Delhi District Court
Sc No. 57911/16; Fir No.399/13; Ps ... vs . Jai Singh & Ors. Page No. 1 Of 59 on 25 April, 2019
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
SESSIONS CASE No....................57911/16
FIR No. 399/13
PS Shahbad Dairy
U/s: 302/201/392/394/411/34 IPC
State
Versus
1. Jai Singh @ Hari Om
S/o Sh. Subhash,
R/o H. No. D7/13
Shahbad Dairy, Delhi.
2. Ravi Gupta
S/o Sh. Ram Kumar,
R/o H. No. B16,
Deen Dayal, Nandgram, 30 Foota Road,
Ghaziabad, (U.P.)
3. Satish
S/o Sh. Ganeshi Lal
R/o H. No. D28/18,
Shahbad Dairy, Delhi.
Date of institution : 13.01.2014
Judgment reserved on : 04.04.2019
Judgment delivered on: 25.04.2019
ORDER/JUDGMENT: All the accused persons namely Jai Singh @
Hari Om, Ravi Gupta and Satish are acquitted
for the offence(s) u/s 302/201/392/394/411/34
IPC.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 1 of 59
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JUDGMENT
1. Brief facts, as stated in the chargesheet are that on 19.07.2013, DD No. 16A was received to the effect that one dead body has been lying behind St. Michel School in a ganda naala was marked to SI Sandeep. Accordingly, SI Sandeep reached at the said place and found one dead body male aged about 45 years, the hands and mouth of which were tied with black clothes was lying in ganda naala. No eye witness met SI Sandeep at the spot. SI Sandeep also called the crime team and got the said place inspected through the officials of crime team. The identity of the said body could not be established and accordingly the said body was preserved in the mortuary of BSA hospital.
For establishing the identity of the said body, WT message was flashed and details were uploaded on the Zip Net. After establishing the identity of the said body to be of Vijay S/o Vasudev, the postmortem over the said body was conducted on 23.07.2013. After postmortem, the body of Vijay was handed over to his relatives. On 31.07.2013, while Inspector Vijay Kumar was present at PS, complainant Sunil Kumar came to PS and made following statement before Inspector Vijay Kumar which is reproduced as under:
"That I am a plumber by profession and permanent resident of Azamgarh, UP. Vijay S/o Vasudev was my cousin and was a driver by SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 2 of 59 -3- profession and used to drive private car in Delhi and used to remain at my house. The wife and children of Vijay Kumar are residing in his native village. The marriage of the younger brother of Vijay was scheduled to be performed at Village Bisham, District Azamgarh, UP and he alongwith the family of Vijay went to attend the said marriage.
Thereafter, Vijay alongwith them had returned to Delhi on 25.06.2013. Vijay resided with them for about 1213 days and in the meantime Vijay got job of driver at Gurgaon. Vijay used to leave his jhuggi alongwith his Cab at about 6:00 / 7:00 am and sometimes he used to return in between 10:00 / 11:00 pm and sometimes in between 12:00 / 1:00 night.
Since Vijay was inclined to shift his wife and children to Delhi, he took a room on rent nearby their house and started residing in the said room and thereafter Vijay had not visited their house.
On 20.07.2013, the wife of Vijay namely Anita had made a missed call over the mobile of his mother Sita Devi. His mother Sita Devi made a call to Anita and Anita informed her that she had been SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 3 of 59 -4- trying the mobile number of her husband Vijay since 16.07.2013, but his phone was found switched off and she requested Sita Devi for giving any clue about Vijay.
Accordingly, he alongwith his mother went to the tenanted room of Vijay, but his room was found locked. He tried to find out the whereabouts of Vijay from other tenants, but in vain.
On 21.07.2013, they had visited PS Shahbad Dairy for lodging the missing report of Vijay, where they met SI Sandeep, who informed them that on 19.07.2013, one dead body had been recovered. SI Sandeep had also shown the photographs of the said body and they found the features of the body in the said photographs to be similar to that of Vijay.
Thereafter, they went to BSA hospital mortuary, where the dead body was shown to them and they identified the said body to be of Vijay. Thereafter, they returned back to their house and informed to the family members of Vijay.
On 22.07.2013, uncle, brother and other relatives of Vijay came to Delhi and they had also identified the body of Vijay in the said mortuary. He SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 4 of 59 -5- also came to know that the postmortem on the body of Vijay was scheduled for 23.07.2013.
Accordingly, after postmortem on 23.07.2013, the body of Vijay was handed over to them. When the body was handed over to them, he had noticed that one Remex watch, which Vijay used to wear and the yellow metal chain with VK locket, which Vijay used to wear were missing. Police had also informed him that when the body of Vijay was recovered, the said articles were missing.
After the cremation since they were in shock and today i.e. On 31.07.2013, he came to PS and made statement. He was having a strong suspicion that some unknown person had committed the murder of Vijay and in order to destroy the evidence, his body has been thrown in the drain and he wants legal action against the culprits".
2. Inspector Vijay Kumar on the basis of said statement and postmortem report, prepared rukka for offence(s) punishable u/s 302/201 IPC and got the FIR registered from DO and investigations were taken up by Inspector Vijay Kumar.
During investigation, IO Inspector Vijay Kumar prepared the SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 5 of 59 -6- rough site plan of the place of recovery of said body at the instance of SI Sandeep. It was also revealed to IO that deceased was using mobile having two SIM cards having numbers 9711451206 and 8512003015 and the Santro car no. HR55Q70739 was having GPRS location system of GEO Tracker Company.
3. On 27.08.2013, DD No. 36B was got lodged at PS Shahbad Dairy by Inspector Arti Sharma to the effect that accused Jai Singh, Ravi Gupta, Satish and Sanjay @ Sanju (later on declared as juvenile) had been arrested in a kalandra and would be produced before the court.
Accordingly, IO had moved an application and interrogated accused Jai Singh, Ravi Gupta and Satish as well as Sanjay @ Sanju (JCL) after seeking permission from the court and effected their arrest and recorded their disclosure statements. IO had also moved an application for conducting their judicial TIP, but they refused to participate in TIP.
Thereafter, IO had obtained 6 days PC remand of accused Jai Singh, Ravi Gupta and Satish as well as Sanjay @ Sanju (JCL). During PC, accused persons lead the investigation agency to Beni Pati, District Madhuban, where they found the Santro car belonging to deceased deposited in the concerned PS vide DD No. 526/13 dated 22.07.2013 being lying abandoned.
The accused persons had also pointed out the place, where they SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 6 of 59 -7- had sold the mobile phone belonging to deceased. During investigation, IO had recorded the statement of witnesses i.e. Jai Shiv Dixit and other witnesses and the mobile was seized from the possession of one Manoj Singh.
During investigation, accused Ravi Gupta got recovered the robbed watch from his house and accused Satish got recovered one chain from his house. Accused persons also pointed out the place, where they took the lift as well as the place, where they committed the murder of driver Vijay Kumar. They also got recovered the clothes worn by them at the time of commission of the offence. During investigation, the exhibits were sent to FSL and the GPRS call details were obtained.
4. After completion of investigations, chargesheet for offence(s) punishable u/s 302/392/394/201/411/34 IPC was filed against the accused persons namely Jai Singh, Ravi Gupta and Satish as well as Sanjay @ Sanju (declared as juvenile on 17.10.2017).
5. On committal of the case to the Court of Sessions, vide detailed order dated 22.07.2014, charge(s) for offence(s) punishable u/s 302/201/392/394/411/34 IPC was framed against all the accused persons to which all the accused persons pleaded not guilty and claimed trial.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 7 of 59 -8-
6. Thereafter, prosecution in support of its case has examined 33 witnesses :
(a) PW1 is Rajdev Ram who deposed to have identified the dead body of Vijay vide identification statement Ex. PW1/A and received dead body after postmortem vide receipt Ex. PW1/B.
