Indian Kanoon - Search engine for Indian Law

Delhi District Court

Sc No. 33/07, Fir No. 235/2001 1 State vs Vijay Pal Etc. on 3 June, 2008

SC No. 33/07, FIR No. 235/2001                  1                           State Vs Vijay Pal etc.




                    IN THE COURT OF SH. VINDO KUMAR
                  ADDITIONAL SESSIONS JUDGE, NEW DELHI

SC No. 33/07
FIR No. 235/2001
PS Vasant Vihar
U/s 302/120B/201/34 IPC
State Vs   (1) Vijay Pal
                S/o Gopi Chand
                R/o Anand Bhawan Goda
                Mohalla Village Aaya Nagar,
                New Delhi.
           (2) Vinod Kumar
                S/o Late Babu Lal
                R/o F­221, Maidan Garhi,
                Jatav Mohalla, New Delhi.
           (3) Vinod Kumar
                S/o Raghubir Singh
                R/o 121/1, Sector­I, CPWD
                Pushp Vihar, New Delhi

Date of institution : 17.11.2001
Date of arguments : 12.3.2008 to 23.5.2008
Date of judgement : 3.6.2008

JUDGEMENT

1. Prosecution case in brief is that accused Vijay Pal was married to Ms Rajni (the deceased) on 20.2.2001 and Vijay Pal was SC No. 33/07, FIR No. 235/2001 2 State Vs Vijay Pal etc. not satisfied with this match because she was having a few persistent ailments. It is alleged that accused Vijay Pal wanted to get rid of his wife and on 1.4.2001 he took Rajni in an old worn out car for a ride and deliberately caused an accident due to which Ms Rajni received many fractures but he himself received very minor and superficial injuries. It is alleged that Ms Rajni was admitted to Kalyani Hospital, Gurgaon. She told her parents on the next date of the accident that accused was driving the said car on the wrong side and he used to bend his head below the steering wheel of the car while driving the same and it appeared to her that accused Vijay Pal wanted to kill her and caused that accident deliberately. Prosecution alleges that despite such a serious accident accused Vijay Pal did not register any criminal case and this fact shows that Vijay Pal had done all this in order to get rid of his wife.

2. On 13.8.2001 at about 8:20 pm accused Vijay Pal came SC No. 33/07, FIR No. 235/2001 3 State Vs Vijay Pal etc. to the house of Nepal Singh (PW2) the father of deceased and father in law of accused Vijay Pal in a Honda City Car No. DL3CS­ 2356. During that period Ms Rajni was residing with her parents and therefore accused Vijay Pal had come to take her. It is alleged that the parents of Ms Rajni had advised him earlier also to come at appropriate time and not to travel late in night. But still on 13.8.2001, accused Vijay Pal came to the house of Nepal Singh in quite late and deliberately delayed his departure. At about 8:34 pm or 8:35 pm accused Vijay Pal received a call on his mobile telephone no. 9810062488 and he conversed with the caller in a hushed tone. The only words, the parents of the deceased could hear were "PAUNA PAUNA" (Pauna means a quarter). Thereafter accused Vijay Pal went outside and himself made a call from his mobile phone. Accused Vijay Pal took food at about 10:30 pm and left the home of PW2 and PW28 i.e. the father and mother of the deceased taking Ms Rajni in the Honda City Car No. DL3CS­2356. SC No. 33/07, FIR No. 235/2001 4 State Vs Vijay Pal etc. It is alleged that when Ms Rajni had left with the accused, she was wearing a Mangalsutra, gold necklace, gold chain, two gold rings, four gold bangles, ear rings, nose pin and Bicchuwas etc. She also kept some articles in her purse. It is alleged that Rahul Khari (PW4) the brother of Ms Rajni took a photograph Ex.PW4/A of accused Vijay Pal and Rajni in which Rajni is seen wearing the above stated jewellery and accused Vijay Pal is seen wearing a Titan wrist watch in his hand and is also having a mobile phone. This photograph was taken in the house of PW2 before accused Vijay Pal and Ms Rajni left the said house on 13.8.2001 in the Honda City car. PW2 Nepal Singh had asked accused Vijay Pal to give them a telephone call about their well being while on the way as well as after reaching his home. But parents of Ms Rajni did not receive any call. They also tried to contact the accused on his mobile phone but it was found not connectable.

It is further alleged that when Rahul Khari (PW4) the brother of SC No. 33/07, FIR No. 235/2001 5 State Vs Vijay Pal etc. Rajni went out of his house to see off his sister and accused Vijaypal, a call was received by accused Vijaypal on his mobile phone and accused Vijay Pal spoke to the caller "Vinod mein ponay ghantay mein aa raha hun samaan taiyaar hai na aaj yeh kaam pura karna hai." (Vinod I would be reaching within minutes is the things ready today the job is to be completed).

3. On the intervening night of 13 and 14.8.2001, Ct. Bhagwan Dass (PW16) was on patrolling duty in Block No.78 of PS Vasant Vihar. He saw a car in which Ms Rajni was sitting on left side of the driver seat and there were two wounds upon her head and chest. On the back seat accused Vijay Pal was lying and the door of left side of the car was open. He called accused Vijay Pal but he kept silent. Therefore PW16 went to the nearby taxi stand and informed PS Vasant Vihar telephonically and returned to the spot.

4. The information of the incident was recorded as DD No.4A SC No. 33/07, FIR No. 235/2001 6 State Vs Vijay Pal etc. Ex.PW13/A and consequently SI J. K. Bhardwaj (PW18) reached there. He found that Ct. Bhagwan Dass (PW16) was present there. In the meantime Inspector Inder Singh (PW29) the SHO PS Vasant Vihar also reached there. Ct. Bhagwan Dass informed them that the injured persons have been removed to hospital by PCR van. Therefore PW29 and PW18 reached the Safdarjung Hospital and found that Ms Rajni was admitted in the hospital and was declared brought dead. They also came to know that accused Vijay Pal was admitted in the hospital and was found unfit for statement. The SHO (PW29) recorded his endorsement Ex.PW29/A on DD No.4A and got the FIR registered. They again went to the spot and inspected the car. Apart from many other things they found that one live cartridge was lying near hand brake and the glass of front left side window was having a crack. The live cartridge and other things were seized vide various seizure memos. The Honda City car was also seized vide seizure memo Ex.PW18/T. The key of the SC No. 33/07, FIR No. 235/2001 7 State Vs Vijay Pal etc. car was not available in the car, therefore the car was given in the custody of SI Dalip(PW20) who brought the same to the police station with the help of recovery van.

5. The dead body of Ms Rajni was got identified by Nepal Singh i.e. her father and Rahul Khari the brother. On 16.8.2001, accused Vijay Pal was discharged from the hospital. He was interrogated by Inspector Inder Singh, who recorded his statement under Section 161 CrPC which is Ex.PW29/G. In this statement, accused Vijay Pal stated that when after taking Rajni in the car, he reached near Sangam Cinema and Sector­I, R. K. Puram, one boy having a bag, who was standing Ber Sarai stand, asked for a lift. He stopped his car. The said boy told him that he wanted to go to Mahipal Pur. He told him that he was also going that side and gave him a lift. After travelling for half kilo meter, that boy pointed a revolver upon Rajni and shot at her. Thereafter that boy told Vijay Pal to drive the car as per his instructions. SC No. 33/07, FIR No. 235/2001 8 State Vs Vijay Pal etc. Accordingly Vijay Pal followed his instructions. At about 800/900 near a jungle, two more persons were seen and that boy made Vijay Pal to stop the vehicle. One of those men took the Vijay Pal on the back seat and another started driving the vehicle. Thereafter they took away one watch, chain and purse and took out the jewellery of his wife, Mangalsutra, ring and also took out Rs.10,000/­, which were kept in desk of the car and put the same in polythene. One of them stated that bullet has fallen. Thereafter they asked Vijay Pal to cover up his face, shot a bullet on his leg. He became unconscious. Later on he found himself in the hospital where he came to know that his wife has died.

6. In view of this statement police added Section 397 IPC in the FIR. PW29 Inspector Inder Singh collected the phone number of accused Vijay Pal. The call records Ex.PW6/B and C of his mobile phone no. 9810062488 were collected from Airtel office SC No. 33/07, FIR No. 235/2001 9 State Vs Vijay Pal etc. Okhla. The parents of the deceased were called in the police station on 17.8.2001 and their statements Ex.PW8/A (of Smt. Kamlesh PW28) and Ex.PW2/A of Nepal Singh (PW2) were recorded by SDM.

7. On 18.8.2001 at about 12 noon accused Vijay Pal was called in the police station. Inspector Inder Singh, the Investigating Officer (PW29) interrogated him. During investigation he disclosed about his involvement in commission of this case. Accused was arrested in this case. Disclosure statement of accused Vijay Pal Ex.PW10/A was recorded. In his disclosure he disclosed that he has committed murder of his wife Rajni with his associates namely one Vinod S/o Babu lal and one other Vinod. He also disclosed that he can get recovered the articles which were taken away from the body of Rajni from the possession of his co accused Vinod.He also disclosed that he gave his mobile phone, purse and watch to Vinod s/o Babu Lal. He disclosed that he can get recovered the key of car SC No. 33/07, FIR No. 235/2001 10 State Vs Vijay Pal etc. from near the spot. He also disclosed that he had contacted accused Vinod S/o Babu Lal R/o Village Maidaan Garhi and he demanded Rs.2 lacs from accused Vijay Pal for this job. Accused Vijay Pal also disclosed that he was having conversation on his mobile phone no. 9810204654 with accused Vinod S/o Babu Lal. Accused Vinod S/o Babu Lal was having mobile no. 9810439006. Accused Vijaypal disclosed that he had directed accused Vinod S/o Babu Lal to cause firearm injury to him also so that it appears a case of robbery. This disclosure statement Ex.PW10/A was recorded. Accused Vijaypal led to the police party to the place of incident and had identified the place. Accused got the key Ex.PW18/7 of the car recovered from near the wall in the jungle near Hill Way apartment near the spot.

The key was converted in sealed punalda and sealed with seal of ISD and seized vide memo Ex.PW18/F. Accused Vijay Pal had pointed out the place where he had SC No. 33/07, FIR No. 235/2001 11 State Vs Vijay Pal etc. given lift to co accused Vinod S/o Babu Lal and he had also pointed out the place where Rajni was shot dead by Vijay Pal and Vinod S/o Babu Lal.

Accused Vijay Pal led the police party to the house of accused Vinod S/o Babu Lal at village Maidan Garhi. Accused Vinod S/o Babu Lal was found there. He was apprehended and interrogated. He disclosed about his involvement in this case as well as the involvement of the another accused Vinod S/o Raghubir. Thereafter accused Vinod S/o Babu Lal was arrested in this case. He was thoroughly interrogated and his disclosure statement was reduced in writing vide memo Ex.PW18/G. When accused Vinod S/o Babu Lal was apprehended, he was wearing a wrist watch and gold chain. Accused disclosed that he had received this wrist watch from accused Vijay Pal. He also disclosed that the chain worn by him was got released from the mortgage from the amount of Rs.10,000/­ which was given by Vijay SC No. 33/07, FIR No. 235/2001 12 State Vs Vijay Pal etc. Pal as advance for commission of this offence.

He also disclosed that he can get recovered two bangles (Churian) and one ring of Rajni which he had taken from the body of deceased Rajni.

He further disclosed that he can get recovered the broken mobile phone and Sim (of Vijay Pal) and country made pistol which was used in commission of offence.

Wrist watch and chain were seized separately in two pulanda and sealed with seal ISD and seized vide memo Ex.PW18/K. Thereafter he got recovered two bangles/Churian and one ring from his room situated at first floor from the lowest slab of almirah. Two bangles and ring were collectively sealed with the seal of ISD and pulanda was seized vide memo Ex.PW18/L. Thereafter he led the police party to Freedom Fighter Colony Neb Sarai. He got recovered broken mobile phone SC No. 33/07, FIR No. 235/2001 13 State Vs Vijay Pal etc. EXPW18/10 from the grass situated near a tree. The same was converted in sealed pulanda and seized vide seizure memo Ex.PW18/M. On 20.8.01 accused Vinod S/o Babu Lal was in police custody remand and during remand he got recovered country made pistol and one live cartridge from the bushes situated near southern side of village near temple. This fire arm was unloaded and it was containing a used cartridge. I.O. had prepared sketch of country made pistol and used cartridge. The sketch is Ex.PW18/N. Country made pistol and used cartridge were converted in sealed pulanda and sealed with the seal of ISD and same were seized vide memo Ex.PW18/F.

