Delhi District Court
State vs Ram Gopal Rai on 14 October, 2023
IN THE COURT OF SH. VIRENDER KUMAR KHARTA
ADDITIONAL SESSIONS JUDGE (FTC)-02/CENTRAL DISTRICT:
TIS HAZARI COURTS : DELHI
In the matter of:-
(Sessions Case No. 28148/2016)
FIR No. 97/2012
Police Station Prasad Nagar
Charge-sheet filed Under Section U/s 302/201/120 B/ 419/420/471/34
IPC
Charges framed against accused U/S 120 B IPC and 302 r/w 120 B
Ram Gopal Rai @ Ram Iqbal Rai IPC
Charges framed against accused U/S 120 B IPC, 302 r/w 120 B IPC
Sanjay Yadav and 420/471 IPC
Charges framed against accused U/S 120 B IPC, 302 r/w 120 B IPC
Seema Devi and 420/471 IPC
State Vs 1. Ram Gopal Rai @ Ram Iqbal Rai
S/o Mukhay Rai
R/o Village Chitahi, PS Kalwai, Post
Chachraha, Block Basopatti, Distt.
Madhubani, Bihar.
2. Sanjay Yadav
S/o Ram Preet Yadav
R/o Village Lurka, Devri near Uchisht
Durga Sthan PS Benipatti Distt.
Madhubani Bihar
3. Seema Devi
W/o Raj Kumar,
R/o Village -Amorpastor Post
PS Sai Distt. Barelli Uttar Pradesh.
......Accused persons
FIR No. 97/2012 , PS: Prasad Nagar,
State Vs. Ram Gopal Rai & Ors. Page No 1 of 75
Date of institution of case 01.09.2012
Date of arguments 07.10.2023
Judgment Pronounced on 14.10.2023
Judgment reserved on 14.10.2023
Decision Convicted
J U D G M E N T:-
1. Accused persons namely Ram Gopal Rai @ Ram Iqbal Rai, Sanjay Yadav and Seema Devi are facing trial U/s 120 B IPC and U/s 302 IPC read with 120 B IPC.Additionally, accused persons namely Sanjay Yadav and Seema Devi are also facing trial under Sections 420/471 IPC. The prosecution story is that on or before 12.05.2012 all the abovesaid accused persons conspired together to commit murder of deceased Lakhan Singh and in pursuance of said conspiracy entered by all of them, murder of deceased Lakhan Singh was committed on the intervening night of 12-13.05.2012 by accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav. It is further alleged that accused persons namely Seema Devi and Sanjay Yadav obtained Sim Cards in name of other persons by using fake documents and cheating the owners of mobile phones shop owners.
2. The brief facts which are borne out from the record of the case are that on 14.05.2012 on receiving DD no. 64 B, first IO SI Pawan Kumar alongwith Ct. Rakesh went to the spot i.e. in front of house no. 16/181 E-Tank Road, Bappa Nagar, Karol Bagh Delhi where one plastic katta was lying from which the foul smell was coming and blood was oozing.
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 2 of 75 The said plastic katta was opened and one dead body of a male aged about 25-30 years which had started decomposing was found. One bichona, One handle of scissors, one pink colour ladies skirt and one plastic candy jar was also found in the said katta. The photographs of the dead body were taken and the dead body was sent to mortuary for preservation and the articles recovered with the dead body were seized by the IO.
3. Thereafter IO prepared a rukka on the basis of present FIR was registered. The identity of the dead body could not be established. On 21.05.2012, the post mortem of the dead body was conducted. During the post mortem of the dead body, name of deceased Lakhan Singh Sharma was found engraved on his right forearm and one heart shape tattoo was also found engraved on his chest. The photographs of the dead body were taken showing the said engraved tattoo and name. After the post mortem the dead body cremated by the Police Authorities.
4. On 22.05.2012, PW-2 Sh. Shiv Kumar Sharma identified the dead body on the basis of photographs through the clothes of deceased Lakhan Singh and told the IO that on 12.05.2012 he had seen deceased Lakhan Singh at Padam Singh Road, Sabzi Mandi, Bappa Nagar with two persons one of which was accused Ram Gopal Rai @ Ram Iqbal Rai and his statement in this regard u/c 161 Cr.P.C was recorded by the IO on the same day i.e. On 22.05.2012. On 23.05.2012 PW-3 Smt Premwati, on receiving information regarding recovery of dead body, came to Delhi and identified the deceased as her husband Lakhan Singh FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 3 of 75 through the photographs in which the name of deceased was engraved on his right forearm and the heart shaped tattoo on his chest. PW-3 Premwati stated to the IO that her husband deceased Lakhan Singh had illicit relationship with one Seema and she had quarrel with Seema on the said issue and Seema had threatened her that she will get Lakhan Singh killed and nobody will be able to trace his dead body.