(b) PW2 is Sh. Mukesh Kumar, who deposed that his brother used to run vehicle in Gurgaon and used to talk with his bhabhi on telephone, but for few days, they could not make any contact with Vijay and his bhabhi contacted Sunil Kumar and his mother Smt. Sita Devi, who searched Vijay and came to know about the recovery of dead body of Vijay in a naala. On 22.07.2013, he identified the dead body of Vijay vide identification statement Ex. PW2/A and received dead body after postmortem vide receipt Ex. PW1/B.
(c) PW3 is W/HC Shashikala, who on 19.07.2013 received information from one Bishan Singh from mobile no. 9891700414 to the effect that one dead body had been lying in a naala behind St. Michel School. He filled PCR form Ex. PW3/A and passed on the information on the channel. She also exhibited the attested copy of the said PCR form as Ex. PW3/B.
(d) PW4 is Sh. Luv Jain i.e. Director of Geo Company Tracker. He provided the GPS Tracking report of Hyundi Santro vehicle no. HR SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 8 of 59 -9- 55QT0739 and exhibited the said report as Ex. PW4/A (colly) consisting of 20 pages. He also exhibited the certificate u/s 65B of Indian Evidence Act as Ex. PW4/B and covering letter Ex. PW4/C. He also deposed that the last data received from GPS system was on 16.07.2013, 04:55 hours because the main power connection of the GPS system had been removed.
(e) PW5 is Sh. Pramod Goyal i.e. owner of Hari Tour and Travels.
He deposed that on 26.06.2013 through one Vinod of R. K. Travel, he met Vijay and he appointed Vijay as a driver in his company on Santro car no. HR55QT0739 and deputed him in PWC company permanently.
On 16.07.2013, at about 5:00 pm, a message was received from GPS control about the tempering with GPS system in the said Santro car, whose location was found at Ghaziabad. They started searching for Vijay and made inquiries from PWC company as well as from Vedant Bhatnagar and Chandan Gupta, but in vain. He also deposed that his employees came to know from PS Shahbad Dairy that one Sunil Kumar lodged a report in respect of Vijay. His officials contacted said Sunil Kumar.
He also made inquiries from PS Shahbad Dairy and came to know the murder of Vijay and the robbery of said Santro car. He also deposed that the GPS control system revealed that on 16.07.2013, at about 1:39 am, the position of said car was at Narayan Vihar and SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 9 of 59 -10- thereafter at Shahbad Dairy at about 2:28 am to 2:58 am, on 16.07.2013 and thereafter the location of said car was found upto Ghaziabad via Badli Industrial Area and G.T.K. He also identified the said car from the photographs Ex. PW5/P1 and Ex. PW5/P2.
(f) PW6 is Sh. Jai Shiv Dixit who deposed to have purchased mobile phone for a sum of Rs.400/ from accused persons and also identified the accused persons during his testimony. He also deposed that thereafter he sold the said mobile phone to Amar Gupta and after some time Amar Gupta had given the said mobile instrument to Vikas Gupta and Vikas Gupta had lost the said mobile phone in the area of Haridwar.
He also deposed that when accused persons sold the said mobile phone to him, they were also having one Santro car (taxi) having Haryana registration number starting with HR and all the accused persons went away with said car. He also identified one mobile phone make Bling and exhibited the same as Ex. P1 and the said Santro car from the photographs Ex. PW5/P1 and Ex. PW5/P2.
(g) PW7 is Inspector Anil Kumar i.e. crime team incharge who deposed to have inspected the place of recovery of dead body on 19.07.2013 and prepared crime team report Ex. PW7/A.
(h) PW8 is HC Harish Kumar i.e. crime team photographer (also SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 10 of 59 -11- examined as PW12), who deposed to have taken 12 photographs of the place of recovery of dead body. He exhibited the said photographs as Ex. PW12/A (112) and negatives as collectively exhibited as Ex. PW12/B.
(i) PW9 is Sh. Israr Babu who has exhibited the customer application form of mobile no. 9711451206 in the name of Vijay Kumar Ram as Ex. PW9/A, copy of election identity card of customer as Ex. PW9/B, copy of customer declaration form as Ex. PW9/C, CDR of said mobile from 01.07.2013 to 02.08.2013 as Ex. PW9/D, certificate u/s 65B of Indian Evidence Act as Ex. PW9/E. He has also exhibited the call detail of aforesaid number from 01.06.2013 to 01.08.2013 as Ex. PW9/F, certificate u/s 65B of Indian Evidence Act as Ex. PW9/G and Cell ID Chart of Vodafone as Ex. PW9/H. He had also exhibited the customer application form in respect of mobile no. 9711911835 in the name of Santosh as Ex. PW9/J, copy of identity proof as Ex. PW9/K, CDR of aforesaid phone from 01.07.2013 to 19.08.2013 as Ex, PW9/L, certificate u/s 65B of Indian Evidence Act as Ex. PW9/M. He had also exhibited the customer application form in respect of mobile no. 9711451206 in the name of Vijay Kumar Ram as Ex. PW9/N, copy of identity proof as Ex. PW9/O, CDR of aforesaid phone from 01.07.2013 to 29.08.2013 as Ex, PW9/P, certificate u/s SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 11 of 59 -12- 65B of Indian Evidence Act as Ex. PW9/Q, covering letter as Ex. PW9/R.
(j) PW10 is Sh. Amar Gupta, who deposed to have been running a mobile shop in the name of Gupta Mobile Shop at Fatehganj, Beelpur Village and knows Jai Shiv Dixit. He also deposed that said Jai Shiv Dixit had sold him one mobile pone of Bling company, which he purchased for the sum of Rs.500/. He also deposed that the said mobile had been taken from him by his friend Sh. Vikas Gupta and his friend lost the said mobile in Haridwar. He also exhibited the said mobile instrument as Ex. P1.
(k) PW11 is Vikas Gupta, who deposed that he is knowing Sh. Amar Gupta and he took one mobile phone Bling of white colour from Amar Gupta, however during his visit to Haridwar he lost the said mobile phone. He also exhibited the said mobile instrument as Ex. P1.
(l) PW13 is Sh. Sunil Kumar, who has deposed in corroboration to the statement Ex. PW13/A made before the police. He also exhibited his complaint as Ex. PW13/A. He also identified the photograph of dead body of Vijay as Ex. PW13/B, Santro car (taxi) from the photograph as Ex. PW5/P1 and Ex. PW5/P2. He also identified and exhibited one white colour make Bling as Ex. P3, one wrist watch make Remex as Ex. P4, one golden colour chain having locket of VK SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 12 of 59 -13- as Ex. P5.
(n) PW14 is Inspector Mahesh Kumar, who deposed to have prepared scaled site plan Ex. PW14/A.
(o) PW15 is Ct. Ajay Kumar, who on 19.07.2013, on receipt of DD no. 16A Ex. PW15/A had accompanied SI Sandeep to the place of recovery of dead body. He also deposed to have delivered the copies of FIR to senior police officials and Ld. MM on 31.07.2013.
(p) PW16 is HC Murari Lal, who deposed to have joined investigation with IO on 29.08.2013 and exhibited the arrest memos of accused persons as Ex. PW16/A to Ex. PW16/D, their disclosure statements as Ex. PW16/E to Ex. PW16/H. He also deposed to have joined the investigation on 02.09.2013 and exhibited the supplementary disclosure statements of accused persons as Ex. PW16/I to Ex. PW16/L. He also deposed that on 03.09.2013, accused persons pointed out the place, where they sold the mobile phone of deceased Vijay to Jai Shiv Dixit vide pointing out memos Ex. PW16/M1 to Ex. PW16/M4 and the sketch of the said place as Ex. PW16/N. He also deposed to have joined the investigation on 04.09.2013 and deposed that on that day accused persons led them to PS Beni Pati, District Madhubani, where they had parked the robbed Santro SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 13 of 59 -14- car and IO prepared pointing out memo Ex. PW16/O and IO prepared sketch of the said place vide memo Ex. PW16/P. He also deposed that IO had seized the said vehicle from the malkhana of PS Beni Pati vide seizure memo Ex. PW16/Q and prepared observation memo Ex. PW16/Q1. He also deposed that on 05.09.2013, accused Ravi Gupta from his house got recovered one Remex watch which was sealed with the seal of VKR and seized the same vide seizure memo Ex. PW16/R. He also deposed that on 06.09.2013, accused Satish from his house got recovered one chain golden colour having locket VK which was sealed with the seal of VKR and seized the same vide seizure memo Ex. PW16/S and IO prepared the sketch of the said place as Ex. PW16/S1.