8. On 22.10.01 judicial TIP of the case property namely one pair bangles of gold and ring which were recovered from possession of accused Vinod S/o Babu Lal were conducted by Ms. Kamini Lau, Ld. Metropolitan Magistrate. The application for conducting SC No. 33/07, FIR No. 235/2001 14 State Vs Vijay Pal etc. judicial TIP is Ex.PW24/C and the TIP proceedings are Ex.PW24/A. As per these proceedings PW2 Nepal Singh correctly identified the articles as the same which were worn by Rajni.

On 23.10.01 Investigating Officer had collected medical record from Kalyani Hospital Gurgaon and police record from PS Sadar, Gurgaon.

On 20.12.01 exhibits of this case were got sent to FSL Malviya Nagar. The ballistic expert report is Ex.PW29/X­1. FLS report is Ex.PW29/X­2. As per this report the firearm and used cartridge did not match with the bullet lead recovered from the body of deceased and with the bullet recovered from the car.

On 23.10.01 Draftsman inspected the place of incident and took rough notes and prepared scaled site plan Ex.PW19/A.

9. Efforts were made to apprehend Accused Vinod S/o Raghbir but he was found untraceable. His non bailable warrants were collected and proceedings U/s 82/83 CrPC were initiated. SC No. 33/07, FIR No. 235/2001 15 State Vs Vijay Pal etc. Inspector Inder Singh (PW29) completed the investigation against accused Vijay Pal and Vinod S/o Babu Lal and filed the charge sheet before Ld. Metropolitan Magistrate.

10. On 3.10.2002 Inspector Rajender Sharma (PW31) was posted as SHO PS Vasant Vihar.

Accused Vinod S/o Raghbir Singh, who was declared proclaimed offender in this case, was arrested by the police officials of PS Malviya Nagar in another case. Officials of PS Malviya Nagar informed SHO PS Vasant Vihar about his arrest.

On 3.10.2002 accused Vinod S/o Raghbir was produced before Sh. V. K. Goyal, Ld. Metropolitan Magistrate. Inspector Rajender Sharma moved an application before Ld. Metropolitan Magistrate for interrogation, which was allowed. The accused was interrogated. During interrogation, accused made disclosure statement and same was reduced in writing vide disclosure statement Ex.PW18/W. SC No. 33/07, FIR No. 235/2001 16 State Vs Vijay Pal etc. On the basis of the disclosure statement, Inspector Rajender Sharma (PW31) moved an application before Ld. Metropolitan Magistrate for police custody remand. Five days police custody remand was granted.

During police custody remand, accused Vinod S/o Raghubir was thoroughly interrogated by Inspector Rajender Sharma . In his disclosure statement EXPW31/B, accused disclosed about his involvement in commission of the offence and that he can get recovered one bangle of gold, two Bichhuas, one nose pin of gold from his rented premises no. RZ­225 B Tughlakabad Extension, new Delhi. He also disclosed about one mobile phone, and about a country made pistol and one scooter which was used in commission of crime of this case.

On 7.10.02 accused led the police party to RZ225 B Tughlakabad Extension and from his room, he removed one loose brick from the wall of the room. There was a cavity and from the SC No. 33/07, FIR No. 235/2001 17 State Vs Vijay Pal etc. cavity, he took out one paper containing in polythene. From this paper, he handed over one bangle of gold, two bichhuas and one nose pin to police. These articles were converted in a sealed pulanda and were sealed with the seal of JKV and same were seized vide memo Ex.PW18/X. Scooter No. DL2SD­2910 which was used by the accused to follow the car of accused Vijaypal at the time of commission of offence was also recovered on his information from the house of Vinod S/o Babu lal. This recovery was effected by constable Dharmpal. Constable Dharmpal produced the scooter before Inspector Rajender Sharma and same was seized vide memo Ex.PW18/Y. During interrogation, Inspector Rajender Sharma had recorded the statement of witnesses. Inspector Rajender Sharma also collected the telephone record of mobile phone no. 9810520887 of accused Vinod S/o Raghubir from Bharti Cellular Ltd. The copy of record is Ex.PW6/X. SC No. 33/07, FIR No. 235/2001 18 State Vs Vijay Pal etc. Judicial TIP of this case property was conducted by Ms Pinky, Ld. Metropolitan Magistrate (PW30). In these TIP proceedings, Nepal Singh PW2 correctly identified the jewellery of Rajni.

11. On these accusations charges under Section 302/120B/201/34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial.

12. In order to prove its case prosecution examined as many as 34 witnesses.

PW1 Dr. Arvind Thergoaonkar is the Sr. Gr. CMO Safdarjung Hospital. On the request of the SHO Sh. Inder Singh PS Vasant Vihar, he has conducted postmortem examination on the body of Smt. Rajni.

PW2 Nepal Singh is the father of the deceased Smt. Rajni. PW3 Ct. Nand Kishore has stated that on the night intervening 13/14.8.2001 he took copy of FIR as a special report at SC No. 33/07, FIR No. 235/2001 19 State Vs Vijay Pal etc. around 4:00 am and took it to the residence of Ilaka Magistrate.

PW3 Ajit Singh is the uncle of the deceased Ms Rajni. PW4 Rahul Khari is the brother of deceased Ms Rajni. PW5 Ct. Sinil Kumar is the Duty Officer.

PW6 R. K. Singh is the Nodal Officer, Bharti Cellular Limited, Okhla Phase­I. He collected the record of Cellular Phone No.9810062488 Ex.PW6/B and Ex.PW6/E and call record of mobile phone no. 9810439006 Ex.PW6/C and call record of mobile phone no. 9810204654 Ex.PW6/D. PW7 Bhupender Khari stated that on 17.8.2001 in the evening he had gone to village Aya Nagar to join a Kulla ritual/ceremony. He further stated that he heard accused Vijay Pal saying, "Mujhse badi galti ho gayi hai, tumhari bhabhi ko maine he mara hai apne dost Vinod ke sath mil kar ke. Aap kisi tarah mujhe bacha lo".

PW8 Peter Bara was posted as SDM Sub Division Vasant SC No. 33/07, FIR No. 235/2001 20 State Vs Vijay Pal etc. Vihar on 17.8.2001. He had recorded the statement of Nepal Singh and his wife Kamleh, which are Ex.PW2/A and Ex.PW8/A. PW9 HC Laxmi Chand stated that on the night intervening 13/14.8.2001 he along with constable and driver reached at the spot and saw that a girl was seated on the left front seat of car no. DL3CS­2356. He was also informed that a boy who was lying on the rear seat of the said car was taken by another PCR van.

PW10 Mahi Pal Singh is the the uncle of deceased Ms Rajni.

PW11 Raj Kumar Gupta is the owner of shop of gifts . PW12 Ct. Chandan Singh is the photographer who took photographs of the car.

                 PW13   HC   Shri   Kumar    had   recorded   DD   No.4A

   Ex.PW13/A.  

PW14 Ct. Ashok Kumar took the exhibits of this case to SC No. 33/07, FIR No. 235/2001 21 State Vs Vijay Pal etc. FSL Malviya Nagar.

PW15 Ct. Ramesh Kumar is the formal witness.

PW16 Ct. Bhagwan Das was on patrolling duty on the intervening night of 13/14.8.2001.

PW17 Sh. R. N. Rawat is the Senior Finger Print Expert. PW18 SI J. K. Bhardwaj was on emergency duty on the intervening night of 13/14.8.2001 and he took part in investigation.

PW19 SI Madanpal is the draftsman and he prepared scaled site plan Ex.PW19/A. PW20 SI Dalip Kumar stated that on 14.8.2001 he was posted as SI at PS Vasat Vihar. He called a crane from M/s Balaji Crane Service and got the Honda City Car lifted from the spot and the same was brought to PS Vasant Vihar with the help of the crane.

PW21 Ct. Abdul Rasheed was on emergency duty from SC No. 33/07, FIR No. 235/2001 22 State Vs Vijay Pal etc. 8:00 am to 8:00 pm on the intervening night of 13/14.9.2001.

PW22 HC Ram Kushal is the Duty office. He had received rukka from SI J. K. Bhardwaj through Ct. Abdul Rasheed. On the basis of the same he registered a formal FIR Ex.PW22/A. PW23 Dr. Subhash Khanna is Senior Consultant from Kalyani Hospital, Gurgaon, Haryana. On 1.4.2001 he medical examined patient accused Vijaypal and Ms Rajni (the deceased).

PW24 Dr. Kamini Lau, Ld. ACMM conducted TIP proceedings of the case property on 22.10.2001 in the present case on the basis of application for TIP marked to her by her Link MM Sh. V. K. Goel.

PW25 ASI Narender recorded the statements of injured namely Vijay Pal and his wife Smt. Geetika on 2.4.2001.

PW26 Inderjeet is the shopkeeper and is formal in nature. PW27 Brahm Prakash was on duty in Control Room PHQ as constable on the intervening no of 13/14.8.2001. SC No. 33/07, FIR No. 235/2001 23 State Vs Vijay Pal etc. PW28 Smt. Kamlesh is the mother of deceased Ms Rajni @ Geetika.

PW29 Inspector Inder Singh is the Investigating Officer of the case.

PW30 Ms Pinki Additional District & Sessions Judge conducted he TIP of the case property on 30.11.2002. The proceedings are Ex.PW30/B. PW31 Inspector Rajender Sharma was posted at PS Vasant Vihar as SHO on 3.10.2002. He conducted investigation in respect of accused Vinod S/o Raghubir.

PW32 Dr. Rekha Bharti proved the MLC Ex.PW32/A of Ms Rajni W/o Vijay Pal.

PW33 HC Surender Singh is the formal witness. PW34 Ct. Rajbir Singh was working as Duty constable at Safdarjung Hospital since 2005.

13. In statement under Section 313 CrPC, accused Vijay Pal SC No. 33/07, FIR No. 235/2001 24 State Vs Vijay Pal etc. denied the accusations. He denied having made the statement under Section 161 CrPC Ex.PW29/G to the police. He took the defence as under :

Q79. Do you want to lead evidence in defence and want to say anything else?

A. Yes. I have been falsely implicated in this case. I and all the members of my joint family were in grief because of the death of my wife. She was always loved and respected by all the members including myself. Her cousin sister Sheetal has all along been in the joint family and none of our family member had any mens­rea to commit any offence. I had gone to take my wife in new Honda City car with the intention to bring her to my house with respect. The parents and relatives of my wife are greedy persons. They in oder to extort money had put unreasonable demand and on my refusal this case was falsely cooked up after five days. On 14th August 2001 statements of father in law and brother in law were recorded by the police. They did not make any complaint against me. They made the complaint only when I refused to pay them money.

RO&AC ASJ/22.11.07

14. Accused Vinod S/o Babu Lal and Vinod S/o Raghbir also denied all the accusation.

15. Accused Vinod S/o Raghubir did not lead any evidence in defence. However accused Vinod S/o Babu Lal examined his sister SC No. 33/07, FIR No. 235/2001 25 State Vs Vijay Pal etc. DW1 Lalita. She testified that on 18.8.2001 at about 10:30 am police reached at her house and apprehended his brother Vinod S/o Babu Lal. They started beating him and took him away to PS Vasant Vihar. She also proved the photograph Ex.D1 to Ex.D8 of her house.