5. On 25.05.2012, accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav were arrested by the IO and their disclosure statement was recorded. On the basis of disclosure statement the weapon of offence i.e. Bellan, blood stained bichona and one handkerchief was recovered. The purse of deceased was also recovered from possesion of accused Sanjay Yadav. Accused Seema was also arrested by the IO. Disclosure statement of accused Seema was also recorded. Accused persons namely Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav refused for their TIP. During the investigation, the CAF, CDR and location ID charts of the mobile phones used by the accused persons were collected by the IO. Other proceedings during the investigation were also conducted by the IO. On completion of investigation, chargesheet was filed by the IO before the Court through the SHO. Supplementary charge sheet was also filed in the Court by the IO through SHO.
6. Vide order dated 28.08.2012, copy of the charge-sheet under Section 207 Cr.P.C was supplied to the accused persons and the case was committed to the Court of Sessions u/s 209 Cr.P.C.
7. Vide order dated 27.09.2012 the Ld. Predecessor Court framed charges FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 4 of 75 against all the accused persons U/s 120 B IPC and 302 IPC r/w 120 B IPC. Separate charges U/s 420/471 IPC were also framed against accused Sanjay Yadav and Seema Devi. Accused persons pleaded not guilty and claimed trial.
8. To prove its case, prosecution has examined 38 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
9. PW-1 Ram Kishan is the duty officer who proved FIR no. 97/2012 Ex. PW1/A alongwith endorsement on rukka Ex. PW1/B.
10. PW-2 Sh. Shiv Kumar Sharma is friend of deceased Lakhan Singh who identified his dead body for the first time on 22.05.2012. He deposed that on 12.05.2012 at about 10-10:30 PM at Padam Singh Road, Sabzi Mandi, Bappa Nagar, he saw deceased Lakhan Singh alongwith two persons out of which one was accused Ram Gopal Rai @ Ram Iqbal Rai. He identified both the accused persons in the Court during the trial. He deposed that he identified the deceased on the basis of T-shirt worn by him on 12.05.2012 when he lastly saw him alive. He also deposed that he had told the description of accused to the IO. In his cross-examination he deposed that on 12.05.2012 he had gone to repair the lock of shop of one Sh. Goyal at Tank Road. He denied the suggestions that he did not see deceased Lakhan Singh with accused persons.
11. PW-3 Smt Premwati @ Mamta is the wife of deceased Lakhan Singh. She deposed that her husband deceased Lakhan Singh was working as Carpenter at Bappa Nagar and she alongwith her husband FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 5 of 75 started residing at Bappa Nagar but after some time her husband deceased Lakhan Singh did not use to come in night and on suspicion she started chasing him. She also deposed that one day she saw her husband entering the house of accused Seema and thereafter she asked Seema as to why she was doing all this and she had seen a joint photograph of deceased Lakhan Singh and accused Seema at the house of accused Seema. She further deposed that she made enquiry from the landlady of accused Seema who told her that Seema was residing there with her husband Lakhan Singh Sharma on which quarrel had taken place between her and accused Seema on which accused Seema had asked her to stop Lakhan Singh if she could. She also deposed that during the quarrel, the landlady had intervened to separate her from accused Seema.
12. She also deposed that one day accused Seema met her at Sabzi Mandi at Padam Singh Road and at that time accused Ram Gopal Rai @ Ram Iqbal Rai was also with her. She further deposed that at that time accused Seema had threatened her either to take away deceased Lakhan Singh from there otherwise she would get him killed and she would not even able to get his dead body. She further deposed that after the said incident she alongwith her children shifted to Rudrapur, Uttarakhand but her husband deceased Lakhan Singh did not accompany them though he came there next day and thereafter they started living together.