He also deposed to have witnessed the pointing out memos Ex. PW16/K1 to Ex. PW16/K4 and Ex. PW16/L1 to Ex. PW16/L4 and Ex. PW16/M1 to Ex. PW16/M4, Ex. PW16/N1 to Ex. PW16/N4, Ex. PW16/O1 to Ex. PW16/O4 and sketches of the said places as Ex. PW16/K5 and Ex. PW16/L5 and seizure memo Ex. PW16/P and seizure memo Ex. PW16/Q.
(q) PW17 is Sh. Ajay Singh i.e. Ahlmad, who had produced the original kalandra and exhibited the same as Ex. PW17/A.
(r) PW18 is Sh. Deepak Dabas, the then Ld. MM who deposed to SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 14 of 59 -15- have conduced judicial TIP proceedings of Sanjay @ Sanju (JCL) vide TIP proceedings Ex. PW18/A and certificate Ex. PW18/B. He also conduced judicial TIP of accused Satish vide proceedings Ex. PW18/C and certificate Ex. PW18/D. He also exhibited the application Ex. PW18/E vide which the copy of proceedings were allowed to be given to IO.
(s) PW19 is W/HC Sunita i.e. DO who registered FIR Ex. PW19/A made endorsement Ex. PW19/B on the rukka and also issued certificate u/s 65B of Indian Evidence Act Ex. PW19/C. She also handed over the copies of FIR to Ct. Ajay for delivering the same to Ld. Area MM and senior police officials.
(t) PW20 is HC Ishwar Lal i.e. MHCM who exhibited entry at serial no. 1445 in register no. 19 as Ex. PW20/A, entry at serial no. 1465 Ex. PW20/B, entry at serial no. 1492 as Ex. PW20/C, entry at serial no. 1514 as Ex. PW20/D. He also exhibited RC no. 226/21/13 as Ex. PW20/F and acknowledgment as Ex. PW20/G, RC No. 243/21/13 as Ex. PW20/H, acknowledgment as Ex. PW20/J, RC No. 280/21/13 as Ex. PW20/K, acknowledgment as Ex. PW20/L, RC No. 96/21/14 as Ex. PW20/M and acknowledgment as Ex. PW20/N, RC No. 100/21/14 as Ex. PW20/O and acknowledgment as Ex. PW20/P. SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 15 of 59 -16- (u) PW21 is Sh. Sandeep Gupta, the then Ld. MM, who deposed to have conduced judicial TIP proceedings of accused Jai Singh @ Hari Om and Ravi Gupta vide TIP proceedings Ex. PW21/A and Ex. PW21/B respectively. He also exhibited the application Ex. PW21/C vide which the copy of proceedings were allowed to be given to IO.
(v) PW22 is Dr. Vijay Dhankar, who deposed to have conduced postmortem on the body of deceased Vijay vide PM no. 419/13 Ex. PW22/A. He opined the cause of death of Vijay due to smothering and suffocation by the clothes ligature around the mouth. He also sealed the exhibits and handed over the same to IO.
(w) PW23 is Inspector Brijesh Mishra, who deposed to have conduced further investigation and seized mobile from witness Manoj vide seizure memo Ex. PW23/A1 and also collected the GPS details vide memo Ex. PW4/A. He also collected FSL result of Physics Ex. PW23/A, FSL result of Biology Ex. PW23/B and FSL result dated 13.09.2013 Ex. PW23/C. Upon completion of investigation, he prepared chargesheet.
(x) PW24 is SI Satya Narayan, who on 30.07.2013 went to mortuary BSA Hospital and collected the viscera box and 6 other exhibits in sealed condition, PM report and inquest papers which IO seized vide seizure memo Ex. PW24/A. SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 16 of 59 -17- (y) PW25 is Inspector Rajnish Sharma who deposed to have joined the raiding party with Inspector Arti Sharma and other officials of SIT Crime Branch. He also deposed that mobile phone recovered from the possession of accused Ravi was seized vide seizure memo Ex. PW25/A, two mobile phones recovered from the possession of accused Jai Singh was seized vide seizure memo Ex. PW25/B, mobile phone recovered from the possession of Sanjay (JCL) was seized vide seizure memo Ex. PW25/C. He also exhibited the arrest memos of accused persons as Ex. PW25/D to Ex. PW25/G, their personal search memos Ex. PW25/H to Ex. PW25/L and their disclosure statements Ex. PW25/M to Ex. PW25/P. He also exhibited the seizure memo of motorcycle as Ex. PW25/Q and kalandra as Ex. PW17/A. (z) PW26 is SI Sandeep who deposed that on 19.07.2013 DD No. 16A Ex. PW15/A, he alongwith Ct. Ajay reached at the place of recovery of dead body. He also called crime team at the spot and got the spot inspected through crime team officials. He also lodged DD No. 51B Ex. PW26/A. He also deposed that on 21.07.2013, some public persons came to PS for lodging missing report of Vijay and those persons were shown the photographs of a dead body and they identified the said SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 17 of 59 -18- photographs to be of Vijay. He also deposed that the said persons had also identified the dead body in the mortuary.
He also deposed to have conduced inquest proceedings and exhibited form no. 25.35 as Ex. PW26/B, request letter to perform autopsy EX. PW26/C, the dead body identification statements as Ex. PW1/A and Ex. PW2/A and receipt of handing over of dead body as Ex. PW1/B. He also exhibited the seizure memo Ex. PW26/E vide which the recovered articles after the postmortem were handed over to him.
(z1) PW27 is Inspector Arti Sharma Inspector, who deposed to have prepared the raiding party alongwith other officials of SIT Crime Branch. She also exhibited DD no. 29A as Ex. PW27/A. She also deposed that mobile phone recovered from the possession of accused Ravi was seized vide seizure memo Ex. PW25/A, two mobile phones recovered from the possession of accused Jai Singh was seized vide seizure memo Ex. PW25/B, mobile phone recovered from the possession of Sanjay (JCL) was seized vide seizure memo Ex. PW25/C. She also exhibited the arrest memos of accused persons as Ex. PW25/D to Ex. PW25/G, their personal search memos Ex. PW25/H to Ex. PW25/L and their disclosure statements Ex. PW25/M to Ex. PW25/P. She also exhibited the seizure memo of motorcycle as Ex. PW25/Q and kalandra as Ex. PW17/A. SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 18 of 59 -19- (z2) PW28 is SI Ram Chander Mandal, who deposed that on 22.07.2013, he was posted as SI at PS Beni Pati, District Madhubani, Bihar and on that day, an information was received that one Santro car has been parked in abandoned condition without having any registration number. Accordingly, he alongwith SI Suresh Prasad went to Block Road, near Hardware shop of Pramod Mishra and seized the said car u/s 102 Cr.P.C. He also lodged DD no. 526 Ex. PW28/A in roznamcha.
(z3) PW29 is Ct. Hitesh Joshi, who deposed to have joined investigations on 02.09.2013 with IO Inspector V. K. Rastogi. He exhibited the disclosure statements of accused persons as Ex. PW16/A to Ex. PW16/L and pointing out memos Ex. PW16/M1 to Ex. PW16/M4.
He also deposed to have joined investigation on 04.09.2013 and exhibited the pointing out memo as Ex. PW16/O and site plan as Ex. PW16/P. He also exhibited the seizure memo of Santro car as Ex. PW16/Q. He also deposed to have joined investigation on 05.09.2013 and exhibited the seizure memo of Romex watch which was recovered at the instance of accused Ravi Gupta as Ex. PW16/R, site plan as Ex. PW16/R1.
He also deposed to have joined investigation on 06.09.2013 and exhibited the seizure memo of golden colour chain having locket of VK which was recovered at the instance of accused Satish as Ex.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 19 of 59 -20- PW16/S, site plan as Ex. PW16/S1. He also exhibited the pointing out memos as Ex. PW16/K1 to Ex. PW16/K4 and site plan as Ex. PW16/K5.