16. Accused Vijay Pal examined DW2 Rishi Pal, who testified that Nepal Singh and Rahul Khari demanded Rs.21,30,000/­ from the family members of accused Vijay Pal after the death of Ms Rajni. But the family members of accused Vijay Pal agreed to give Rs.10,00,000/­. On 14.8.2001 the family members of accused Vijay Pal made payment of Rs.10,00,000/­ to Nepal Singh. On 15.8.2001 they again arranged Rs.9,50,000/­ and paid the amount to Nepal Singh. He testified that on 16.8.2001 Nepal Singh demanded further amount which led to a quarrel between the two parties. This led to accused Vijay Pal having been falsely implicated by the police in the present case. DW3 Sheetal is the daughter of SC No. 33/07, FIR No. 235/2001 26 State Vs Vijay Pal etc. maternal uncle of deceased Ms Rajni. She is married to Ved Pal (the son of the uncle of accused Vijay Pal). She testified that Ms Rajni was very happy with her marriage and her in laws treated her with love. She testified on the same lines as DW2. I have perused the testimonies of all these defence witnesses. Whereas DW1 corroborates the prosecution case that they had apprehended accused Vinod S/o Babu Lal from his house, the testimonies of DW2 and DW3 point out the reasons for false implication of the accused.

However the testimonies of DW2 and DW3 are not convincing that the parents of the deceased would falsely implicate the accused Vijay Pal in such a heinous case simply to extract more money. In fact there is nothing on record to corroborate this motive of Nepal Singh. At the most it is a doubt in the mind of DW2 and DW3 which is not supported by any cogent reason or evidence.

17. This case is entirely based upon circumstantial evidence. In 2008 (2) JCC 1080, the Supreme Court of India enumerated SC No. 33/07, FIR No. 235/2001 27 State Vs Vijay Pal etc. following principles in such cases.

This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt o the accused.

(iii) the circumstances, taken cumulatively, should form a chain, so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Gambhir v.

State of Maharashtra (1982) 2 SCC 351 : (AIR 1982 SC 1157)] Where the case is based upon circumstantial evidence, the law developed in India till date also looks into the defence of the accused and the explanation offered by the accused to a circumstance put to him at the stage of recording his statement under Section 313 CrPC. The falsity of defence and non explanation of circumstance against the accused has its own consequences.

Before dwelling upon the submissions of the parties, I SC No. 33/07, FIR No. 235/2001 28 State Vs Vijay Pal etc. would like to refer to some case law as to how the presumptions would arise and inferences are drawn in a case of circumstantial evidence.

In Swapan Patra v. State of West Bengal, (1999) 9 SCC 242, Supreme Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra vs. Suresh, (2001) 1 SCC 471, where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. Surpreme Court has further held in this case that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and SC No. 33/07, FIR No. 235/2001 29 State Vs Vijay Pal etc. others vs. State of Rajasthan, 2000 (5) (SC) 161.

In Anthony D'Souza vs. State of Karnataka 2003 CRI. L. J. 434, The full Bench of Supreme Court consisting of Hon'ble R. C. Lahoti, Brijesh Kumar and H. K. Sema, JJ. Opined in para 15 as under :

"By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under 313 against the established facts that can be counted as providing a missing link for completing the chain".

18. In views of above principles of law, the present case based on circumstantial evidence should be scrutinized. Ld. Defence Counsels have assailed the prosecution case on various grounds. I take the same one by one.

RECOVERY OF JEWELLERY FROM ACCUSED VINOD S/O BABU LAL AND FROM ACCUSED VINOD S/O RAGHUBIR

19. It is argued by Ld. Defence Counsel that police officials have planted the jewellery upon these accused persons. Ld. Defence SC No. 33/07, FIR No. 235/2001 30 State Vs Vijay Pal etc. Counsel has drawn my attention to the testimony of PW9 Retired Head Constable Laxmi Chand. I reproduce the relevant portion of his cross examination dated 21.5.2004 as under :

"The Doctor after declaring the girl as dead handed over her articles, three gold bangles, one finger ring of gold, one nose pin (Nath) and two chutkis of silver from her feet. All these articles were given to the duty constables of the Safdarjung hospital in unsealed condition."

20. This witness was posted in the PCR Van. He received an information that a lady in unconscious condition was lying in a car no. DL3CS­2356 near CPWD Colony. He along with a constable and driver of the PCR Van reached at the spot and took away the deceased from the car and shifted her to Safdarjung Hospital where the doctor declared her dead. At the time of his examination he brought the original call book register and the photo copies of the relevant entry was exhibited as Ex.PW9/A. I reproduce the relevant portion of the record of this register.

SC No. 33/07, FIR No. 235/2001 31 State Vs Vijay Pal etc. 12.45 L29L1 CALL NOTE KARI KI CPWD COLONY HILL WAY APARTMENT GARI GARI NO. DL3CS­2356 MAIN EK LADKA LADKI........... AAP BHI PAHONCHO Z1Z29 PAHONCHNEY KA SAMAY 3 MINUTE.......... LADKEY KO LAY KAR SAFDARJUNG HOSPITAL GAYEE HEY VA MOKEY PAR KADKI UGLY SEAT PAR DEAD BAITHI HAI ISKO LAY KAR SAFDARJUNG HOSPITAL JA RAHEY HAI MOKEY PAR LP CONSTABLE KO CHHOD KAR HOSPITAL KO RAVANA HOTEY HAI Z1Z29 SAFDARJUNG HOSPITAL MAIN DR. SAHAB NEY DEAD GHOSHIT KAR DIYA HAI. AURAT KA NAAM RAJNI HAI DUTY CT. SUNIL KUMAR NO. 1766/SW KO 3 ADAD SWARN CHURI VA EK RING SWARN VA SWARN EK NAAK KEE NATH VA PAIRON KEE DO CHUTKI CHANDI KEE DUTY CT.

CASUALTY KEY HAWALEY KEE GAYEE JO L.I. KO BHI BATAYA GAYAA VA L. P. The translation in English of this portion is as under :

(The name of the lady is Rajni and she has been declared dead by the doctor in Safdarjung Hospital. Three bangles gold, one ring gold, one nose pin gold and two chutkis of silver were handed over to the duty constable casualty)

21. Ld. Defence Counsel has drawn my attention that as per prosecution case these very articles mentioned in the call register Ex.PW9/A have been recovered from the possession of the accused SC No. 33/07, FIR No. 235/2001 32 State Vs Vijay Pal etc. persons. It is argued by Ld. Defence Counsels that it clearly proves that police has planted these articles upon accused persons later on.

As per prosecution case two gold bangles and one lady's ring gold were recovered at the instance of accused Vinod S/o Babu Lal from his house and one bangle of gold, two bichhuas and one nose pin was recovered at the instance of accused Vinod S/o Babu Lal from his house.

22. Ld. Defence Counsel argues that the recovered articles exactly match the description of the jewellery mentioned in the call register Ex.PW9/A. On the other hand Ld. Additional Public Prosecutor has assailed the testimony of PW9 on the grounds that this witness has created false record and he has explained the reasons in his further cross examination by Ld. APP when he was called by this court under Section 311 CrPC. Ld. APP has drawn my attention to the statement of PW9 dated 2.11.2007 wherein he has testified as under :

SC No. 33/07, FIR No. 235/2001 33 State Vs Vijay Pal etc. My statement was not recorded by the IO. I had not see any jewellery on the body of Rajni at the time when I had taken her to the hospital. The doctor had not handed over me the jewellery articles namely three gold bangles, one finger ring of gold, one nose pin, two chutki of silver from her feet. When I was present in the hospital, three persons were standing near accused Vijaypal. Later on they came out and told me that these articles of jewellery namely three gold bangles, one finger ring of gold, one nose pin and two chutki of silver from the feet of Rajni were on the dead body of Rajni and the same were with doctor and duty constable. This fact was told to me by those persons on my asking as to whether anything was recovered from the dead body. I had not seen the jewellery on the dead body or in possession of doctor or duty constable Sunil with my own eyes. On being so informed by those persons, I made an entry in the Call Book in my own handwriting.

23. Ld. Additional Public Prosecutor has assailed the call book record on the ground that the accused Vijay Pal is a person of manipulative traits. Ld. Additional Public Prosecutor has drawn my attention to the judicial record in which accused Vijay Pal tried to get bail on the basis of fabricated medical certificate. It is further argued by Ld. Additional Public Prosecutor that this was a well planned murder and the accused Vijay Pal has taken care of the details to such SC No. 33/07, FIR No. 235/2001 34 State Vs Vijay Pal etc. an extent as to where the murder is to be committed and as to where the car is to be parked. Ld. APP argues that he has also managed to get a particular entry in call book register. Ld. APP has drawn my attention to the testimony of Ct. Rajbir (PW34). This witness brought the register maintained by the duty constables. At present he was working as duty constable in Safdarjung Hospital. He testified that the duty constables posted in the hospital maintain a register of medico legal cases. I reproduce the relevant portion of his testimony as under :

PW34 Constable Rajbir 1403 SW, PS Sarojini Nagar ....................................................................... At this stage attention of the witness is drawn to the original register, photocopy of which is Expw9/B. The MLC No. of Vijay S/o Gopichand is 129304, time of admission is 1.45 am, MLC no. of Rajni is 129303, time of admission 1.40 am. Rajni was brought by HC Lakhmi Chand No. 137 PCR Zebra 29. As per record, three gold bangles, one gold ring, one nose pin and pair of chutki are not mentioned in the entry. There is no signature of any doctor for any purpose. It is correct that there is no signature of any IO regarding receipt of any articles through this register.

SC No. 33/07, FIR No. 235/2001 35 State Vs Vijay Pal etc.

24. Ld. APP argues that every public servant is presumed to have acted in accordance with law and rules. The register maintained by the duty constable does not show that the duty constable had received the gold bangles etc. from HC Lakhmi Chand (PW9). Ld. APP argues that from the relevant entry in the call register there can be two possibilities. First the doctor gave the articles to the duty constable or PW9 himself gave these articles to the duty constable. The normal course was that PW9 should have taken the signatures of duty constable on the call register endorsing the receipt of the articles by such duty officer (Ct. Sunil Kumar in the present case). PW34 has specifically testified in his examination in chief that "in case there is any recovery of valuable articles, money, key or any other thing, we make entries in the entry register and we obtain signature of doctor and the PCR official in our register and thereafter we hand over the articles to the IO of the particular case and we also SC No. 33/07, FIR No. 235/2001 36 State Vs Vijay Pal etc. obtain his signature about the receipt of valuable articles".

25. PW34 brought the register for the period from 13.7.2001 to 20.8.2001. Ld. Additional Public Prosecutor has drawn my attention that there were various entries where recovery articles were recovered by the duty constable and at Ex.PW34/A, B, C and D the signatures of PCR officials, doctor and the receiving person/IO were available on record. Ld. APP has drawn my attention to the testimony of PW5 Ct. Sunil Kumar, No. 1766SW. At the relevant time he was the duty constable in the Safdarjung Hospital but he does not testify anywhere that HC Lakhmi Chand (PW9) had handed over the above mentioned jewellery to him in the hospital. No cross examination was done by the Defence Counsels and no suggestion was put to PW5 Ct. Sunil Kumar that PW9 HC Lakhmi Chand had handed over to him any jewellery on the dead body of Ms Rajni the deceased.

SC No. 33/07, FIR No. 235/2001 37 State Vs Vijay Pal etc.

26. Ld. Additional Public Prosecutor argues that it was such a planned conspiracy that the accused Vijay Pal had already thought of the possibility of their arrest and the situations arising thereafter. It is further argued that accused persons were so thorough in the conspiracy that accused Vinod S/o Babu Lal gets a fire arm recovered with which murder had not taken place. Accused Vinod S/o Babu Lal and accused Vinod S/o Raghubir only get those jewellery of the deceased recovered regarding which accused Vijay Pal had already manipulated an entry in the call register.

27. Ld. APP has further drawn my attention to the testimony of PW16 Ct. Bhagwan Dass, who has testified in cross examination by Sh. J. R. Priyani, adv. for accused Vijay Pal that "the injured woman was not wearing any ornaments". PW16 Ct. Bhagwan Dass is the first person to see the said car, deceased and accused Vijay Pal after the offence.

SC No. 33/07, FIR No. 235/2001 38 State Vs Vijay Pal etc.