13. She further deposed that on 10th of a month in 2012 her husband deceased Lakhan Singh left house by saying that he was going on job FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 6 of 75 but he did not return in the evening. She further deposed that mobile no. of deceased Lakhan Singh was 9650561856. She further deposed that on 12th day of said month, Ramu, son of her landlord told her that deceased Lakhan Singh had made a call to him on his mobile phone and had told him that he was in Delhi and would come by next day but he did not return. She also deposed that on 23rd day of the said month, one Suresh made a call to her and told her that one dead body was recovered in a bag at Bappa Nagar, Delhi and on the forearm of said body Lakhan Singh Sharma was engraved and on chest also one heart shape tattoo was found engraved. She further deposed that she came to Delhi and identified the dead body of her deceased husband Lakhan Singh in the photographs on the basis of engraved name and Tatoo.
14. PW-3 Smt Premwati @ Mamta further deposed that she had suspicion over accused Seema. She also identified the joint photograph of accused Seema and deceased Lakhan Singh Ex. PW3/A which was handed by her to the police and same was seized by the police vide seizure memo Ex. PW3/B. She also correctly identified the clothes of deceased Lakhan Singh Ex. P-1. She also identified accused Ram Gopal Rai @ Ram Iqbal Rai and Seema in the court during the trial. In her cross-examination PW-3 Smt Premwati @ Mamta deposed that earlier accused Seema resided with her husband in their neighbourhood for two months to two and a half months and after quarrel with her husband accused Seema started residing at Maujpur separately. She also deposed that she did not lodge any complaint after her quarrel with the accused Seema. She denied the suggestion that accused Seema did FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 7 of 75 not meet her at Sabzi Mandi or that she had not given any threat to kill her husband. She also deposed that accused Seema was her bhabhi in her relation. She also deposed that she had seen her husband Lakhan Singh and Seema in compromising position.
15. PW-4 Love Deepak @ Vipin is the witness of recovery of weapon of offence i.e. belan, one handkerchief and blood stained bichona. He deposed that on 25.05.2012 he was present at water tank situated at Bappa Nagar and at that time police came there alongwith two person in custody and due to curiosity he also reached there. He further deposed that accused persons had pointed out towards broken wall and from there accused persons produced one bedsheet (bichona) which had blood stains and some hairs and opening the said bichona one hankey and one belan was also found. He further deposed that the police had seized the said articles in a white cloth and had sealed the same. He also deposed that police had also seized the earth control from there. He also proved the seizure memo of said articles Ex. PW4/A. He also identified the seized articles i.e. bichona, belan and the hankey exhibit as P-2 to P-4. He also correctly identified the accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav in the Court.
16. In his cross-examination, Love Deepak @ Vipin deposed that he used to sit at the office of his brother near the spot of recovery. He denied the suggestion that police did not recover the above said articles in his presence.
17. PW-5 Sh. Om Prakash deposed that he was carpenter by profession and he knew deceased Lakhan Singh. He further deposed that on FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 8 of 75 23.05.2012, he came to know that one dead body was found in a bori and on the forearm of said body word 'Lakhan Singh Sharma' was engraved. He further deposed that he made a call to his brother Suresh, who was residing at Rudrapur to inquire at house of Lakhan Singh at Rudrapur and in the evening wife of deceased Lakhan Singh namely Premwati came to Delhi and he as well as Premwati identified deceased Lakhan Singh Sharma through photographs. He also identified the photograph Ex. PW5/1 to Ex. PW5/A. In his cross-examination, PW-5 Om Prakash deposed that one Raju had told him about the recovery of dead body.
18. PW-6 Sh. Virender Sharma is brother of deceased Lakhan Singh. He deposed that Lakhan Singh was written on the right arm of deceased Lakhan Singh and word Dil was also written on his chest. In his cross- examination Ld. Addl. PP for the State he admitted that Lakhan Singh Sharma was written on his forearm and shape of heart was engraved on his chest. He identified photographs of deceased Lakhan Singh Ex. PW5/1 to Ex. PW5/A. This witness was cross-examined on behalf of accused persons but no contradictions came on record in the said cross- examination.
19. PW-7 Smt Kusum is bhabhi of deceased Lakhan Singh. She deposed that she alongwith Premwati, her husband, Mevaram and Sita Ram came to Delhi on 23.05.2012 and from the photograph, she identified Lakhan Singh. She also deposed that Premwati had told her that Lakhan Singh had illicit relationship with accused Seema. This witness was cross examined on behalf of accused but no contradictions came on FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 9 of 75 record in the said cross-examination.