He also exhibited the seizure memo of clothes of accused persons as Ex. PW16/L1 to Ex. PW16/L4 and site plan as Ex. PW16/L5. He also exhibited the pointing out memos as Ex. PW16/M to Ex. PW16/M3 and site plan as Ex. PW16/M4 as well as pointing out memos as Ex. PW16/N to Ex. PW16/N4 and site plan as Ex. PW16/N4 as well as pointing out memos as Ex. PW16/O to Ex. PW16/O3, site plan as Ex. PW16/O4. He also exhibited the seizure memo of nala mud water control as Ex. PW16/P. (z4) PW30 is Sh. Parsuram Singh, Assistant Director (Physics), who deposed to have examined the exhibits and prepared FSL report dated 31.12.2013 Ex. PW23/A. (z5) PW31 is Sh. Amar Pal Singh, Assistant Director (Chemistry) who deposed to have examined the exhibits and prepared FSL report dated 13.09.2013 Ex. PW23/C. (z6) PW32 is Sh. Indresh Kumar Mishra, Assistant Director (Biology) who deposed to have examined the exhibits and prepared FSL report dated 13.02.2014 Ex. PW23/B. SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 20 of 59 -21- (z7) PW33 is IO Inspector Vijay Rastogi, who deposed to have conduced investigation and prepared rukka Ex. PW33/A. He also exhibited rough site plan as Ex. PW33/B. He also deposed to have effected the arrest of accused persons and moved an application for their judicial TIP.
He also deposed regarding the recoveries at the instance of accused persons. He also exhibited the relevant memos prepared by him during investigation.
7. Vide order dated 06.02.2019, the prosecution evidence was closed.
8. Thereafter, statements of accused persons u/s 313 Cr.P.C. were recorded separately in which the entire incriminating evidence appearing against the accused persons was put to them, in which the defence of the accused persons was that they had been residing in neighbourhood and they were lifted from their respective houses and were taken to office of Crime Branch Special Staff, where after some inquiries, they have been falsely implicated in a kalanda and thereafter in the present case.
They denied that any such recoveries were effected at their instance. However, they chose not to lead evidence in their defence.
9. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP for the State, Sh.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 21 of 59 -22- Riyaz Mohd., Ld. Counsel for accused Ravi Gupta as well as Sh. Gajraj Singh, Ld. Counsel for accused Satish and Amicus Curiae for accused Jai Singh.
10. Ld. Counsels for the accused persons have argued that accused persons have been falsely implicated and the material links are missing in the chain of circumstantial evidence. Ld. Counsels have also argued that the prosecution has not been able to complete the chain of events which is a material aspect in a case of circumstantial evidence.
It is stated that the dead body in this case was recovered on 19.07.2013, whereas the FIR was registered in this case on 31.07.2013. It is also argued that though the inquest proceedings regarding the dead body were conducted on 19.07.2013 and the dead body was also handed over to the relatives of the deceased on 23.07.2013, yet no FIR was registered on the DD entry.
Further, in the statement of the relatives of the deceased Ex. PW1/A and Ex. PW2/A, there is no mention with regard to the missing of mobile phone, watch and the gold chain of the deceased in the said statements recorded on 23.07.2013. It is therefore stated that the allegations in the rukka dated 31.07.2013 that these things belonged to the deceased was an after thought.
It is also sated that admittedly no TIP of these articles was got conducted from the relatives of the deceased by the investigating SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 22 of 59 -23- officer. This shows that the entire case of the prosecution is false. It is also argued that the accused persons had been arrested after the information was received vide DD No. 29A dated 26.08.2013 regarding the constitution of the raiding party on the basis of technical surveillance of certain mobile phones. However, it has not been mentioned which mobile phones were put under surveillance and it pertained to whom nor the CDRs of the same have been produced on the record.
It is also argued that the accused persons were arrested vide kalandara u/S. 41.1(B)(a) CrPC on 27.08.2013, in which also the mobile phones which were put under surveillance have not been mentioned.
It is also argued that as per the arrest memos produced on the record, mobile phone was recovered from all the accused persons, yet CDRs of the said mobile phones were never taken or placed on the record, which would have proved the location of the accused persons at different times during the course of the present case. It is also argued that Manoj Singh mentioned at serial no. 9 of the list of witnesses has not been examined, who would have proved that he found the mobile phone lost by Vikas Gupta in Haridwar to prove the entire chain of purchase of mobile phone.
It is also stated that PW6 Jai Shiv Dixit is a planted witness, who had been planted by the prosecution to somehow falsely implicate the accused persons in this case. His testimony as a whole is highly SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 23 of 59 -24- doubtful and of dubious nature and cannot be relied upon. Regarding the alleged recovery of one watch with silver colour chain from the house of the accused Ravi Gupta and recovery of one golden colour chain having locket at the instance of the accused Satish, it is stated that the said recoveries are planted as it is argued that no public witness was joined at the time of recoveries nor TIP of the case properties was got conducted.
It is also stated that in the present case two disclosure statements had been recorded of the accused persons one dated 29.08.2013 and another dated 02.09.2013, which shows that the entire investigation is a tainted one.
It is also stated that the recovery of the clothes which the accused persons were allegedly wearing at the time of the incident does not show any incriminating fact during the FSL analysis. It is also stated that the car had been recovered and was lying deposited in the police station at District Madhubani, Bihar and the same was not recovered pursuant to the disclosure statement of the accused persons. Therefore, the said disclosure statement is not admissible u/S. 27 of the Evidence Act.
They further argued that the prosecution has miserably been failed to prove its case and thus all the accused persons may be acquitted. They have also relied upon the judgment cited as Reena Hazarika Vs. State of Assam 2019 [1] JCC 1[SC], Dhan Raj alias Dhand Vs. State of Haryana Badal Vs. State of Haryana SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 24 of 59 -25- 2014CRI.L.J. 2778, Mahendran Langeswaran Vs. State (NCT of Delhi) & Anr. Criminal Appeal No. 1300 of 2009, decided on 01.07.2013, Sahadevan & Anr. Vs. Sate of Tamil Nadu Criminal Appeal No. 1405 of 2008, decided on 08.05.2012 and Bakshish Singh Vs. The State of Punjab AIR 1971 Supreme Court 2016 in support of their contentions.
11. On the other hand, Ld. Addl. PP has argued that there is nothing on record to disbelieve the testimony of prosecution witnesses and there are sufficient circumstantial evidences available on record. Ld. Addl. PP has also argued that public witness i.e. PW6 Sh. Jai Shiv Dixit to whom the accused persons had sold the robbed mobile phone during his testimony has identified the accused persons. He also deposed that the accused persons have also pointed out the place, where they had left the robbed Santro car and as such investigation agency approached the local police station and found the said car to be deposited in the malkhana.
He also argued that the accused persons had committed murder of innocent taxi driver and robbed his articles and ultimately got recovered the said robbed articles which was identified by the witnesses during trial and thus Ld. Addl. PP submits that accused persons be convicted for the charge(s) framed against them.
12. I have gone through the rival contentions.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 25 of 59 -26-
13. In the present case, the prosecution is relying upon circumstantial evidence only as there is no direct evidence in the present case. The entire case has to be decided on the basis of pieces of evidences from which inferences have to be drawn, which may be inductive or deductive to reach the conclusion or to prove the probandum that it was the accused persons who had killed the deceased Vijay.
14. In the case of Mohmood Vs. State of U.P. (1976) 1 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be satisfied
(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt:
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him".
However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 26 of 59 -27- Vs. State of Madhya Pradesh, 1952 SCR 1091 AIR 11952 SC 343 and stated the five golden principles constituting the Panchsheel of the proof of a case based on circumstantial evidence as follows:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that ....... the circumstances concerned 'must or should' and knot 'may be' established. There is not only a grammatical but a legal distinction between may be proved' arid 'must be or should be proved'.....