28. Ld. APP argues that all these circumstances are further corroborated by the false defence of the accused Vijay Pal taken from the very beginning that at the time of offence, his wife Rajni was not wearing any jewellery. Ld. APP has drawn my attention to the cross examination by Ld. Counsel for accused Vijay Pal of PW2 Nepal Singh dated 10.3.2004 which is reproduced as under :

"It is wrong that two bangles and a ring which my daughter had on her person on the night of incident were got taken off when she was leaving our house with the accused in the night or that I subsequently handed over these bangles and ring to the police. During investigation to fabricate a false incriminating evidence".

29. Ld. APP has drawn my attention to a similar suggestion given to PW4 Rahul Khari, the brother of the deceased, by Ld. Counsel for accused Vijay Pal. I reproduce the same as under :

"it is wrong that my sister Rajni when leaving our house on the night of incident had not taken gold jewellery items on her person and rather those articles like bangles, mangal sutra etc. were got taken off by us as a caution as she was to travel in the night to a far of place.

SC No. 33/07, FIR No. 235/2001 39 State Vs Vijay Pal etc.

30. Ld. APP argues that the accused Vijay Pal himself has forsaken this defence later on and this false defence is a circumstance against him. It is argued by Ld. APP that how the murder was committed is only in the knowledge of Vijay Pal. Therefore he must be knowing as to whether his wife was wearing the jewellery or not and which of the jewellery has been stolen by the robbers. Ld. APP has drawn my attention to the testimonies of PW18 SI J. K. Bhardwaj, PW20 SI Dalip Kumar to whom no suggestion was given that they had taken the jewellery in question from duty constable. No suggestion has been given to PW29 Inspector Inder Singh that he had received these jewellery from Ct. Sunil and thereafter planted upon the accused persons.

31. Ld. APP has also drawn my attention to the statement of accused Vijay Pal under Section 313 CrPC which is reproduced as under :

SC No. 33/07, FIR No. 235/2001 40 State Vs Vijay Pal etc. Q.16 It is in evidenced against you that on 16.8.01 you were discharged from the hospital and were interrogated and your statement U/S 161 CrPC Expw29/G was recorded and in this statement you had stated to the police that when you were going with your wife in Honda City car, one boy asked for lift and you obliged him. Thereafter he shot at your wife Rajni and thereafter asked you to drive your car where ever he wanted. You stated that after travelling 800­900 metres near a jungle on the road, two more men were seen and the person holding pistol got your car stopped. Thereafter they snatched the watch, chain and purse from you and also took away the jewellery, Mangalsutra, finger ring of your wife Ms Rajni ( the deceased) and also took out Rs 10,000/­ from the desk of the car. You also stated that they also shot you on your leg. In view of this statement Section 397 IPC was added. What you have to say?

A It is incorrect. I was discharged from the hospital on 16.8.01. Prior to that I had told the facts of this incident to the police but the same were not recorded by the police. Statement Expw29/G is a fabricated statement. It does not bear my signatures and is not fully correct.

However, I had told the police that two persons had entered my car when it was stopped at red light and put Revolver on my head and also on the head of my wife. They forced me to drive as per their direction and thereafter, they fired at my wife and when I tried to save my wife and I struggled with them, they fired on me also. I became unconscious and regained consciousness in the hospital. I do not know what they had removed/looted.

32. Ld. APP argues that in his explanation accused Vijay Pal deliberately suppresses as to whether any jewellery was stolen and which jewellery was taken away by the robbers. Even if it is SC No. 33/07, FIR No. 235/2001 41 State Vs Vijay Pal etc. presumed that he became unconscious at the spot, he can state as to what jewellery his wife was wearing when they left the house of complainant on the fateful night. Ld. APP further argues that the accused Vijay Pal is abandoning his defence, changing his stance and conceals the material facts which are in his special knowledge. Further his defence is being proved false on every count.

33. The line of arguments and material on record is so strong that it makes the entry in question in document EXPW9/A highly questionable and doubtful but still this document and the entry in question is on record. In fact the entire conduct of PW9 is under a cloud. He has not acted in the manner as an ordinary course of business is executed. He has not taken the signatures from duty constable Sunil regarding the receipt of the jewellery on the entry made by him nor he has signed the register of the duty constable . In his testimony before the court, he has stated that doctor after declaring the girl as dead, handed over her articles, three gold SC No. 33/07, FIR No. 235/2001 42 State Vs Vijay Pal etc. bangles, one finger ring of gold, one nose pin and two chutkies of silver and all these articles were given to duty constable of Safdarjung hospital in unsealed condition. Later on in his cross examination, he states that he has written so at the instance of relatives of accused Vijaypal who were present there. He has admitted that as per practice, the recovery effected from the body of the deceased should be entered in an Admission Discharge Register maintained by the duty constable. The testimony of this witness is neither supported by duty constable Sunil (PW5). In fact, PW16 constable Bhagwan Dass who reached at the spot first of all, has also testified that there was no jewellery on the person of the deceased at that time. As per the defence of the accused, the murder was committed by the robbers. Therefore, it is natural to presume that there should not be any jewellery upon the person of the deceased after the incident. Moreover the PW32 Dr. Rekha Bharti also testifies that as per MLC Ex.PW32/A of Rajni, no valuable or article is SC No. 33/07, FIR No. 235/2001 43 State Vs Vijay Pal etc. mentioned. Therefore, all circumstances favour the contentions of the prosecution.

34. However, despite this overwhelming evidence, this document EXPW9/A glimmers and sometimes glares. The punishment in case of conviction may result in the convicts being hanged or condemned to life imprisonment. Therefore, the approach of the court has to be very cautious. Therefore, I find it appropriate to leave aside the recovery of the gold and silver jewellery from the possession of accused Vinod s/o Babu Lal and accused Vinod S/o Raghbir and thereafter see as to whether the remaining evidence is sufficient to pin down the accused persons.

EXTRA JUDICIAL CONFESSION

35. The prosecution is relying upon the testimony of PW7 Bhupender Khari who has testified that on 17.8.01, he had gone to the house of accused Vijaypal to attend Kulla Ritual which is conducted on the death of a person. He testified that all brotherhood SC No. 33/07, FIR No. 235/2001 44 State Vs Vijay Pal etc. had collected outside the house of Vijaypal and he also joined it. When he was proceeding towards toilet in the house, he saw accused Vijaypal lying on a bed with his back towards him (ie towards PW7 ). He told cousin that '' he has committed a blunder and that he had committed murder of Rajni in complicity with his friend Vinod and that he should save him.'' It is testified by PW7 that thereafter he came back and joined the ceremony.

36. I am of the opinion that extra judicial confession is a valid evidence provided that it inspires confidence. This witness has testified that although there were other family members in the house but in that particular room, only Vijaypal and his cousin were lying.

37. I am of the opinion that if a person would make extra judicial judicial confession in confidence, it is highly unlikely that he would make it in a louder voice, rather the same would be made in such a manner that it is not heard by any person. It is strange when this witness entered the room, the door of the room was open and he SC No. 33/07, FIR No. 235/2001 45 State Vs Vijay Pal etc. could hear the conversation of accused and his cousin. It is also very strange that accused Vijaypal made such extra judicial confession during a very short time when PW7 was passing through that place towards the toilet. In fact, in such a situation, it is not possible that this witness could have heard clearly as to what is being stated by accused Vijaypal to his cousin. Therefore, this extra judicial confession is a very weak type of evidence and it would be safer not to consider this evidence against accused Vijaypal.

RECOVERY OF THE WATCH OF ACCUSED VIJAY PAL FROM THE POSSESSION OF ACCUSED VINOD S/O BABU LAL

38. One of the circumstance alleged by the prosecution is recovery of watch of accused Vijay Pal from the possession of accused Vinod S/o Babu Lal. PW18, PW20 and PW29 Inspector Inder Singh have testified that when they apprehended the accused Vinod S/o Babu Lal, he was wearing the watch of Titan make. Ld. APP has drawn my attention that this watch is appearing in the photograph SC No. 33/07, FIR No. 235/2001 46 State Vs Vijay Pal etc. Ex.PW4/A of accused Vijay Pal. I am of the opinion that watches of the same make and model are frequently available in the market and it cannot be definitely said that the watch which is shown to having been worn by the accused Vijay Pal in the photograph is the same which was recovered from the wrist of accused Vinod S/o Babu Lal. Although PW8 has identified this wrist watch as belonging to accused Vijay Pal, at the same time possibility of mistake by her in identifying the wrist watch is very high. It does not appear in evidence anywhere that PW28 was quite familiar with this watch by its continuous use and observation. She does not state as to whether this watch was having any particular mark due to which she was able to identify it. Therefore using this piece of evidence against the accused would be a dangerous proposition. Accordingly I am not inclined to take in account this piece of evidence against accused persons. RECOVERY OF FIRE ARM

39. It is admitted case of prosecution that the recovered pistol does SC No. 33/07, FIR No. 235/2001 47 State Vs Vijay Pal etc. not match with the bullet recovered from the dead body of the deceased. Ld. APP however argues that there is enough evidence to prove that a country made pistol with a fired cartridge in its barrel and one live cartridge were recovered at the instance of Vinod S/o Babu Lal and the same were recovered vide recovery memo Ex.PW18/P. It is argued by Ld. APP that accused Vinod S/o Babu Lal deserves conviction at least under Section 25 of Arms Act. In the present case as per judicial record no charge under Section 25 Arms Act was framed against accused Vinod S/o Babu Lal. Therefore I am not inclined to place conviction of accused Vinod S/o Babu Lal under Section 25 Arms Act.

MOTIVE

40. Sh. J. R. Priyani, adv. Ld. Defence Counsel argues that prosecution has miserably failed in proving the motive of accused Vijay Pal in commission of the offence. It is argued that as per prosecution case itself accused Vijay Pal and his family behaved with SC No. 33/07, FIR No. 235/2001 48 State Vs Vijay Pal etc. Smt. Rajni the deceased in a nice manner. So far as the question of illness of Smt. Rajni is concerned, the facts about it had already been disclosed by the parents of Rajni to accused Vijay Pal and her parents. Ld. Defence Counsel argues that accused Vijay Pal and her parents agreed to marry Rajni fully knowing the health problems of Ms Rajni. Therefore it cannot be said that accused Vijay Pal wanted to get rid of Rajni on account of her illness. Ld. Defence Counsel has referred to 1998(1) JCC (SC) 101 in his support. I reproduce para 10 of this judgement, which is as under :

In the light of the aforesaid acts, if the case of the prosecution with reference to the motive for the accused to commit the offence is considered, there will be little difficulty in rejecting the same.

No doubt, proof of motive is not necessary to sustain a conviction but when the prosecution puts forward a specific case as to motive for the crime, the evidence regarding the same has got to be considered in order to judge the SC No. 33/07, FIR No. 235/2001 49 State Vs Vijay Pal etc. probabilities. It is well settled that motive for a crime is a satisfactory circumstance of corroboration when there is convincing evidence to prove the guilt of an accused person but it cannot fill up a lacuna in the evidence.

41. Therefore this paragraph sums up the entire law developed till date on the point of "motive". It lays down following principles.

(a) Lack of roof of motive need not result the acquittal of an accused if the offence is otherwise proved beyond reasonable doubt.

(b) Proof of motive is only a corroborative piece of evidence which forms a satisfactory circumstance in proof of the crime.

(c) The proof of motive cannot be used to fill up a lacuna in the prosecution.

42. Now coming to the present case, it is correct that accused Vijay Pal married Rajni fully knowing about her ill health. The marriages in India are not individual affair of a boy and girl of marriageable age. In fact normally it is the decision of the parents SC No. 33/07, FIR No. 235/2001 50 State Vs Vijay Pal etc. and relatives for whom the financial and social status of the family of prospective bride and bridegroom are very important. Sometimes this financial and social status of the family of bride or bridegroom overweigh the other considerations for example the physical beauty of the girl or the boy, their education qualification, their health and sometimes even their character. The present case is also of an arranged marriage between two well to do families. Ld. APP argues that it appears that the other considerations were so weighty that the illness of Rajni was taken lightly by accused Vijay Pal but later on accused Vijay Pal felt that Rajni had become a burden upon him. Ld. APP has drawn my attention to the testimony of PW2 who has testified in examination in chief dated 16.7.2003 that his daughter Rajni told them that accused Vijay Pal used to tell her "you are having so many diseases and that he wanted to marry some other girl." PW2 has also testified that Rajni told him that accused Vijay Pal even said to her "TU MERE GALEY PAR GAYEE". In other words accused Vijay SC No. 33/07, FIR No. 235/2001 51 State Vs Vijay Pal etc. Pal repented to marry Rajni who was having so many diseases and felt that she had become a burden upon him.