20. PW-8 Hari Om deposed that he had not purchased the mobile Sim Card having no. 8130974184. He further deposed that photo affixed on the customer application form Ex. PW8/A was not his but the copy of driving license Ex. PW8/B belonged to him. This witness was not cross examined by the accused persons despite opportunities given to them.
21. PW-9 Smt Kamla Devi is the landlady of deceased Lakhan Singh and accused Seema Devi. She deposed that accused Seema and Lakhan Singh were her tenant and they were residing there with their three children and they had told her that they were husband and wife. She further deposed that after few days another female came there and claimed herself as real wife of Lakhan Singh and then she came to know that accused Seema was not real wife of Lakhan Singh. She further deposed that quarrel had taken place between accused Seema and the said lady and thereafter she got vacated her house. She correctly identified accused Seema in the court. In her cross- examination she denied the suggestions that Lakhan Singh was not residing with accused Seema at her house.
22. PW-10 Ram Chander is a shopkeeper of packaging material. He deposed that on 13.05.2012 police came to his shop with a boy and inquired whether the said boy had purchased polythene from him as the said boy had told the Police that he had purchased polythene from him. In her cross-examination by the Ld. Addl PP for the State he deposed that he got remembered that the said boy i.e. accused Sanjay visited his FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 10 of 75 shop on 13.05.2012 in the afternoon and asked for big plastic polythene. In his cross-examination he deposed that he did not issue cash memo to retail customers. He also deposed that earlier he did not remember whether accused had purchased polythene but when the police brought him to his shop he identified him after seeing him and recollected that he had purchased polythene from his shop.
23. PW-11 Ramu Sharma is the landlord of deceased Lakhan Singh at Rudrapur, Uttarakhand. He deposed that deceased was his tenant approximately from the Month of March 2012 to May 2012. He further deposed that he lastly met with deceased Lakhan Singh in May 2012. He further deposed that in month of May 2012 deceased Lakhan had made call to him in afternoon on his mobile phone 8273940983 and he had told him that he would be reaching Rudrapur tomorrow and in the meantime the mobile of Lakhan was taken by another person who told him that Lakhan Singh would reach tomorrow. He deposed that the date of said conversation was either 11.05.2012 or 12.05.2012 and he had informed the wife of Lakhan Singh about the same. He further deposed that thereafter wife of Lakhan Singh made call to him from his mobile phone but his mobile phone was switched off and thereafter deceased Lakhan Singh did not come and he came to know that Lakhan Singh had died. In his cross examination PW-11 Ram Sharma deposed that he did not remember whether Premwati had any mobile phone but he had not seen any mobile phone with him. He also denied the suggestion that the tone of the person who took phone from Lakhan was not of Bihari.
24. PW-12 Govind Gupta is the seller of old bories/bags. He deposed that FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 11 of 75 on 13.05.2012 police came to his shop alongwith two boys and the boy having Saawla colour told the police that in his presence that he had purchased plastic bori from his shop. In his cross-examination by the Ld. Addl. PP for the State , he deposed that accused Sanjay had purchased bori from his shop. In his cross-examination he deposed that firstly accused Sanjay told the police that he had purchased plastic bag from his shop and thereafter he identified him. He admitted that such types of bags are available in the market.
25. PW-13 Ashok deposed on 15.05.2012 accused Ram Gopal Rai @ Ram Iqbal Rai met him in the Gali and he was making inquiry whether any room was available on rent. He further deposed that he got a room on rent for Ram Gopal Rai @ Ram Iqbal Rai through his employer Deep Chand. He further deposed that accused Ram Gopal Rai @ Ram Iqbal Rai resided at the said room with his wife and child for about 05 days. In his cross-examination by Ld. Addl. PP for the State he admitted that wife of Ram Gopal did not come alongwith accused Ram Gopal on 15.05.2012 and he told that he would bring his wife from Bihar. In his cross-examination on behalf of accused persons he denied that he did not meet accused Ram Gopal Rai @ Ram Iqbal Rai at any point of time and Ram Gopal Rai @ Ram Iqbal Rai was not tenant at any point of time.