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to the proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 27 of 59 -28-
15. The following circumstances were pressed into service by the prosecution in support of its case :
a). All the accused persons in furtherance of their common intention robbed one Santro car no. HR55QT0739 from the area of Madhuban Chowk.
b). That thereafter they killed Vijay, the driver of the said Santro (cab) by strangulating him.
c). That they robbed his belongings consisting of his watch, car, mobile phone, chain.
d). That they wanted to sell the car in Nepal, but left it abandoned near IndiaNepal Border.
e) That accused persons were arrested by SIT Crime Team as per technical surveillance information supervised by PW27 Arti Sharma and pursuant to that they were arrested on 27.08.2013 near Rithala Metro Station riding a bike.
f). They made disclosure statement that they can lead to person, whom the mobile of deceased was sold by them.
g). That accused Ravi Gupta got recovered the watch of deceased from his house pursuant to his disclosure statement.
h). That accused Satish got recovered the gold chain belonging to deceased from his house pursuant to his disclosure statement.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 28 of 59 -29-
i). That all the accused persons also got recovered their respective soiled clothes, which they were wearing at the time of incident from a desolate spot.
16. First of all, the circumstance (a) is taken up for analysis. In this regard, there is no legally admissible evidence on the record barring the disclosure statement of the accused persons Ex. PW16/G, E, H and F dated 29.08.2013 and thereafter another set of disclosure statements Ex. PW16/I, J, K and L dated 02.09.2013 as barring the said disclosure statements, made by the accused persons, which is in the nature of self incriminating evidence, there is no other evidence on the record in this regard and the said disclosure statements are hit by Section 25 of the Evidence Act.
Therefore, this circumstance (a) has not been proved. In any case, same is the inference which has to be drawn after the cumulative analysis of all the circumstances elaborated above at the end of the discussion. However, this circumstance (a) is decided in favour of the defence and against the prosecution.
17. With regard to the circumstance (b), though the prosecution has been able to prove the post mortem report of the deceased Ex. PW22/A. PW22 Dr. Vijay Dhankar, who had performed the autopsy on the body of the deceased has deposed :
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 29 of 59 -30- "During the postmortem, body was found decomposed and the piece of cloth was tied over the mouth. On removal the same, it was found to be a piece of baniyan. Another piece of cloth was found stuffed inside the mouth. Both the wrist were tied behind the back.
Opinion In my opinion, death was likely to be due to smothering and suffocation by the clothes ligature around the mouth. Clothes, ligature, viscera alongwith blood sample, sternum and sample seal sealed with the seal of department and handed over to IO."
From the aforesaid post mortem report, the prosecution has been able to prove that the deceased had been killed by smothering and suffocation by ligature material around his mouth, but there is no direct evidence that it was the accused persons who did it barring their confessional statements, which is hit by Section 25 of the Evidence Act.
Further in this regard the prosecution has also relied upon Ex. PW23/B, which is the forensic report for diatoms, which is a test done to find out if a dead body which has been recovered from the water and that the death in the said case was due to drowning. The diatoms are unicellular, photosynthetic, eukaryotic organisms often classifieds as among the algae and there are around fifteen thousand known species, but many more are yet to be found and described. Diatoms have been used in forensic science in a variety of ways, the SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 30 of 59 -31- most frequent being the diagnosis of the death by drowning.
If the person is still alive when entering the water, diatoms will enter the lungs if the person inhales and drowns. The diatoms then are carried to distant parts of the body such as brain, kidney, lungs and bone marrow by circulation.
On the other hand, if the person is dead when entering the water then there is no circulation and the transportation of diatoms cells to various organs is prevented because of lack of circulation and diatoms cannot enter the body.
When a body is recovered from water, there is usually a suspicion whether it was a case of ante mortem or post mortem drowning, whether the body was drowned before or after the death.
18. In the present case, as per report Ex. PW23/B, the diatoms from the water sample taken from the Nala, where the dead body of the deceased was found were taken and one bone piece i.e. the sternum of the deceased was sent for comparison, however the diatoms were only detected in Nala sample, but could not be detected in the sternum of the deceased, which shows that he had been killed first and then dumped into Nala and his death had not taken place due to drowning into the Nala, which also supports the prosecution story.
Therefore, the prosecution has been able to prove the manner of the death of the deceased, but they have failed to prove that it was the accused persons who did it, in any case, same is the inference, SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 31 of 59 -32- which has to be drawn after the cumulative analysis of all the circumstances elaborated above and at the end of the discussion. The circumstance (b) is decided accordingly.
19. With regard to the circumstance (c), in this regard, there is no legally admissible evidence on the record barring the disclosure statement of the accused persons Ex. PW16/G, E, H and F dated 29.08.2013 and thereafter another set of disclosure statements Ex. PW16/I, J, K and L dated 02.09.2013 as barring the said disclosure statements, made by the accused persons, which is in the nature of self incriminating evidence, there is no other evidence on the record in this regard and the said disclosure statements are hit by Section 25 of the Evidence Act.
Therefore, this circumstance (c) has not been proved. In any case, same is the inference, which has to be drawn after the cumulative analysis of all the circumstances elaborated above and at the end of the discussion. However, this circumstance (c) is decided in favour of the defence and against the prosecution.
20. Now the circumstance (e) is taken up. In this regard, testimonies of PW27 Inspector Arti Sharma and PW25 Inspector Rajnish Sharma are relevant.
PW27 in her examinationinchief has deposed as under :
"In the intervening night of 26/27.08.2013, I SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 32 of 59 -33- was posted at SIT Crime Branch, Sector18, Rohini. I was supervising the technical surveillance taken in this case. On that day, in the night, on technical surveillance / information that four persons involved in case FIR No. 399/13 of PS Shahbad Dairy u/s 302/201 IPC would reach at Madhuban Chowk in between 4:30 to 5:00 am and, if raided, they can apprehended.
The information was discussed with ACP SIT Crime Branch, Sector18, Rohini and he directed me to proceed. Thereafter, I directed HC Deepak to call the members of other SIT Crime Branch officials in the office.
Accordingly, a raiding party was organized under my supervision consisting of SI Rajneesh Sharma, ASI Suresh Kumar, HC Shyam Lal, HC Bahadur Sharma, HC Rajender, HC Narender, HC Deepak, Ct. Dabbu Kanwar, HC Ajeet, HC Surender, Ct. Satbir and Ct. Ravinder and I briefed all the members about the information and we left the SIT Crime Branch vide DD No. 29 which is Ex. PW27/A in five private vehicles in SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 33 of 59 -34- civil clothes.
On 27.08.2013, at about 3:55 am, we reached Madhuban Chowk, there I requested 67 passersby to join the raiding team, but all of them left the spot showing their inability without disclosing their names and addresses. I again briefed the members of raiding team and directed to take different positions on both sides of the road after parking our vehicles on the Service Road leading towards to Wazirpur.
At about 4:50 am, one motorcycle bearing registration no. DL8SAM6790 make Bajaj Discover came from the side of Rithala Metro Station on which four persons were riding. The secret informer pointed out towards those persons and motorcycle and he left the spot.
Thereafter, the said motorcycle was got stopped by HC Deepak by signaled it, but the said motorcycle was not stopped. HC Deepak caught hold the carrier of the motorcycle from behind and in the meanwhile other members of the raiding team reached at the spot. The four persons were overpowered one by one by HC SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 34 of 59 -35- Narender, HC Ajit, Ct. Dabbu and SI Rajnish. All the four persons were interrogated and the person, who was apprehended by SI Rajnish disclosed his name as Ravi, accused present in the court today (correctly identified by the witness).
HC Narender produced the person who was driving the motorcycle and he disclosed his name as accused Jai Singh @ Hari Om, who is present in the court today (correctly identified by the witness).
The person who was apprehended by HC Ajit disclosed his name as Sanjay (now JCL) and the person who apprehended by Ct. Dabbu disclosed his name as accused Satish, who is present in the court today (correctly identified by the witness).