43. I am of the opinion that the motive of the murder is sufficiently visible in the testimonies of PW2 and PW28, who are the parents of the deceased. But even if it is presumed that the motive is not proved by the prosecution, still it would not demolish the prosecution case.

RECOVERY OF KEY

44. As per prosecution case, accused Vijaypal got the key of his car recovered. Ld defence counsels have strongly assailed this piece of evidence on the ground that there is no evidence that the key of the car were not in the car when the same was detected by the police on the road. Even the first rukka prepared by Investigating Officer does not mention that key of the car was not there. Rukka also does not mention that the car was towed away to the police station. Investigating Officer has nowhere shown any bill of the SC No. 33/07, FIR No. 235/2001 52 State Vs Vijay Pal etc. vehicle used in towing the said car. No entry in malkhana register or in any other register has been proved to show that the car of the accused was brought after being towed away. It is argued that non availability of the key in the car was a very important fact and this was also not noticed even by the Crime Team.

45. On the other hand Ld APP argues that Rukka EXPW29/A does not specify that the car was directed to be taken to the police station. However, at the time of preparing recovery memo EXPW18/T of this Honda City Car, the SHO inspector Inder Singh has noted that on inspection of this car, it was found to be fitted with a sterio and the amplifier. This shows that Investigating Officer has not found any key in it and this is the reason he had not specifically mentioned the key, although he has mentioned the sterio and amplifier in it. The recovery memo of the key EXPW18/7 bears the signature of Vijaypal and he does not state as to under what circumstances, he put signatures on this memo. In statement U/S 313 SC No. 33/07, FIR No. 235/2001 53 State Vs Vijay Pal etc. CrPC, this evidence was put to accused in question No. 8 and he has testified that key of the car was available in the car and false evidence has been fabricated. He stated that car was not taken to police station by any Recovery Van.

46. I have considered the rival submissions. PW12 constable Chandan Singh is the photographer of the Crime Team. He took nine photographs from different angles of the car from inside and outside. However, no suggestion has been put to this witness that the key of the car were available in the car itself. PW16 constable Bhagwan Dass is the first police official who reached at the spot. In cross examination, he has specifically testified that car was towed away by a crane. PW 17 R.N. Rawat, senior Finger Print Expert reached at the spot and saw the Honda City Car. He testified that he had also examined the Dash Board and seats of the car and same were found blood stained. No question was put to him regarding the keys of the car. PW18 SI JK Bhardwaj has testified that accused got recovered SC No. 33/07, FIR No. 235/2001 54 State Vs Vijay Pal etc. the keys of the car from a park nearby the spot where car was found and same was seized vide memo EXPW18/F.

47. Police officials including Investigating Officer testified that there was no key in the car. In this regard testimony of PW20 SI Dalip is very material. He testified that on 14.8.2001, he was called by SHO Vasant Vihar at the place of occurrence. When he reached there, he saw a Honda City Car No DL3CS­2356. SHO directed him to look for the key of the said car or any weapon used in the commission of the crime. He also directed him to deposit the Honda City Car in the malkhana. He testified that no key of the said car could be traced or recovered. Therefore, he called Crane from M/S Balaji Crane Services and got the car lifted from the spot and same was brought to police station Kapashera. In presence of this witness, the keys of this car were recovered from the park near the place where the car was found. This witness was cross examined at length. It is this witness who searched the car from inside and he SC No. 33/07, FIR No. 235/2001 55 State Vs Vijay Pal etc. neither found any weapon nor the key in it. It is pertinent to note that the recovery memo of the Car EXPW18/T specifically mentions the sterio and amplifier in it but same does not mention the presence of key in it. Ld defence counsel has argued that that the sterio of key was fabricated later on. Otherwise this fact must have been mentioned in the rukka.

48. I disagree with submissions of Ld Defence counsel. The testimony of PW20 SI Dalip is very truthful in this regard. He has given the name of the company from where the crane was called. He is very emphatic about this fact. In fact, PW16 constable Bhagwan Dass who is the first witness to see this car also testified in the cross examination that the key of the car was not in it.

49. In these circumstances, I am of the opinion that prosecution has proved beyond reasonable doubt that the key was not available in the car and the same was recovered at the instance of accused Vijaypal whose signatures are available on the recovery SC No. 33/07, FIR No. 235/2001 56 State Vs Vijay Pal etc. memo of the key.

50. Sh L.K Verma, advocate has raised a question that Investigating Officer did not check as to whether the keys recovered by the police at the instance of accused Vijaypal actually matched the car or not. It is argued that there is no evidence that Investigating Officer tried to start the car with the said keys.

51. I am of the opinion that when the accused Vijaypal is giving a suggestion that these keys were available in the car since the beginning, the only inference that can be drawn is that key in question belonged to Honda City Car and it cannot be doubted that the keys recovered at the instance of accused Vijaypal are that of Honda City car in which the offence was committed. RECOVERY OF MOBILE PHONE AT THE INSTANCE OF ACCUSED VINOD S/O BABU LAL.

52. Inspector Inder Singh (PW29) testified that on 18.8.2001, at about 12 noon, accused Vijaypal was called in the police station. SC No. 33/07, FIR No. 235/2001 57 State Vs Vijay Pal etc. During investigation accused disclosed his involvement in the offence and his disclosure statement EXPW10/A was recorded. In this disclosure statement accused Vijay Pal disclosed that he had committed the murder of his wife with his associates namely Vinod S/o Babu Lal and one another Vinod.

53. Thereafter accused Vijaypal led the Investigating Officer to the place where he had given lift to the co accused Vinod S/o Babu Lal. Vijaypal also pointed out the place where Rajni was shot dead by them.

54. Accused Vijaypal led the police party to the house of accused Vinod S/o Babu Lal where this accused was apprehended and interrogated. The disclosure statement EXPW18/G of accused Vinod S/o Babu Lal was recorded in which he disclosed that '' he can get recovered the broken mobile phone and SIM (of Vijaypal)''. Pursuant to this disclosure, accused Vinod S/o Babu Lal led police party to Freedom Fighter Colony Nebsarai and got recovered the SC No. 33/07, FIR No. 235/2001 58 State Vs Vijay Pal etc. broken mobile phone from the grass situated near a tree and the same was converted in sealed pulanda vide seizure memo EXPW18/M. The broken mobile phone is EXPW18/10.

55. Ld APP has drawn my attention to the testimony of PW4 Rahul Khari who testified that on 13.8.01 at 8.15 pm accused Vijaypal came to take Rajni from their house. At that time he was carrying a mobile phone No. 9811162488. Ld APP has drawn my attention to the photograph EXPW4/A which was taken by him shortly before accused and Rajni left their house. In this photograph, a mobile phone is clearly visible in the hand of the accused. Ld APP has drawn my attention to the mobile phone record EXPW6/B proved by PW6 R.K Singh, the Nodal Officer Bharti Cellular Ltd. As per this record, the IMEI No. of this phone is 449127881838410.

56. Ld APP has drawn my attention to EXPW6/D which shows that this mobile phone with the same IMEI number is being used for talking to one person (accused Vinod S/o Babu Lal as per SC No. 33/07, FIR No. 235/2001 59 State Vs Vijay Pal etc. prosecution case) but this mobile phone number is changed to 9810204654. This shows that same mobile phone with two different sim card numbers is being used by one person. Ld APP has also drawn my attention that from this mobile equipment, there are continuous talks on both the mobile phone numbers and calls are being received and calls are being made to one mobile phone no. 9810439006. Ld APP argues that the evidence on record show that this mobile phone IMEI No 449127881838410 was with with accused Vijaypal when he left with Rajni and later on this mobile phone was recovered at the instance of accused Vinod S/o Babu Lal. Ld APP argues that the recovery memo EXPW18/M shows that the mobile phone recovered at the instance of accused Vinod S/o Babu Lal is having the same mobile IMEI number. Ld APP argues that it is clear that accused Vijaypal and accused Vinod S/o Babu Lal were in conspiracy in commission of the present offence. This evidence is strongly assailed by Ld defence counsel on two grounds. First, no SC No. 33/07, FIR No. 235/2001 60 State Vs Vijay Pal etc. public witness was joined by the Investigating Officer in effecting the said recovery and second the IMEI number appearing on the print out and IMEI number available in the mobile phone are different.

57. I have myself seen the mobile phone, and the IMEI number in it has been written as 449127881838411. So far as non joining of public witness is concerned, I am of the opinion that these days, it is very hard to find a public witness as the public is not willing to become witness against a criminal because the same entails lot of hardship to them.

58. Moreover, if the testimonies of the police officials is worthy of credence, the recovery has to be believed even if no public witness has been joined by the Investigating Officer. It has been argued by Ld APP that investigation in the present case lot of negligence has been shown by the police in investigating the case. But if the Investigating Officer had been negligent, the prosecution case cannot be thrown away.

SC No. 33/07, FIR No. 235/2001 61 State Vs Vijay Pal etc.

59. I have considered the submissions and I am of the opinion that there is nothing to disbelieve the recovery of the mobile phone in question at the instance of accused Vinod S/o Babu Lal.

60. Now, this court is to see as to whether the IMEI Number available in the mobile phone Ex.PW18/10 and the IMEI number appearing in the print outs EXPW6/B to EXPW6/D against the phone no. 9811162488 and 9810204654 are the same number or the different numbers.

61. It is argued by Ld APP as well as Sh M.K. Sharma, Ld counsel for complainant that IMEI number consists of 14 digits and the 15th digit is a superfluous number. It is argued that if first fourteen digits tally, it means that the mobile phone is the same whereas Ld counsel for accused argued that how the 15th number can be superfluous number. It is also argued by Ld. Defence Counsels that the IMEI number appearing on the print out and the IMEI number written in the mobile phone Ex.PW18/10 are different SC No. 33/07, FIR No. 235/2001 62 State Vs Vijay Pal etc. because the 15th digit appearing in the mobile phone is "1" whereas the 15th digit appearing in the print out is "0". However there is no dispute that first 14 digits of the IMEI number written in mobile phone tally with the first 14 digits in the print outs.

62. I have heard the rival contentions and I do not find any substance in the submissions of Ld defence counsel. As per Section 57 of Indian Evidence Act 1872, ''In all matters of public history, literature, Science or art, the court may resort for its aid in appropriate books or documents of reference''.

63. I therefore deem it appropriate to refer to A Word Definition From the Webopedia Computer Dictionary. The word IMEI is a short form of International Mobile Equipment Identity and these are connected to a GSM Network and are stored in a data base known as EIR (Equipment Identity Register). This register contains valid phone equipments. This computer dictionary explains that IMEI number consists of four groups that looks like this nnnnnn­ ­nn­ SC No. 33/07, FIR No. 235/2001 63 State Vs Vijay Pal etc. nnnnnn­n. It is explained in this dictionary that first set of number is a type approval code (TAC). The second digits represents country code and rests make up the final assembly code. The second group of numbers identifies the manufacturers. The third set is serial number and the last single digit is an additional number (usually 0).

64. I also refer to Wikipedia, the free encyclopedia available on the inter net. It defines IMEI as under :

"The IMEI (International Mobile Equipment Identity) is a unique 15 or 17 digit code used to identify an individual mobile station to a GSM or UMTS network. The IMEI number facilitates an important function; it easily identifies a mobile phone being used on a GSM (Global System for Mobile Communications) network."

This encyclopedia has given the structure of IMEI as under :

"The IMEI (14 digits plus check digit) or IMEISV (16 digits) includes information on the origin, model, and serial number of the device. The structure of the IMEI/SV are specified in 3GPP TS 23.003. The model and origin comprise the initial 8­digit portion of the IMEI/SV, known as the Type Allocation Code (TAC). The remainder of the IMEI is manufacturer­defined, with a Luhn check digit at the end (which is never transmitted)."