26. PW-14 Anil Kumar is the son of owner of House no. 16/181 E, Bappa Nagar. He deposed that on 14.05.2012 one bora from which foul smell was coming, was lying near the iron stairs of the said house and the blood was also coming out of the bora. Thereafter he made a call at 100 FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 12 of 75 number. He further deposed that one dead body was recovered from the said bora. He further deposed that police had seized bichona, lady skirt,candy jar, handle of scissor, hankey, bora and polythene etc. He proved the documents in this regard Ex. PW14/A to Ex. PW14/B. He also identified the photograph of dead body Ex. 5/1 to Ex. 5/8 and mark Ex. 14/G1 to Ex. 14/G26. He also identified the bori Ex. P-7 skirt Ex.P- 8, hankey Ex. P-9 handle of scissor Ex. P-10. This witness was cross- examined on behalf of accused persons but nothing material in favour of accused persons came on record.
27. PW-15 Sh. Rajender Kumar is the owner of House no. 16/334 E. He deposed that accused Ram Gopal Rai @ Ram Iqbal Rai was his tenant and he was residing at the abovesaid house at fourth floor. He further deposed that he resided there for about three months and vacated the same on 16.05.2012. In his cross-examination he deposed that he had stated to the police that Ram Gopal Rai @ Ram Iqbal Rai told him on phone that his wife would be coming which was confronted with his statement.
28. PW-16 Sh. Lakhmi Chand deposed that he knew deceased Lakhan and Lakhan used to visit his house in connection with work as well as a friend. He deposed that deceased Lakhan Singh was having mobile and he did not know what documents accused Lakhan Singh had given at the time of purchasing the said Sim Card. After seeing the documents he deposed that voter ID card was of his but the photograph thereon was not his in the customer application form. He also deposed that the FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 13 of 75 customer application form inadvertently his name was mentioned as Yakhmi Chand instead of Lakhmi Chand. In his cross-examination on behalf of accused persons he denied the suggestions that Lakhan had not used his voter ID card Ex. PW16/A at the time of taking SIM Card.
29. PW-17 Sh. R.K Singh is the Nodal Officer of Bharti Airtel Ltd. He proved the CAF, CDR and location ID chart of Mobile phone no. 9650561856 issued in name of Yakhmi Chand Ex. 17/A to Ex. 17/C. As per prosecution story his mobile phone was being used by deceased Lakhan Singh. He deposed that as per CDR the abovesaid subscriber had received two incoming calls from mobile phone no. 8802613580 (allegedly used by accused Sanjay Yadav) on 12.05.2012 at 20:19:31 and 21:22:05 and there was no outgoing call from the said subscriber. He also proved the CDR, CAF and location chart of the mobile phone no. 8130974184 (allegedly used by accused Seema) Ex. PW8/A, Ex. PW17/C and Ex. PW17/D. He also proved certificate u/s 65-B Evidence Act with respect to the abovesaid CDRs. He deposed that the said Sim Card was issued in the name of one Hari Om. He further deposed that as per CDR Ex. PW17/D on 12.05.2012 to 14.05.2012 to the mobile subscriber of 8802613580 and the abovesaid subscriber were in touch with each other. In his cross-examination he deposed that the range of cell ID tower is 0 to 3 Km.
30. PW-18 Sh. Sanjeev Gupta deposed that Sim Card having mobile connection no.8130974184 was supplied by his firm to M/s New Style Mobile and the said connection was activated from mobile phone no. 9818857161 which was issued in the name of M/s New Style and the FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 14 of 75 said mobile phone was activated for the first time on 12.05.2012 and the customer had charged the same with a value of Rs. 107. In his cross-examination he admitted that when a retailer sells a mobile connection to any customer he verifies the ID proof documents of the customer and checks the photograph of the customer from the ID proof document.
31. PW-19 Sh. Shishir Malhotra, the Nodal Officer of Aircel Ltd., proved the CDR, CAF and cell ID chart of mobile phone no. 8802613580 (allegedly used by accused Sanjay Yadav) Ex. PW19/A to Ex. PW19/D. He also furnished certificate u/s 65-B Indian Evidence Act Ex. PW19/E. In his cross-examination he denied the suggestion that CDR is manipulated and fabricated./
32. PW-20 Ct Ghanshyam deposed that on 14.05.2012 duty officer HC Ram Kishan handed over him three envelops which were delivered by him to Ld. Ilaka Magistrate, DCP and ACP. Nothing material came on record in his cross-examination.