All the three alongwith JCL wereinterrogated by me. On my direction, SI Rajnish conducted the formal search of accused Ravi, one mobile phone make Nokia bearing no. 8800898555 (which was on interception) was recovered from the left side pocket of his pant.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 35 of 59 -36- The said mobile phone was kept in a white colour cloth and converted into a pulanda and sealed with the seal of AS and taken into possession vide seizure memo already Ex. PW25/A which bears my signatures at point B and IMEI number was also got noted down in the seizure memo and the pulanda was given serial no. 1.
SI Rajnish got conducted the formal search of accused Jai Singh and two mobile phones i.e. Carbon K9 and Sony Erricson were recovered from his possession. I noted down the IMEI Numbers and both the mobile phones were converted into a pulanda and sealed with the seal of AS and taken into possession vide seizure memo already Ex. PW25/B which bears my signatures at point B and the pulanda was given serial no. 2 & 3.
SI Rajnish got conducted the search of JCL Sanjay and one mobile phone make Nokia 305 was recovered from him. I noted down the IMEI Number and the mobile phone was converted into a pulanda and sealed with the seal of AS SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 36 of 59 -37- and taken into possession vide seizure memo already Ex. PW25/C which bears my signatures at point B and the pulanda was given serial no.4.
Seal after use was handed over to SI Rajnish. All the accused persons were brought to SIT Crime Branch office and I recorded the DD no. 4A regarding our arrival and arrest of accused persons, the said DD No. 4A is Ex. PW27/B. There accused Ravi Gupta, Jai Singh, Satish and Sanjay were arrested vide arrest memos already Ex. PW25/D, Ex. PW25/E, Ex. PW25/F and Ex. PW25/G and their personal search were conducted vide memos already Ex. PW25/H, Ex. PW25/J, Ex. PW25/K and Ex.
PW25/L, all these memos bears my signatures at point B respectively. They voluntarily confessed their guilt regarding the involvement in the present case and disclosed their disclosure statements one by one which are already Ex. PW25/M, Ex. PW25/N, Ex. PW25/O and Ex. PW25/P, which also bears my signatures at point B respectively.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 37 of 59 -38- The motorcycle on which accused persons came at the spot was taken into possession vide seizure memo already Ex. PW25/Q bears my signatures at point B. I prepared the kalandra already Ex. PW17/A and thereafter all the four persons were produced in the court and information was given to PS Shahbad Dairy. From PS Shahbad Dairy, Inspector Vijay Kumar alongwith his staff met me at Rohini Court, there I handed over photocopies of kalandra and other documents to the IO of the present case. Case property was already deposited in the malkhana of Crime Branch.
On 08.09.2013, Inspector Vijay Kumar came at office of the SIT Crime Branch and made inquiries from me and recorded my statement in this regard.
21. The testimony of PW25 Inspector Rajnish is also on the same lines and converges with the testimony of PW27 on the arrest and apprehension of the accused persons as well as recording of their disclosure statements. Both PW25 and PW27 have been cross examined. PW25 in his crossexamination has admitted that it is SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 38 of 59 -39- correct that in DD No. 29 dated 26.08.2013, the number of the mobile phone which were put on surveillance have not been mentioned.
Similarly, PW27 in her crossexamination had stated that she does not remember the exact number of the mobile phones of which she was supervising technical surveillance. She also stated that permission had also been taken from the competent authority but no permission was found on the record. She also admitted that she had also collected the CDRs of the recovered mobile phones.
22. Irrespective of the said facts stated by PW25 and PW27 in their crossexamination the prosecution has been able to prove the manner of arrest of accused persons on 27.08.2013 by the police party while three of the accused persons were riding the motorcycle and recording of their disclosure statements and their arrest and personal search memos as well recovery of mobile phones from the possession of the accused persons. Therefore, in view of the above discussion, the prosecution has been able to prove the circumstance
(e) which is decided in favour of the prosecution and against the defence.
23. Now the circumstances (d) & (f) are taken up together, as they are interconnected with each other. In this regard, the testimonies of IO ACP Vijay Rastogi, PW16 HC Murari Lal, PW29 Ct. Hitesh Joshi are relevant.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 39 of 59 -40- PW33 ACP Vijay Rastogi in his examination in chief has deposed as under :
".......Thereafter, we made efforts for the search of accused persons. On 27.08.2013, an information was received from the office of Crime Branch, Sector18, Rohini that four accused persons have been arrested in kalandra u/s 41 Cr.P.C. and the said persons i.e. accused persons Jai Singh, Ravi Gupta, Satish and Sanjay and had made their respective disclosure statements thereby disclosing their involvements in the present case.
On 28.08.2013, I moved an application for the production warrants of aforesaid accused persons.
Thereafter, on 29.08.2013, I alongwith HC Murari Lal went to Rohini Courts. On that day, accused Jai Singh @ Hari Om, Satish, and Ravi Gupta, who are present in the court today (correctly identified by the witness) as well as Sanjay @ Sanju (later on declared JCL) were produced in muffled face. I had moved an application and interrogated the aforesaid SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 40 of 59 -41- accused persons and JCL. After interrogation, I had effected their arrest vide arrest memos already Ex. PW16/A to Ex. PW16/D respectively. The said accused persons had also made disclosure statements already Ex. PW16/E to Ex. PW16/H which bears my signatures at point X. On the same day, I had moved an application for TIP of the aforesaid accused persons and JCL, but they refused to participate in judicial TIP and I had collected the said proceedings. Thereafter, on 02.09.2013, I had obtained six day PC remand of all the accused persons and JCL. During PC remand, HC Hitesh Joshi had joined the investigation of the present case alongwith me and HC Murari Lal and other staff. Accused persons Jai Singh, Ravi Gupta, Satish and JCL Sanjay @ Sanju during police custody remand made supplementary disclosure statements before me, which are already exhibited as Ex. PW16/I, Ex. PW16/J, Ex. PW16/K and Ex. PW16/L respectively. All bears my signature at point X. On 03.09.2013, accused persons led us to Bhelpur Railway Station, Fatehganj East, District SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 41 of 59 -42- Barelley, where they had sold the robbed mobile phone of deceased Vijay to one Jai Shiv Dixit. Said Jai Shiv Dixit had also identified all the three accused persons including JCL I had prepared the pointing out memos already Ex.
PW16/M1 to Ex. PW16/M4, all bears my signatures at point X. I had also prepared the site plan of the said place which is already Ex. PW16/N which also bears my signature at point X. Thereafter, on 04.09.2013, HC Hitesh Joshi and HC Murari had again joined the investigation of the present case. On that day, all the three accused persons including JCL led us to PS Benipatti, District Madhubani, Bihar i.e. Block Road, near the shop of Pramod Mishra Hardware, where they had parked the robbed Santro car bearing registration number HR 55QT0739 on 21.07.2013. I had prepared the pointing out memo already Ex. PW16/O and site plan of the said place which is already Ex. PW16/P, both bears my signature at point X. SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 42 of 59 -43- Upon inquiries it was revealed to us that the said car was seized by the local police officials and accordingly we went to PS Benipatti and found the said car deposited in malkhana. I had seized the said car vide seizure memo already Ex. PW16/Q bears my signature at point X and also prepared observation memo already Ex. PW16/Q1. I had recorded the statement of witnesses......"
24. These witnesses were crossexamined. It has come in the crossexamination of the above witnesses that no public witness was joined in the investigations nor the photography or the videography of the recovery proceedings were done.
Regarding the recovery of the Santro car belonging to the deceased pursuant to the disclosure statement of the accused vide pointing out memo Ex. PW16/O, the accused persons pointed out the spot i.e. shop of one Pramod Mishra Hardware, District Madhubani, Bihar, where they had parked the vehicle belonging to the deceased HR55QT0739. Though, the said pointing out memo does not lead to the recovery of the said Santro car, however, the very fact that the said car had been deposited by the police officials of PS Benipatti Thana, District Madhubani, Bihar dated 22.07.2013 vide Ex. PW28/A SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 43 of 59 -44- as the information was received by them, the said car was lying abandoned near the Block Road, near the shop of Pramod Mishra Hardware, which they deposited in the police station Benipatti.
The very fact that the accused persons were having knowledge that they had parked the car at particular place from where it was discovered by the local police and deposited in the local police station on 22.07.2013 proves that the accused persons were having knowledge about the said car being left / parked at the place.
