Versus Dharambir @ Dharam S/o Madan Lal R/o E3/431, Sultanpuri Delhi.
FIR No. 1769/05
PS - Sultanpuri U/s. 411 of IPC Date of Decision: 15/12/2011 Date of order on Sentence: 15/12/2011 15/12/2011 Order on Sentence Present: Ld APP for State Convict Dharambir in person with proxy counsel Sh. D.S. Dalal for Amicus Curiae Ms Sadhna Bhatia.
Ld Defence counsel submits that convict Dharambir is aged about 26 years. He is umarried having one SC. No. 27/1 56/55 :57: elder brother and his sister in law. He is doing welding work. He is not a previous convict nor habitual offender. Ld defence counsel has further contended that he has been convicted under section 411 of IPC only and considering the period of custody and value of the case property i.e. one wrist watch and one gold chain, he be released on already undergone custody period. Ld defence counsel has further contended that since convict remained in custody for a quite long time, hence presently his financial is very poor and is earning Rs. 5000/ per month, hence he is unable to pay any fine, so he be released on already undergone imprisonment.
On the other hand, ld APP has contended that the wrist watch and gold chain were belonging to deceased Radhy Shyam, who was murdered, hence appropriate sentence be awarded.
Offence u/s 411 of IPC is punishable with imprisonment for a term of either description which may extend to 3 years or with fine or with both.
Considering the age and antecedents and character of the convict alongwith the submissions of Ld defence counsel, sentence of three years SI is imposed on him.
Benefit of section 428 of Cr. PC is given to the convict .
SC. No. 27/1 57/55
:58: Convict Dharambir remained in the custody from 27/11/05 till 05/10/10.
Announced in Open Court on dated 15/12/2011 ( Virender Kr. Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC. No. 27/1 58/55 :59: IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 27/1 Unique Identification No. 02404R0437652006 State Versus
3. Sonia W/o Mohd Kalam R/o village Kajyana Balat Nand Pandol, Post Rahika, PS Sikri, District Madhubani, Bihar present Address: C4/272, 73 Sultan Puri, Delhi.
FIR No. 1769/05
PS - Sultanpuri U/s. 411 of IPC Date of Decision: 15/12/2011 Date of order on Sentence: 15/12/2011 15/12/2011 Order on Sentence Present: Ld APP for State Convict Sonia in person with counsel SC. No. 27/1 59/55 :60: Ld Defence counsel submits that convict Sonia is aged about 34 years. She is married having one child of five years and is in custody since 27/11/2005. She is not a previous convict nor habitual offender. She was house wife. Ld defence counsel has further contended that she has been convicted under section 411 of IPC only and considering the period of custody and value of the case property i.e. mobile phone at the most of Rs.34 thousands, she be released on already undergone custody period. Ld defence counsel has further contended that since convict is in custody for a quite long time, hence she is unable to pay any fine, so she be released on already undergone imprisonment.
On the other hand, ld APP has contended that the mobile phone was belonging to deceased Radhy Shyam, who was murdered, hence appropriate sentence be awarded.
Offence u/s 411 of IPC is punishable with imprisonment for a term of either description which may extend to 3 years or with fine or with both.
Considering the age and antecedents and character of the convict alongwith the submissions of Ld defence counsel, sentence of three years SI is imposed on her.
Benefit of section 428 of Cr. PC be given to the convict .
SC. No. 27/1 60/55
:61: Convict remained in the custody from 27/11/05 till today.
She be remanded to serve the sentence.
Announced in Open Court on dated 15/12/2011 ( Virender Kr. Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC. No. 27/1 61/55