The purpose of this check digit is also been given in detail. I SC No. 33/07, FIR No. 235/2001 64 State Vs Vijay Pal etc. reproduce the relevant portion of it as under :

"Computation of the Check Digit The last number of the IMEI is a check digit calculated using the Luhn algorithm. According to the IMEI Allocation and Approval Guidelines.

The Check Digit is calculated according to Luhn formula (ISO/IEC 7812). See GSM 02.16 / 3GPP 22.016. The Check Digit shall not be transmitted to the network. The Check Digit is a function of all other digits in the IMEI. The Software Version Number (SVN) of a mobile is not included in the calculation. The purpose of the Check Digit is to help guard against the possibility of incorrect entries to the CEIR and EIR equipment. The presentation of Check Digit (CD) both electronically and in printed form on the label and packaging is very important. Logistics (using bar­code reader) and EIR/CEIR administration cannot use the CD unless it is printed outside of the packaging, and on the ME IMEI/Type Accreditation label. The check digit shall always be transmitted to the network as "0".

65. I am placing on record the relevant literature for purpose of reference. I take judicial notice of this scientific and technical knowhow which is enough to conclude that IMEI number is actually of 14 digits and the 15th digit is only a check digit. It is always reflected in the print out as 0 although actually check digit might be a different one. Therefore the real IMEI number consists of first 14 SC No. 33/07, FIR No. 235/2001 65 State Vs Vijay Pal etc. digits and if the first 14 digits tally with the IMEI number appearing in the call register, this means that it is the same mobile phone.

66. The same question arose before Supreme Court in State (NCT of Delhi) Vs Navjot Sandhu 2005 Crl. L. J. 3950 (popularly known as Parliament attack case). At page 4026, the Supreme Court dealt with this question as under:

"One more point has to be clarified. In the seizure memo (EX61/4), the IMEI no. of Nokia phone found in the truck was noted as ....52432. That means the last digit '2' varies from the call records wherein it was noted as ....

52430. Thus there is seeming discrepancy as far as the last digit is concerned. This discrepancy stands explained by the evidence of PW78­ a computer engineer working as Manager, Siemens. He 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.'...."

SC No. 33/07, FIR No. 235/2001 66 State Vs Vijay Pal etc.

67. Therefore I hold that prosecution has proved beyond reasonable doubt that mobile phone which was being used with mobile phone no. 9810062488 was recovered at instance of accused Vinod S/o Babu Lal. PW2 Nepal Singh, PW28 Smt. Kamlesh (both the parents of the deceased), PW4 Rahul Khari the brother of the deceased and PW10 Mahipal Singh all have testified that accused Vijay Pal was having a mobile phone with him when he took Rajni from their house. All these witnesses have also testified that accused Vijay Pal had conversation on mobile phone no. 9810062488. PW6 R. K. Singh the Nodal Officer Bharti Cellular Ltd., Okhla Phase­I has testified that phone no. 9810062488 was operational on regular billing basis and was in the name of Vijay Kumar, Anand Bhawan, Aya Nagar. Although there is some difference in the name which might be due to some clerical mistake but the address Anand Bhawan, Aya Nagar is that of accused Vijay Pal. All these circumstances proved SC No. 33/07, FIR No. 235/2001 67 State Vs Vijay Pal etc. beyond reasonable doubt that this phone belongs to accused Vijay Pal.

I have already mentioned that PW4 Rahul Khari had taken a photograph Ex.PW4/A. I have called the case property in court room at the time of final arguments and compared the mobile phone Ex.PW8/10 with the photograph Ex.PW4/A. The mobile phone was broken but still on comparing the broken mobile phone and mobile phone appearing in Ex.PW4/A in the hand of accused Vijay Pal, it cannot be said that both the mobile phones are different.

68. Ld. Defence Counsels have strongly assailed this photographs and have argued that it was not taken on the said date. I disagree with Ld. Defence Counsels. The parents and the brother of the deceased have specifically testified that they had taken the photograph just before Vijay Pal left their house with Rajni. It is pertinent to note that in this photograph Rajni is wearing pink dress and pink glass bangles. A pink dress and pink glass bangles were noted by the Dr. Arvind Thergaonkar (PW1) in the postmortem report SC No. 33/07, FIR No. 235/2001 68 State Vs Vijay Pal etc. Ex.PW1/A on the person of the deceased and this corroborates the evidence of PW2, PW4 and PW28 that the photograph in question was taken on the date of incident shortly before accused and Rajni left the house of complainant.

69. Therefore it stands proved beyond reasonable doubt that the mobile phone in question was in possession of accused Vijay Pal when he came to the house of complainant on 13.8.2001 and it was in his possession when he left the house of complainant with Rajni.

After the offence, this mobile phone was not in possession of accused Vijay Pald and this phone was recovered at the instance of accused Vinod S/o Babu Lal.

CONVERSATION OF VIJAY PAL

70. PW2 Nepal Singh the father of deceased has testified that on 13.8.01, accused Vijaypal came to his house at about 11.30 pm. (There appears to be some clerical mistake here because all other witnesses namely PW4, PW10 and PW28 have testified that he SC No. 33/07, FIR No. 235/2001 69 State Vs Vijay Pal etc. reached at about 8 or 8.30 pm. Even PW2 later on refers to a conversation of accused Vijay Pal at about 8.34/35 pm). PW2 testifies that accused received a call on his mobile phone no. 9810062488 at about 8.34 or 8.35 pm. He conversed in a very low voice. At 10.30 pm when he prepared to leave his house, then he again received a telephone call on his mobile phone. PW4, PW10 and PW28 have also testified that accused was using the mobile phone to make a call and to receive the call. This fact is corroborated from the print out EXPW6/B which shows the calls from this phone started from 11.24 am till 18.23 pm. As per print out EXPW6/D, a different SIM ie 9810204654 is shown to having been used on the mobile IMEI number 449127881838410 from 15.32.07 hours. It means that the same mobile was using two different SIM cards having number 9810062488 and 9810204654 because this mobile equipment has been used with number 9810062488 from 11.24.16 hours till 18.23.26 hours on 13.8.2001 as per the print out Ex.PW6/B whereas SC No. 33/07, FIR No. 235/2001 70 State Vs Vijay Pal etc. the same mobile equipment has been used with mobile No. 9810204654 from 15.32.07 hours till 23.24.23 hours on 13.8.2001 as reflected from the print out Ex.PW6/D. Testimonies of the relatives of the deceased show that during this period this mobile equipment was with accused Vijay Pal. The mobile phone record EXPW6/D shows that from 20.34.56 hours to 23.24.23 hours, there are six incoming calls and one outgoing call on this mobile. The timings of the same tally with the timings as testified by the parents and brother of the deceased. PW2 has testified that when accused received a call at 8.34 or 8.35 pm ( ie 20.34 hours) accused Vijaypal talked in a low voice but he could hear the word '' Pauna Pauna''. It is argued by Ld APP that this is the indication of time given by the accused Vijaypal to accused Vinod S/o Babu Lal. Thereafter accused went outside and himself made a call from his mobile phone. Thereafter, when at 10.30 pm he finally prepared to leave the house, he again received telephonic call on his mobile. All this evidence tallies with the call SC No. 33/07, FIR No. 235/2001 71 State Vs Vijay Pal etc. details EXPW6/D. The prosecution alleges that accused Vijaypal was conversing with Vinod S/o Babu Lal. The reference of "Vinod" in conversation of Vijay Pal on his mobile Ex.PW18/10 as testified by PW4 Rahul Khari, disclosure of Vijay Pal wherein he disclosed the name of Vinod S/o Babu Lal with whom he had conversed and to whom he had given the said mobile phone after murder of Rajni and thereafter the conduct of Vijay Pal leading the police to the house of Vinod S/o Babu Lal and pointing him out (admissible under Section 8 of Indian Evidence Act) and the recovery of this mobile phone at the instance of accused Vinod S/o Babu Lal establishes link of accused Vinod s/o Babu Lal in commission of the present offence and leaves me in no doubt that both these accused persons are involved in commission of murder of Ms Rajni.

PREVIOUS ATTEMPT TO KILL RAJNI

71. Prosecution has alleged that on 1.4.2001, accused Vijaypal took Rajni for outing but he did not disclose to the parents of Rajni as SC No. 33/07, FIR No. 235/2001 72 State Vs Vijay Pal etc. to where she was being taken. At about 6.30 or 7 pm on that day, someone informed the parents of Rajni that she had met with an accident. PW28 Kamlesh alongwith her son went to Kalyani hospital Gurgaon where Rajni was stated to have been admitted. PW2 Nepal Singh also reached the hospital and they found that Rajni was seriously injured having about eight fractures while Vijaypal was having very minor injuries. Both of them were found admitted in Kalyani hospital.

72. Ld APP has drawn my attention to the testimony of PW2, PW4 and PW28 in this regard. It is alleged that Rajni told that accused Vijaypal had taken the car on wrong side and whenever any truck or vehicle used to pass, accused Vijaypal used to bow under the steering and was acting in abnormal way. When one truck came from the front side, Vijaypal hit the said truck from the side where Rajni was sitting. On next day, Rajni told that it appeared that Vijaypal wanted to kill her. Ld APP has drawn my attention to the SC No. 33/07, FIR No. 235/2001 73 State Vs Vijay Pal etc. testimony of PW23 Dr. Subhash Khanna Senior Consultant, Kalyani Hospital, who testified that he treated accused Vijaypal and Rajni with the history of road traffic accident in front of Haldiram factory at Delhi Jaipur Highway. Rajni was having fracture of clevical, fracture of ribs, fracture humerus and fracture lower end radius.

She was advised operation for fracture humerus and she was having grievous injuries. He proved the hospital record EXPW23/A. Ld APP has drawn my attention to the testimony of PW25 ASI Narender who was posted as Head Constable at police post Khirki Daula, police station Sadar Gurgaon on 1.4.2001. He received an information of accident on the intervening night of 1­2/4/2001 and consequently he reached Kalyani hospital to record the statement of injured. He testified that injured were travelling in car no. DL­9C­5544 at the time of accident. In the said accident the car was badly damaged and both the injured received injuries. He testified that on the basis of statement of injured,he received a DD no. 15 dt. 2.4.2001 PP Khirki SC No. 33/07, FIR No. 235/2001 74 State Vs Vijay Pal etc. Daula, Gurgaon but injured Vijaypal requested that he did not want any action.

73. In statement U/S 313 CrPC this circumstance was put to the accused at question no. 62 and 63. Although he admitted this accident and also admitted that he did not lodge any FIR, however he does not explain the reasons for not pressing any police action.

Even during arguments no explanation has been given that if the wife of accused Vijaypal was so seriously injured and the car in which they were travelling got quite damaged, why accused Vijay Pal did not press for registration of FIR. I am of the opinion that this conduct is a grave circumstance against the accused which substantiates the prosecution version that this accident was deliberately done with a view to commit murder of Rajni and accused did not lodge FIR lest his role and intentions come to light if the investigations were carried out by the police.

SC No. 33/07, FIR No. 235/2001 75 State Vs Vijay Pal etc. CHAIN OF CIRCUMSTANCES

74. Now I enumerate the circumstances which have been admitted by me as proved beyond reasonable doubt.

(1) On 1.4.2001 accused took Ms Rajni for an outing in an old car not belonging to himself from the house of her parents without disclosing their destination. This car meets with an accident in which the car gets damaged and Rajni received as many as 8 fractures but still accused Vijay Pal does not lodge an FIR regarding this incident.

No explanation has been offered by accused Vijay Pal for this abnormal conduct. This conducted of accused Vijay Pal is a precursor to the events which were to follow. (2) On 13.8.2001 accused Vijay Pal came at the house of Nepal Singh (PW2) the father of deceased at about 8:30 pm to take his wife Ms Rajni in a Honda City Car. At around 8:34 pm accused Vijay Pal received a call on his mobile no. 9810062488 and conversed in that telephone in a very low voice. Accused thereafter went outside the house and made a telephone call from his telephone. (3) PW4 Rahul Khari the brother of deceased has testified that one telephone call was received by the SC No. 33/07, FIR No. 235/2001 76 State Vs Vijay Pal etc. accused at the time when he was outside the house to see off accused Vijay Pal and Ms Rajni. At that time accused stated on the mobile phone "Vinod I would be reaching within 45 minutes. Are the things ready? Today the job is to be completed."