33.PW-21 SI Pankaj Kumar deposed that on 14.05.2012 he was posted as Incharge Crime Team and he alongwith his team went to spot 16/181 E Tank Road Bappa Nagar Delhi. He further deposed that after inspecting the spot of incident and Ct Vinay Kumar took the photograph of the bora and dead body in decomposed position. He proved his inspection report Ex. PW21/A.He also deposed that 26.05.2012, he went to house no. 16/334 4th Floor Bappa Nagar karol Bagh at instance of IO Inspector Harish. He deposed that some brown marks on the wall of the room were noticed and the samples were taken FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 15 of 75 and HC Tara Chand took the photographs of the said spot. He proved his report Ex. PW-21/B in this regard. He also identified the photographs on record. In his cross-examination, he deposed that he did not notice whether any occupants of ground floor, first floor, second floor, third floor or fourth floor of the premises met them on 26.05.2012. He also deposed that he cannot tell whether the brownish mark were in the corner of wall or in the center of the wall. He also admitted that there was no photographs on record which may show that the room was totally empty.
34.PW-22 Ct. Vijay Kumar deposed that on 14.05.2012 he was posted at Crime Team, Central District and he alongwith SI Pankaj Kumar went to the spot situated near 16/181 E, Tank Road, Bappa Nagar, Karol Bagh where he took the photographs of the spot. He proved the photographs alongwith negatives Ex. PW-5/5 to Ex. PW-5/A, Ex. PW- 14/G11, Ex. PW-14/G13 to Ex. PW-14/G26. He also deposed that on 21.05.2012, he went to the mortuary of MAMC where he took 07 photographs Ex. PW-5/1 to Ex. PW-5/4 and Ex. PW-14G/1 to Ex. PW- 14G/3. He deposed that on the lines of PW-21 SI Pankaj Kumar. In his cross-examination, no material contradiction came on record.
35.PW-23 HC Tara Chand deposed that on 26.05.2012 he alongwith SI Pankaj went to 16/334 E 4th Floor, Tank Road, Bappa Nagar, Karol Bagh where he took the photographs. He proved the photographs alongwith negatives Ex. PW14/G4 to Ex. PW14/G10, Ex. PW-14/G12. In his cross-examination he deposed that he went to the spot at around 10:40 AM and remained there for about 30-40 minutes. He further FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 16 of 75 deposed that he did not take the photographs of the outer wall of the room as he was not asked by the IO. He deposed that the brownish mark were found on the left and right side of the wall of room.
36. PW-24 Inspector Mahesh Kumar proved the scale site plan Ex. PW- 24/A of the spot of incident i.e. premises no. 16/334 E 4th Floor, Tank Road, Bappa Nagar, Karol Bagh. Nothing material contradiction came on record in the cross-examination of Inspector Mahesh Kumar.
37.PW-25 HC Pratap Singh is Duty Officer. He proved the DD entry 64 B dated 14.05.2012 Ex. PW-25/A, DD entry no. 26A dated 15.05.2012 Ex. PW-25/B and DD entry 7A Ex. PW-25/C dated 23.05.2012. This witness was not cross -examined despite opportunities granted to the accused persons.
38.PW-26 SI Meghraj deposed that on 26.05.2012 on direction of SHO PS Prasad Nagar he took both the children of accused Seema to Salam Balak Trust, Nabi Karim and he made DD entry 52 B Ex. PW-26/A and on 18.06.2012 both the children were produced before CWC and the custody was handed over to their father Raj Kumar by CWC.
39.PW-27 HC Devender Singh is the MHC(M). He proved the entries made by him in the register no. 19 and 21 Ex. PW-27/A to Ex. PW-27/F . In his cross-examination he admitted that SHO has not signed register no. 19 nor he had inspected the same at any point of time.
40. PW-28 Sh. Vishal Gaurav, is the Nodal Officer Bharti Airtel Ltd. He produced and proved the CDR, CAF and cell ID chart of mobile phone no. 8130883799 (allegedly used by accused Ram Gopal Rai @ Ram Iqbal Rai) which was issued in name Ekaval Rai S/o Murk Ray FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 17 of 75 alongwith certificate u/s 65-B of The Indian Evidence Act Ex. PW-28/A to Ex. PW-28/E. He also produced and proved the CDR, CAF and cell ID chart of mobile phone no. 8826627994 which was issued in name Seema Devi (accused) alongwith certificate u/s 65-B of The Indian Evidence Act Ex. PW-28/F to Ex. PW-28/J. He also produced and proved the CDR, CAF and cell ID chart of mobile phone no. 9818857161 (allegedly used by accused Sanjay Yadav) which was issued in name of one Jahangir Alam alongwith certificate u/s 65-B of The Indian Evidence Act Ex. PW-28/A to Ex. PW-28/N.