Since the car had only been relocated from the said place by the local police, which ultimately was found lying deposited in the local police station, therefore, by confirmation of subsequent facts, the recovery of the Santro car can be said to have been made pursuant to the disclosure statement of the accused persons and is admissible as such u/S. 27 of the Evidence Act, therefore, the prosecution has been able to prove the circumstance (d) which is decided in favour of the prosecution and against the defence.
25. Regarding the circumstance (f), the prosecution has examined PW6 Jai Dixit, to whom allegedly a mobile phone was sold by the accused persons at Beelpur Railway Station on 16.07.2013 for Rs. 400/, as also PW10 Amar Gupta to whom PW6 had further sold the said mobile phone of Bling Company for Rs. 500/ and they have also examined PW11 Vikas Gupta to whom the mobile phone was lent by PW10 for use, which he had lost in the area of Haridwar, which was SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 44 of 59 -45- ultimately recovered from one Manoj Singh (who has not been examined).
26. The testimony of PW6 is relevant in this regard, who in his examinationinchief has deposed as under :
"On 16.07.2013, I was present at Beelpur Railway Station to receive my father, where four boys met me and offered to sell one mobile phone on the pretext that their car ran out of petrol. They had also shown one driving license ID in the name of Sanjay. They asked me for Rs.700/ for that mobile phone. On believing their words, I agreed to purchase the same for a sum of Rs.400/ and purchased the same. The said mobile phone was of white colour.
At this stage, witness pointed out towards the accused Sanjay, Jai Singh @ Hariom, Ravi Gupta and Satish, who are present in the court today (correctly identified by the witness) being the person who had sold the mobile phone to me.
I had sold thereafter aforesaid the mobile phone to Amar Gupta as I was not having the charger and the said Amar Gupta after using the SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 45 of 59 -46- same for some time had given the same to Vikas Gupta (Pammu). The said Pammu (Vikas Gupta) had lost that mobile phone in the area of Haridwar.
The accused persons were at that time of the aforesaid dealing was having one Santro Car (Taxi) having Delhi/Haryana registration number.
Again said Haryana Registration number starting with HR and all the accused persons went away with that Santro Car (Taxi). I joined the investigation in this case. The accused persons refused for their judicial TIP and thereafter, I identified them by their photograph / dossier.
I can identify the case property if shown to me.
At this stage, MHC(M) has produced one mobile phone whose front is of white colour and base is of black colour, make Bling and the witness identified the same being the mobile phone sold to him by the accused persons. Same is Ex.P1.
At this stage, the witness identified the Santro Car (Taxi) from the photographs already exhibited as Ex.PW5/P1 and Ex.PW5/P2.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 46 of 59 -47- At this stage, production of the Santro Car (Taxi) is dispensed with as the identity of the car is not disputed by ld. defence counsels on the instructions of accused persons. The said Santro Car (Taxi) is Ex.P2."
27. The above witness was crossexamined by Ld. Defence Counsel. In his crossexamination, he has stated that the accused persons approached him at the railway station. He had not purchased the platform ticket nor obtained the receipt for the purchase of the mobile phone, that on 1617.08, he had joined the investigation at PS Fateh Ganj East. He had also joined the investigations by visiting police station at Delhi and he had seen the accused persons in the police station at Delhi. He had not obtained any receipt from Amar Gupta PW10.
In his further crossexamination, he had stated that it was correct that he had not mentioned the make of the mobile phone in his statement to the police. He also stated that he had told the police about the colour of the face of the accused persons and he had also told them about the tattoo mark, he had seen at the hand of the accused persons. During his crossexamination, a Court Observation was also made as under :
"Court Observation: At this stage, accused Satish is having tattoo mark name Satish written on his left SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 47 of 59 -48- hand.
At this stage, accused Jai Singh is having JB tattoo on his left hand.
At this stage, accused Sanjay is having tattoo mark of "Khanda" (religious sign of Sikh Community)."
28. However, when he was further crossexamined he admitted that he had not stated about the tattoo marks to the police, which is very important piece of omission on the part of the said witness as the said tattoo marks were the peculiar marks attributable to the accused persons, which could have had great evidentiary value with regard to their identifications.
29. Further the identification of the accused persons in the Court by this witness for the first time, while the accused persons were in dock is not having much evidentiary value, as he had already seen the accused persons, as admitted by him in his crossexamination on 16 17.08 and later on by visiting the police station at Delhi, whereas, the accused persons had refused their TIPs vide Ex. PW21/A, B, Ex. PW18/A and Ex. PW18/C, which were conducted on 02.09.2013 and 31.08.2013 respectively and the reason given by the accused persons was that their photographs had already been taken in the police station.
Since the PW6 had the occasion to see the accused persons SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 48 of 59 -49- twice before the TIP i.e. on 1617.08 and thereafter in the police station, therefore, it is not clear as to why an application for conducting TIP was moved at all by the IO for fixing the identities of the accused persons, as the entire process appears to be contrived to hoodwink the Court. Therefore, the very fact that PW6 had purchased the mobile from the accused persons is itself in doubt, which is further potentiated by the fact that no CDR that the said mobile instrument was used by PW6 at Fateh Ganj, District Bareilly has been filed on the record.
30. Next in line is the testimony of PW10 Amar Gupta, who had allegedly purchased the mobile phone from PW6 in the Rs. 500/. He had also admitted in his crossexamination that no receipt was executed between him and PW6 for the purchase, which is surprising as he was himself running a mobile business at Fateh Ganj by the name of Gupta Mobiles and thereafter his story that no handing over document was handed over to PW6 and the mobile was given to Vikas Gupta PW11, who had borrowed the mobile phone as his mobile phone had broken down does not inspire confidence, as PW11 Vikas Gupta's testimony also does not inspire confidence, as he had stated that he had lost the mobile phone which he had borrowed from PW10 at Haridwar. He had borrowed the phone because his mobile had broken down.
However, he had not made any complaint regarding the loss of his SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 49 of 59 -50- mobile phone at Haridwar. Further, to corroborate this fact that PW10 and PW11 had also used the said instruments by inserting their own sim number has also not been proved by the prosecution by producing the CDRs of the same. In the absence of the same, this chain of testimonies regarding the passing over of the mobile phone of the deceased from one hand to another does not inspire confidence.
Further, the last in the chain is PW Manoj Singh, who as per the prosecution story was a taxi driver, in whose car PW11 had come for tourism purpose. He stated that the said mobile phone was lost by him i.e. PW11 in his taxi, which he had handed over to the police belonging to the Bling Company. This witness has not been examined as the said witness was not found traceable. Therefore, the entire chain of custody of the mobile phone of the deceased, as per the prosecution story starting from PW6 to PW10 to PW11 and then in the hands of the Investigating Officer does not stand prove.
Further, no TIP of the case property was got conducted i.e. of the mobile phone in this case, which would have also made the probative force of the prosecution case stronger. Therefore, taking into account the testimonies of the prosecution witnesses as a whole, the prosecution evidence on this circumstance does not inspire confidence, as the probative force of the prosecution evidence is quite low with regard to this circumstance, therefore, this circumstance (f) is decided in favour of the defence and against the SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 50 of 59 -51- prosecution.