(Vinod mein ponay ghantay mein aa raha hun samaan taiyaar hai na aaj yeh kaam pura karna hai). This statement of Vijay Pal on his mobile phone with Vinod clearly shows that he was conspiring with the co accused Vinod S/o Babu Lal to commit this offence. (4) The print out of the call details Ex.PW6/D corroborates that conversation had taken place on this mobile phone at 8:34 pm and at 10:30 pm. (5) This evidence of conversation and the timings as well as fact that he made call with the mobile phone in question using another sim card with phone no. 9810204654 were put to accused in question no.43, 44, 45 and 46. Accused Vijay Pal denied this allegation. However the telephone record Ex.PW6/B and Ex.PW6/D have proved two things that on 13.8.2001 accused Vijay Pal was using sim card no. 9810062488 upto 18.23.56 SC No. 33/07, FIR No. 235/2001 77 State Vs Vijay Pal etc. hours. He was also using the sim card/mobile phone no. 9810204654 from 15.32.07 till 23.24.23 hours on the same date on the same mobile equipment IMEI No. 44127881838410. The call details Ex.PW6/D tally with the timings of conversations which accused Vijay Pal had on this mobile phone at the house of Nepal Singh (PW2). In cross examination of PW4 accused Vijay has taken a defence that PW4 has taken this mobile phone from him. This defence is patently false because this mobile Ex.PW18/10 having IMEI number was later on recovered from accused Vinod S/o Babu Lal. In fact no reason and no explanation was given by him as to why he had given his mobile phone to PW4. On the other hand he has no explanation as to how this mobile phone was recovered at the instance of accused Vinod S/o Babu Lal.

(6) In his disclosure statement accused Vijya Pal has disclosed that on his mobile phone no. 9810204654 he had a conversation with accused Vinod S/o Babu Lal when Vijay Pal was at the residence of Nepal Singh. This part of the disclosure statement is relevant under Section 27 of Indian Evidence Act because it has led to a discovery SC No. 33/07, FIR No. 235/2001 78 State Vs Vijay Pal etc. of a fact to the police for the first time that accused Vijay Pal was also using this sim card having number 9810204654 apart from a sim having no. 9810062488. It is pertinent to note that this new sim/mobile number was not in knowledge of any other person except accused Vijay Pal. In fact PW2, PW4, PW10 and PW28 have also referred to the phone no. 9810062488 only. In this disclosure statement of accused Vijay Pal two facts have been discovered first time. First use of another sim/mobile no. 9810204654 by accused on the same mobile equipment and second, disclosure of the name of accused Vinod S/o Babu Lal with whom this mobile equipment was available after the commission of the offence. This disclosure is corroborated by the testimony of PW4 Rahul Khari the brother of the deceased that accused was talking to one Vinod. Accused Vijay Pal led the police to the house of accused Vinod S/o Babu Lal and pointed him out. This conduct of accused Vijay Pal is admissible under Section 8 of Indian Evidence Act (AIR 1979 Supreme Court 400) Subsequently this mobile phone was recovered at the instance of the accused Vinod SC No. 33/07, FIR No. 235/2001 79 State Vs Vijay Pal etc. S/o Babu Lal proves beyond reasonable doubt about the conspiracy of accused Vinod S/o Babu Lal and accused Vijay Pal to commit the offence. It is pertinent to note that pointing out a person and place is held to be admissible in Navjot Sandhu case (supra) by Supreme Court in its judgement (reference to page 4029 of 2005 Crl. L. J. 3950) wherein Supreme Court held that conduct of accused taking the police to a person from whom he had purchased the weapon and pointing him out is admissible under Section 8 as conduct of the accused. (7) I have already held that the defence of the accused Vijay Pal that mobile phone was not in his possession and that he did not have any conversation on this mobile equipment stands falsified. Falsity of the defence of accused Vijay Pal also fills the missing link in chain of circumstances as to what accused Vijay Pal was conspiring on his mobile phone with accused Vinod S/o Babu Lal and what he meant when he asked Vinod that the things should be ready and the job should be finished that very day. The non explanation of accused Vijay Pal as to what he meant by this conversation is again an additional SC No. 33/07, FIR No. 235/2001 80 State Vs Vijay Pal etc. reason to infer that he was referring to the contract of killing of his wife.

(8) The most substantial circumstance against accused Vijay Pal is that as per postmortem report Ex.PW1/A two bullets were shot upon Ms Rajni. The first injury in the postmortem report shows the fire arm entry wound on right front to the parietal region of the skull and exit wound was present on the left temporal region. The second fire arm entry wound was seen on the chest in the center of oval shape. PW1 has testified that injury on the chest was caused in a contact range as no tattooing was seen. This doctor also observed that no tattooing on the entry would of the head and therefore it is clear that both fire arm injuries have been caused from a contact range. In answer to question no. 16 the accused Vijay Pal has stated that two persons had entered the car and they put revolver on his head and on the head of his wife. They forced him to drive as per their direction and thereafter "they fired at his wife." This explanation does not answer as to how Ms Rajni who was sitting on the front seat of the car received injury in the center of her chest. If SC No. 33/07, FIR No. 235/2001 81 State Vs Vijay Pal etc. the robbers fired while sitting at the back of the car the entry wound would never be in the front side i.e. middle of the chest of Ms Rajni. It is pertinent to note that how the incident happened is in special knowledge of accused Vijay Pal. It is for him to offer an explanation as to how Ms Rajni received bullet injury in the center of her chest, which could not have been received by her if assailants had fired at her while sitting on the back seat of the car. I refer to State of Rajasthan V. Kashi Ram AIR 2007 Supreme Court 144. It was a case in which a husband was accused for committing murder of his wife and the question of burden of prove arose regarding the facts which were within the special knowledge of the accused. Supreme Court observed as under :

"24. There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. "This circumstance, therefore, provides the missing link in the chain of circumstances which prove SC No. 33/07, FIR No. 235/2001 82 State Vs Vijay Pal etc. his guilt beyond reasonable doubt."

In the present case also the accused has failed to explain how Ms Rajni received bullet entry wound in the center of her chest. This failure rather concealment of the true facts is a very strong circumstance against accused Vijay Pal and also fills up the missing link in the chain of circumstances.

(9) Accused Vijay Pal has taken the defence that it was a case where robbers entered the car and killed his wife Ms Rajni. In answer to question no. 16 he states that he does not know what they (robbers) removed/looted. Vijay Pal is the only person who can tell as to what jewellery and the articles belonging to his wife and belonging to himself were looted by such assailants. His statement that he had become unconscious is falsify from the fact that he received very minor injury in his thigh. As per his MLC Ex.PW32/B, he was conscious and oriented when he arrived at the hospital at 1:45 am.

(10) When PW16 Ct. Bhagwan Dass reached at the spot, Ms Rajni was on the front seat whereas accused was lying on the back seat of the car. Accused does not explain in SC No. 33/07, FIR No. 235/2001 83 State Vs Vijay Pal etc. his statement under Section 313 CrPC that if he was driving the car, how he came to lie on the back seat. This is a corroboration to the prosecution case that in fact accused Vijay Pal was instrumental in commission of this offence.

(11) In the present case accused Vijay Pal has received an injury on his thigh which is proved by PW32 Dr. Rekha Bharti. This is a gun shot wound seen on interior wall of left thigh around 1.5 cm diameter. No exit wound seen. This injury should be seen in the light of the answer given by the accused Vijay Pal question 16. He stated that when he tried to save his wife and he struggled with them (the assailants) they also fired at him. As per this explanation both the intruders were having fire arms. If accused Vijay Pal who was sitting on the driver seat struggled with those assailants, how he would receive a gun shot wound on the interior wall of the left thigh. If a person is sitting on the driver seat or even if he turns back and fights with the assailants, the gun shot injury, if any, caused due to the firing by those assailants would not be received in the anterior back of the left thigh of accused SC No. 33/07, FIR No. 235/2001 84 State Vs Vijay Pal etc. Vijay Pal. How accused Vijay Pal received this injury is only in his special knowledge. I have already stated that it is not possible to receive such injury because if the accused Vijay Pal is sitting on the driver seat, the anterior aspect of the thigh would be concealed in the driver seat. If Vijay Pal fought with the aggressors, accused Vijay Pal would have turned back towards his left side only and again it is not possible to receive any injury on the interior aspect of his left thigh as it would be totally concealed. It is not possible to fight the aggressors sitting in the back seat of the car by taking a right turn because the space in the car on right side of the driver seat could not have allowed enough room to accused Vijay Pal to take on the assailants. It is not the case of Vijay Pal that he came out of the car and thereafter fought with the assailants by entering the back seat of the car. In fact it could not have been possible for him because as per his own defence the intruders were having fire arms in their hands and had stuck the same on his heads. Therefore I fully agree with Ld. Public Prosecutor that injury on the anterior aspect of the thigh of accused Vijay Pal was deliberately inflicted by SC No. 33/07, FIR No. 235/2001 85 State Vs Vijay Pal etc. his co accused persons as part of their conspiracy to show it a case of robbery cum murder and this evidence was created with a view to show innocence of accused Vijay Pal.

(12) If a bullet has been shot at Vijay Pal in the car, its bullet head should have either been found in the left thigh of the accused Vijay Pal, or it should have been found in the car itself. Neither the bullet was found in his body nor in the car. This is a strong evidence to prove the complicity of accused Vijay Pal in commission of murder of Ms Rajni. It is pertinent to note that accused Vijay Pal does not state that he received bullet injury outside the car.

(13) The burden to explain this injury was upon accused Vijay Pal himself by virtue of Section 106 of Indian Evidence Act. His failure to give a plausible reason as to how he received bullet injury on the interior aspect of the thigh further corroborates the prosecution case. (14) In his answer to question 16 he states that when the car stopped at the red light they put the revolver on his head and on the head of his wife and forced him SC No. 33/07, FIR No. 235/2001 86 State Vs Vijay Pal etc. to drive as per their direction and thereafter they fired at his wife. This explanation is also not believable. He does not states that his wife struggled with those intruders. Why they killed his wife and spared him is a strong circumstance against accused Vijay Pal. Accused Vijay Pal has not given any explanation to this evidence and this is an additional corroborative evidence which is inconsistent with the innocence of accused Vijay Pal. (15) Accused Vinod S/o Babu Lal denies that the mobile phone was recovered at his instance. This denial is false and I have already held that prosecution has proved beyond doubt that mobile phone of accused Vijay Pal was recovered at the instance of accused Vinod S/o Babu Lal. Accused Vinod S/o Babu Lal has offered no explanation as to how this mobile phone was found at his instance. In statement under Section 313 CrPC this evidence was put to him in question 29. His answer is that of a simple denial. Since his explanation is false, it is an additional reason to believe that he was conspirator in commission of the murder of Ms Rajni. This false answer of accused Vinod S/o Babu Lal also fills up a missing link against him SC No. 33/07, FIR No. 235/2001 87 State Vs Vijay Pal etc. and proves that he was involved in the commission of this offence.

(16) One circumstance against accused Vinod S/o Babu Lal is that accused Vijay Pal stated on his mobile phone in presence of PW4 Rahul Khari "Vinod mein ponay ghantay mein aa raha hun samaan taiyaar hai na aaj yeh kaam pura karna hai." This statement of Vijay Pal is admissible under Section 10 of Indian Evidence Act not only against accused Vijay Pal as well as against accused Vinod S/o Babu Lal.

(17) In his disclosure Ex.PW10/A accused Vijay Pal disclosed the name and parentage of accused Vinod S/o Babu Lal as the person with whom he was talking and also disclosed that he had given his mobile phone to Vinod S/o Babu Lal at the time of the offence.