41.PW-29 Ct Zile Singh deposed that on 14.05.2012 he alongwith SI Mangej took the dead body of deceased to mortuary and on 21.05.2012, the post mortem of dead body was conducted and the doctor handed over him the sealed pulandas which were handed over by him to IO and IO seized the same vide seizure memo Ex. PW-29/A. He also deposed that on 05.06.2012 he collected 18 pulandas and 05 sample seals from MHC(M) and deposited the same at FSL,Rohini and the pulandas remained intact while these were in his possession. No material contradictions came on record in his cross-examination.
42. PW-30 Ct Rakesh, deposed that on 15.05.2012 he was posted at PS Prasad Nagar and on that day he handed over the copy of DD no. 64 B to the SI Pawan and thereafter he alongwith SI Pawan went to the spot situated near House no. 16/181 Tank Road, Bappa Nagar where dead body of deceased Lakhan Singh was found in a bori. He narrated the proceedings conducted by the IO near the spot of incident. He also deposed about the proceedings conducted by IO on 25.05.2012 and FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 18 of 75 26.05.2012. In his cross-examination he deposed that for the first time they came to know from accused Ram Gopal Rai @ Ram Iqbal Rai that alleged murder had taken place at house no. 16/334 E. He also deposed that the distance between the place where the murder was allegedly committed and the place from where the dead body was recovered was between 250-300 metres. He denied the suggestions that nothing was recovered from the possession of accused persons or that no disclosure statement was given by them.
43.PW-31 Dr. Jitin Bodwal conducted the post mortem of deceased Lakhan Singh. He deposed that during post mortem as many as 07 external injuries were found on the body of deceased. He proved his post mortem report Ex. PW-31/A and opined that the death was caused due to the intra-cranial haemorrhage consequent upon blunt force trauma to head by a injury no. 1 to 7 which were sufficient to cause death in ordinary course of nature. He also deposed that he had collected dry blood and tooth for DNA and skin of all 10 fingers which were preserved and handed over to the IO. He also deposed that on 16.04.2013 he examined the weapon of offence i.e. wooden belan and opined that injury no. 1 to 7 found on the dead body could be cause by the said weapon and any weapon similar to it vide his report Ex. PW- 31/B. He also proved the sketch of belan Ex. PW-31/C. In his cross- examination PW-31 Dr. Jitin Bodwal deposed that there is every possibility that blood , hair cell of the body would appear on the belan if 7 blows were given by the said wooden Belan on the head of deceased. He also deposed that the decomposition of the body start FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 19 of 75 after 48 hours and when the body is preserved in the mortuary the process of decomposition becomes very slow. He also deposed that as per the injuries deceased must have died instantaneously.
44.PW-32 Ms. Sunita Gupta, Sr. Scientific Officer, Biology proved the serological report Ex. PW-32/A prepared by her. In her cross- examination she deposed that she cannot tell whether the blood B group found on the exhibit was B negative or B positive.
45. PW-33 Ms. L. Babyto Devi Assistant Director Biology FSL proved the DNA report Ex. PW-33/A. This witness was not cross-examined by the accused persons despite the opportunities given.
46. PW-34 W/Ct Seema deposed that on 26.05.2022 she joined the investigation in the present case. She narrated the proceedings conducted by the IO on 26.05.2012 with respect to the arrest, personal search of accused Seema Devi. She also deposed that mobile phone of blace colour make spice containing one SIM card was recoverd from possession of accused Seema. She identified the said mobile phone in court during trial Ex. as P-34/P-1. She also deposed about the disclosure statement of accused Seema and recovery of mobile phone from her. In her cross-examination she deposed that inhabitants of the building were asked to join the investigation by the IO but none agreed.
47. PW-35 SI Pawan Kumar deposed that on 14.05.2012 on receiving DD no. 64 B he alongwith Ct Rakesh went to the spot situated near house no. 16/181 E Tank Road, Bappa Nagar where one dead body was found in the plastic katta. He deposed about the proceedings conducted at the spot and the preparation of rukka by him on basis of which FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 20 of 75 present FIR was registered. He also deposed about the proceedings conducted by IO Inspector Harish Kumar. He deposed on the lines of IO Inspector Harish Kumar with respect to the proceedings conducted during the investigation of present case. This witness was cross- examined at length.