31. Now the circumstances (g), (h) and (i) are taken up together as they are inter connected with each other. In this regard the examination in chief of PW33 ACP Vijay Rastogi is as under :
".......Thereafter, on 05.09.2013, HC Hitesh Joshi and HC Murari had again joined the investigation of the present case. On that day, accused Ravi Gupta got recovered one Romex watch with silver colour chain from the room of his house bearing no. D16, Deen Dayal Puri, 30 futa Road, Nandgram, Ghaziabad, UP. I had kept the said watch in a cloth pulanda and said pulanda was sealed with the seal of VKR and was seized vide seizure memo already Ex. PW16/R. I had also prepared the site plan already Ex. PW16/R1 of the said place of recovery, both bears my signatures at point X. Thereafter, on 06.09.2013, HC Hitesh Joshi and HC Murari had again joined the investigation of the present case. On that day, accused Satish got recovered one golden colour chain having locket of VK from the taand of the ground floor room of SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 51 of 59 -52- his house bearing no. D28/18, Shahbad Dairy. I had kept the said chain with locket in a cloth pulanda and said pulanda was sealed with the seal of VKR and was seized vide seizure memo already Ex. PW16/S. I had also prepared the site plan already Ex. PW16/S1 of the said place of recovery, both bears my signatures at point X. On the same day, all the accused persons lead us to ganda naala near St. Xavier School and pointed out the said place to be the place where they had thrown the body of deceased. I had prepared the pointing out memos Ex. PW16/K1 to Ex. PW16/K4 and site plan already Ex. PW16/K5 of the said place, all bears my signatures at point X. Thereafter, on the same day, all the three accused persons including JCL lead us to a vacant place near ganda naala near St. Xavier School and pointed out the said place where they had thrown their wearing clothes, which they worn at the time of commission of offence. All the three accused persons including JCL picked up their wearing cloths one by one i.e. their pants and shirts. I had kept the said clothes in separate cloth pulandas SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 52 of 59 -53- and said pulandas were sealed with the seal of VKR and were seized vide memos already Ex. PW16/L1 to Ex. PW16/L4. I had also prepared the site plan already Ex. PW16/L5 of the said place of recovery, all bears my signatures at point X......"
32. The other recovery witnesses on this aspect are PW16 HC Murari Lal and PW29 Ct. Hitesh Joshi, whose testimonies in this regard converges with the testimony of PW33 IO. However, admittedly in the present case, no recovery witness was joined at the time of recovery of watch and gold colour chain with locket nor any photographs or videography of the recovery proceedings were conducted by the IO. The IO also admitted that the similar type of locket and chain are easily available in the market.
He also stated in his crossexamination that till the time, the investigation of the present case remained with him, he had not got conducted the judicial TIP of watch, locket and chain. He has further admitted that till the investigation of the present case remained with him, the said articles were not identified by any family member of the deceased.
33. Further, there was no mention of the said articles belonging to the deceased when the inquest proceedings were conducted by the IO on 19.07.2013 vide Ex. PW26/A and Ex. PW26/B and also on SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 53 of 59 -54- 23.07.2013 when the statement(s) of Rajdev Ram Ex. PW1/A and statement of Mukesh Kumar Ex. PW2/A were recorded with regard to the dead body identification and for the first time, the information was given to the investigating agency regarding these articles on 31.07.2013 on the complaint made by the complainant Ex. PW13/A, which is an important omission.
The investigating agency could not give any reason why PW13 Sunil Kumar could not give the description of the articles belonging to the deceased, which were missing from his body when his dead body was identified by other relatives in the mortuary on 23.07.2013 and further no TIP of the said articles was got conducted by the IO through PW13 and any other family member of the deceased and PW13 has admitted that the said mobile phone, watch and golden colour chain were shown to him in the police station on 03.08.2013. Therefore, the chances of false implication of the accused persons by planting the said articles cannot be ruled out.
34. Regarding the recovery of the soiled clothes at the instance of the accused persons, the same also does not stand proved in view of the FSL report Ex. PW23/A whereby the soiled clothes of the accused persons, which they were allegedly wearing at the time of incident were sent for comparison with control soil sample taken from the ganda nala from where the dead body of the deceased was found lying. As per the FSL report Ex. PW23/A, it was opined as under :
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 54 of 59 -55- "On examination of soil samples from Exhibit1, Exhibit2, Exhibit3, Exhibit4 and Exhibit5 using microscope, 'VISPEC', by density gradient method and by Ignition test, following observations were made:
(i) Soil samples from Exhibit1 to Exhibit4 were found to be possessing similar physical characteristics to one another.
(ii) Soil in Exhibit1 to Exhibit4 were found to be possessing different physical characterstics when compared with soild in Exhibit5."
35. In view of the said report, since the Exhibit(s) 1 to 4 were found to be possessing different characteristics when compared with control soil sample Ex. P5 of the ganda nala, where the dead body of the deceased was found lying, the prosecution has failed to prove that the soiled clothes of the accused persons were matching with the smudge of the ganda nala, when they were disposing the dead body of the deceased, as the mud / soil with the clothes does not match with the soil quality of the ganda nala, where the dead body of the deceased was recovered. This fact also goes against the prosecution.
In view of the above discussion with regard to the circumstances SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 55 of 59 -56-
(g), (h) and (i) as made above, the probative force of the prosecution case on this aspect is quite low on the probative scales, where the probability of happening of any event is assessed or measured, therefore, the circumstance(s) (g), (h) and (i) are decided against the prosecution and in favour of the defence.
36. The legal inferences which can be drawn from the totality of the chain of circumstantial evidence and from the analyses of the evidence discussed above are (I), (II), (III) i.e. :
(I). That the accused persons may have found the Santro car bearing no. HR55Q70739 lying in abandoned condition with the belongings of the deceased.
(II). That the accused persons may have killed the victim (deceased) after robbing him of his articles / belongings as well as his Santro car as projected by the prosecution story; (III). That the accused persons may have been falsely implicated in this case by planting the articles i.e. mobile, watch, gold chain with locket which articles never belonged to the deceased as the said articles were never told to be missing, when the inquest proceedings were carried out on 23.07.2013 and on which date, the statement of the relatives were also recorded during the said inquest proceedings.
On the probative scales, the probability of happening of each of the above event is 1/3, (1 being the absolute probability) which would be 33% each i.e. there are circumstances, which militate against the SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 56 of 59 -57- culpability of the accused having probative force or probability of 2/3 or 66% i.e. of their innocence and the circumstances which favours the conviction of the accused persons or their culpability is 1/3 or 33%.
Therefore, there is stronger probability of innocence of the accused persons rather than their culpability from the above logical inferences.
37. Applying the principle laid down in the judgment in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Supra), and also the judgment of Hon'ble Supreme Court in Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091=AIR 1952 SC 343 (Supra), I am of the considered view that the prosecution has failed to prove the entire chain of circumstantial evidence beyond any reasonable doubt, by unimpeachable evidence by aforesaid chain of circumstances as discussed above, which is not complete, which only leads to the conclusion, that it was the accused persons, who had committed the murder of deceased Vijay and none else. The circumstantial evidence lead on the record, is absolutely inconsistent and incompatible with the culpability of the accused persons that it was only the accused persons who might have committed the aforesaid ghastly act of murder of deceased Vijay. Therefore, the prosecution has failed to prove the case against the accused persons beyond realms of doubt i.e. to say beyond SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 57 of 59 -58- reasonable doubt.
38. To Sum up:
From the aforesaid analysis of evidence, the probability of the innocence of the accused persons is much stronger i.e. 2/3rd or 66%, whereas the probability of culpability of the accused persons is less i.e. 1/3rd or 33%, therefore, the probative force of the defence version is much higher than the probative force of the prosecution case thereby favouring the innocence of the accused persons and on such kind of inverted or unsafe evidence, the prosecution case cannot succeed. Consequently, all the accused persons namely Jai Singh @ Hariom, Ravi Gupta and Satish are acquitted for the offence(s) u/S. 302/201/392/394/411/34 IPC by giving them benefit of doubt.
39. The previous bail bonds of all the accused persons namely Jai Singh @ Hariom, Ravi Gupta and Satish are cancelled. Previous sureties stand discharged. Original document(s), if any, be returned after cancelling the endorsement(s), if any, on the same, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC. The abovesaid accused persons have already furnished their bail bonds in compliance of Section 437A Cr.P.C, which will remain valid for a period of six months from today, as per the provisions of Section 437A CrPC.
SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 58 of 59 -59-
40. All the accused persons namely Jai Singh @ Hariom, Ravi Gupta and Satish be released from JC, if not required in any other case.
41. File on completion be consigned to record room.
Announced in the open Court (Sanjeev Aggarwal) on 25th day of April 2019. Addl. Sessions Judge02,North Rohini Courts, Delhi 25.04.2019 SC No. 57911/16; FIR No.399/13; PS Shahbad Dairy State Vs. Jai Singh & Ors. Page No. 59 of 59