(18) Thereafter accused Vijay Pal led the police to the house of accused Vinod S/o Babu Lal and pointed him out. Thereafter accused Vinod S/o Babu Lal made a disclosure statement Ex.PW18/G. In this disclosure accused Vinod S/o Babu Lal disclosed that he can get the mobile phone recovered. Pursuant to this disclosure accused Vinod S/o SC No. 33/07, FIR No. 235/2001 88 State Vs Vijay Pal etc. Babu Lal got recovered the mobile phone Ex.PW18/10 belonging to accused Vijay Pal. Therefore a complete chain of circumstance stands proved against both accused Vijay Pal and Vinod S/o Babu Lal.

WHETHER THERE IS ANY MISSING LINK IN THE CHAIN OF CIRCUMSTANCES

75. Once the chain of proved circumstances has been enumerated, the next exercise is to find out as to whether there is any missing link in the chain of circumstances. It is true that neither any person has seen accused Vijay Pal and Vinod S/o Babu Lal committing murder of Rajni. It is also true that no finger print of accused Vinod S/o Babu Lal was found on or inside the car. It is also true that weapon recovered at the instance of accused Vinod S/o Babu Lal does not match the bullet lead recovered from the person of deceased. But still there are circumstances which prove beyond doubt that accused Vinod S/o Babu Lal was very much present in the car when the offence took place. PW2, PW4, PW10 and PW28 have consistently SC No. 33/07, FIR No. 235/2001 89 State Vs Vijay Pal etc. testified that the mobile phone in question was in possession of accused Vijay Pal when he left their house along with Ms Rajni. From this point of time till commission of the offence, the mobile phone remained in possession of accused Vijay Pal. This mobile phone was later on recovered by police at the instance of accused Vinod S/o Babu Lal. Accused Vinod S/o Babu Lal has nowhere explained as to how he came to know that this mobile phone was lying in the park far away from the place where the car of accused Vijay Pal was found. It is not the case of accused Vijay Pal that he went out of his car after the offence and threw away his mobile phone somewhere else. It is clear that Vijay Pal remained in the car throughout till his detection by the police. Therefore the one and only conclusion that can be drawn from these facts is that accused Vinod S/o Babu Lal was also present in the car at the time of offence and had taken away the mobile phone of accused Vijay Pal.

76. It is pertinent to note that accused Vijay Pal while talking SC No. 33/07, FIR No. 235/2001 90 State Vs Vijay Pal etc. on this mobile phone in presence of PW4 Rahul Khari referred to caller as Vinod. In his disclosure statement he disclosed the name of this caller as Vinod S/o Babu Lal. This part of disclosure admissible under Section 27 of Indian Evidence Act coupled with the subsequent conduct admissible under Section 8 of Indian Evidence Act of accused Vijay Pal by taking the police party and pointing out accused Vinod S/o Babu Lal at his residence and thereafter recovery of the same mobile phone at his instance leaves no missing link in the chain of circumstances and all these circumstances lead to a irresistible conclusion inconsistent with the innocence of the accused and consistent with their guilt.

77. This chain of evidence clearly proves the presence of accused Vinod S/o Babu Lal in the car at the time of offence and therefore the simple denial of accused Vinod S/o Babu Lal of all the facts of the case and false defences and non explanation of material circumstances by accused Vijay Pal further fortify the prosecution case SC No. 33/07, FIR No. 235/2001 91 State Vs Vijay Pal etc. that Ms Rajni was murdered by none other person than her husband Vijay Pal and Vinod S/o Babu Lal and in order to escape detection, accused Vijay Pal fabricated a false story that his wife was murdered by some robbers.

ROLE OF ACCUSED VINOD S/O RAGHUBIR

78. Ld. APP argues that accused Vinod S/o Raghubir was in constant touch with Vinod S/o Babu Lal during the period when the offence in question was committed. However Ld. APP fairly admits that there is no evidence on record to show that the mobile numbers appearing on the print out belong to accused Vinod S/o Raghubir. Therefore the evidence on record and the print outs do not connect accused Vinod S/o Raghubir with the crime. Although the prosecution has pressed the recovery of jewellery of the deceased from the possession of accused Vinod S/o Raghubir, however I am not inclined to admit this evidence in view of the reasons already discussed above. Apart from this there is no evidence against accused SC No. 33/07, FIR No. 235/2001 92 State Vs Vijay Pal etc. Vinod S/o Raghubir. I therefore give benefit of doubt to accused Vinod S/o Raghubir and acquit him.

79. However the circumstantial evidence against accused Vijay Pal and accused Vinod S/o Babu Lal have proved the prosecution case to the hilt and therefore I convict both of them under Section 302/120B IPC for having conspired to kill Ms Rajni and committing her murder.

Announced in the open court on 3.6.2008.

(VINOD KUMAR) Additional Sessions Judge Patiala House Courts New Delhi SC No. 33/07, FIR No. 235/2001 93 State Vs Vijay Pal etc. IN THE COURT OF SH. VINDO KUMAR ADDITIONAL SESSIONS JUDGE, NEW DELHI SC No. 33/07 FIR No. 235/2001 PS Vasant Vihar U/s 302/120B/201/34 IPC State Vs (1) Vijay Pal S/o Gopi Chand R/o Anand Bhawan Goda Mohalla Village Aaya Nagar, New Delhi.

(2) Vinod Kumar S/o Late Babu Lal R/o F­221, Maidan Garhi, Jatav Mohalla, New Delhi.

ORDER ON SENTENCE

4.6.2008
Present:         Ld. APP for the state.
                 Complainant with Cl. Sh. M. K. Sharma, adv.

Convict Vijay Pal from J.C. with Cl. Sh. J. R. Priyani, adv. Convict Vinod S/o Babu Lal from J.C. with Cl. Sh. L. K. Verma, adv.

Arguments on sentence heard.

Ld. APP and Ld. Counsel for complainant have argued that convict Vijay Pal had committed breach of trust in killing his wife, who was totally dependent upon him. It is further argued that first SC No. 33/07, FIR No. 235/2001 94 State Vs Vijay Pal etc. he tried to kill his wife by causing an accident and when he failed in this attempt, he arranged a hired killer namely Vinod S/o Babu Lal, who was running a "mobile buchar house" and used to kill human being on contract. Ld. APP has drawn my attention to the fact that involvement of convict Vinod S/o Babu Lal is clearly visible in the custody papers and convict Vinod S/o Babu Lal is a habitual criminal. Ld. APP has mentioned following circumstances to show that the case falls under the category of rarest of rare cases. The circumstances have enumerated as under :

1. Convict Vijay Pal hired a killer namely Vinod S/o Babu Lal to commit murder of his wife.

2. Convict Vijay Pal and contract killer Vinod S/o Babu Lal committed the murder of Ms Rajni in cold blood and in premeditated way.

3. Ms Rajni, the deceased, was already a lady having many diseases and Ms Rajni was in domination of convict Vijay Pal.

It is argued by Ld. APP that there would be a failure of justice in case death sentence is not awarded because the case fell within the rarest of rare cases. Both the parties have referred to Machi Singh Vs State of Punjab 1984 (2) RCR 412 SC in their support.

Sh. M. K. Sharma, adv. for complainant has argued that in this judgement it is held that when the collective conscience of the community is so shocked that it will expect the holders of judicial power center to inflict death penalty, in such cases death sentence can be awarded. Ld. Counsel argues that in this judgement it was held that the community may entertain such sentiments in following circumstances :

1. When the murder is committed in a extremely, brutal, grotesque, SC No. 33/07, FIR No. 235/2001 95 State Vs Vijay Pal etc. diabolical, revolting or dastardly manner so as to arouse sentence and indignation of the community.

2. When the murder is committed in a motive which evinces total depravity and meanness e.g. murder by hired assassination for money or reward or cold blooded murder for gains of a person vis­ a­vis whom the murder is in a dominating position or in position of trust.

3. When the victim of murder is an innocent child or is a helpless woman.

It is argued by Ld. Counsel for complainant and Ld. APP that in the present case murder of Ms Rajni was committed in an extreme brutal manner by first firing at her head and, as if it was not enough, the convicts shot in her chest. It is further argued that in the present case also it was a murder by hired assassination i.e. convict Vinod S/o Babu Lal and it was also a cold blooded murder of Ms Rajni vis­a­vis whom convict Vijay Pal was in dominating position and was in a position of trust.

Ld. APP and Sh. M. K. Sharma, adv. for complainant argued that Ms Rajni was a helpless woman and at the time of her murder, she was totally dependent upon her husband i.e. convict Vijay Pal.

Ld. APP and Sh. M. K. Sharma, adv. for complainant have drawn my attention to (1980) 2 Supreme Court cases 684 in which the full Bench of Supreme Court enumerated the mitigating factors in para 206. The same are reproduced as under :

206 Dr. Chitale has suggested these mitigating factors :

Mitigating circumstances :­ In the exercise of its discretion in the above cases, the court shall take into account the following SC No. 33/07, FIR No. 235/2001 96 State Vs Vijay Pal etc. circumstances :­ (1)That the offence was committed under the influence of extreme mental or emotional disturbance. (2)The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3)The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4)The probability that the accused can be reformed and rehabilitated.

The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5)That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6)That the accused acted under the duress or domination of another person.

(7)That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. It is argued by Ld. APP and Ld. Counsel for complainant that the convicts in the present case do not fall in any of the above stated categories and therefore it is a fit case for grant of death penalty.

On the other hand Sh. J. R. Priyani, adv. for convict Vijay Pal argued that this is the first offence of the convict and no other criminal antecedents have been stated against him. The offence is not of extremely brutal nature and the victim was not a helpless woman and rather she was able bodied woman.

SC No. 33/07, FIR No. 235/2001 97 State Vs Vijay Pal etc. Sh. L. K. Verma, adv. for convict Vinod S/o Babu Lal argued that convict Vinod S/o Babu Lal during his stay in jail has become a very good painter and has won many awards. It is argued that there are chances of his reformation and of his proving an asset to the society. It is further argued that the convict is the sole bread winner of his wife and one minor child and old aged mother.

I have considered all the circumstances. In Machi Singh Vs State of Punjab the Supreme Court has held that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances should be accorded full weightage and just balance has to be struck between the aggravating and mitigating circumstances. In the present case the aggravating circumstances have been enumerated by the prosecution whereas the mitigating circumstances have been enumerated by the defence.

But the basic question that has to be answered by the court to its own conscience is as to whether the offence is rarest of rare case. This determination should be based on two questions. In Machi Singh Vs State of Punjab the Supreme Court held that the following questions may be asked and answered as a test to determine rarest of rare cases in which the death sentence can be inflicted :

(a) Is there something uncommon about the crime which render the sentence of imprisonment of life inadequate and calls for death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence if after according maximum weightage to the mitigating circumstances which speak in favour of SC No. 33/07, FIR No. 235/2001 98 State Vs Vijay Pal etc. the offender?

I have given a thought to this two questions and I am of the opinion that although the offnce is brutal but it is not extremely brutal, grotesque, diabolical, revolting or dastardly and therefore it does not render the sentence of imprisonment for life inadequate. Secondly I do not find the circumstances of the present case of such a nature that there is no alternative but to impose death sentence. Although convict Vinod S/o Babu Lal has been termed as a contract killer but no offence or at least involvement of this convict have been shown by the prosecution in any other case of similar type. Although convict Vijay Pal has shown depravity and meanness in committing cold blooded murder of Ms Rajni despite being in position of trust, but at the same time it must be remembered that convict Vijay Pal has not shown exceptional depravity while committing the murder. Therefore the above mentioned two test go in favour of grant of imprisonment for life.

In view of these facts and circumstances, I sentence both the convicts to imprisonment for life and fine in the sum of Rs.1000/­ each under Section 302 IPC. In default of payment of fine both the convicts shall further undergo simple imprisonment for six months.

I further sentence both the convicts to imprisonment for life and a fine in the sum of Rs.1000/­ each under Section 120B IPC and in default of payment of fine both the convicts shall undergo simple imprisonment for six months. Both the sentences shall run concurrently.

Copy of this order be supplied free of cost to the convicts. The sentence warrants be prepared and both the convicts be sent to jail to SC No. 33/07, FIR No. 235/2001 99 State Vs Vijay Pal etc. undergo the sentence. File be consigned to record room. Announced in the open court on 4.6.2008.

(VINOD KUMAR) Additional Sessions Judge Patial House Courts New Delhi