48. PW-36 Inspector Harish Kumar is the IO of the present case. He deposed about the proceedings conducted by him during the investigation of the case. He deposed that the dead body could not be identified and he made efforts to get the dead body identified . He also deposed that 21.05.2012 post mortem of the dead body was conducted and thereafter the dead body was cremated. He also deposed on 22.05.2012 he had shown the photographs of deceased to public persons in Bappa Nagar area and one Shiv Kumar Sharma identified the deceased who told him that on 12.05.2012 at about 10:30 PM he had seen deceased Lakhan Singh with two persons one of which was Gopal. He also deposed on 23.05.2012 Premwati @ Mamta wife of deceased Lakhan Singh came to Delhi and he recorded her statement. He also deposed that Premwati @ Mamta told him that her husband deceased had illicit relationship with one Seema. He also deposed that Premwati disclosed the mobile phone of deceased Lakhan Singh as 9650561856. He deposed that he collected the CDR of deceased Lakhan Singh.
49. PW-36 Inspector Harish Kumar also deposed about the arrest of accused persons and the recovery of articles from their possession/at their instance. He also deposed that accused persons Ram Gopal Rai @ FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 21 of 75 Ram Iqbal Rai and Sanjay Yadav refused to participate in TIP proceedings. He also deposed about the analysis of CDRs of the mobile phones used by the deceased and the accused persons. He proved all the documents prepared by him during the investigation. He also identified the case property and accused persons in the Court. This witness was cross-examined at length on behalf of the accused persons. In his cross- examination he deposed that the clothes of deceased were seized by the Doctor who conducted the post mortem. He denied the suggestion that from 14.05.2012 to 21.05.2012 he had not seen the dead body and that is why he had not seen the word and sign written on the hand and chest of dead body. He admitted that the photograph which was produced by Premwati was not sent to FSL. He denied the suggestion that accused persons were using only the Sim cards which were issued in their names and none else. He denied the suggestion that no recovery was made at instance of accused persons.
50.PW-37 Sh. Chandra Mohan, Ld. MM proved the TIP Proceeding Ex. PW-37/A to Ex. PW-37/E conducted by him. This witness was not cross-examined on behalf of accused persons.
51. PW-38 Sh. Subesh Singh @ Sudesh Singh deposed that he had not taken any mobile connection on his voter ID. After going through the customer application form Ex. PW-19/A he deposed that the photograph and the signature on the said CAF was not his but the voter ID card Ex. PW-19/B belongs to him. He denied the suggestion that he had taken mobile phone connection bearing no. 8802613580 in his name and photographs and signatures appearing on the CAF Ex. PW-
FIR No. 97/2012 , PS: Prasad Nagar,
State Vs. Ram Gopal Rai & Ors. Page No 22 of 75
19/A belongs to him.
52. After closing of Prosecution Evidence, separate statements of the accused persons namely Ram Gopal Rai @ Ram Iqbal Rai @ Ram Iqbal Rai, Sanjay Yadav and Seema Devi were recorded u/s 313 Cr.PC, wherein they denied all the charges against them. They also stated that they are innocent and have been falsely implicated in the present case by the IO.
53.Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. Puneet Jaiswal, Ld. Counsel for accused Ram Gopal Rai @ Ram Iqbal Rai, Sh. Aparval Singh, Ld. Counsel for accused Sanjay and Sh. Srikant Sharma, Ld. Counsel for accused Seema Devi.
54.Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that the motive of murder of accused has been proved by the prosecution through the testimony of PW-3 Smt Premwati @ Mamta, CDR, joint photograph of accused Seema and deceased Lakhan Singh and statement of PW-9 Smt. Kamla Devi. He also argued that the recovery of articles has also been duly proved by the prosecution through independent public witness i.e. PW-4 Sh. Love Deepak @ Vipin. He also argued that the accused was lastly seen alive in the company of accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav and they have not given any explanation in this regard. He also argued that accused persons have not FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 23 of 75 taken any specific defence and their replies to the questions put to them u/s 313 Cr.P.C are evasive in nature. He also argued that the chain of circumstantial evidence in the present case is complete. He also argued that the possession of mobile phones having specific numbers by the accused persons and the fact that they were in touch with each other as well as with the deceased has also been proved by the prosecution. He argued that the prosecution has proved its case against accused persons under the Sections under which charges have been framed against them beyond reasonable doubt and hence accused persons should be convicted under all the Sections of Law under which charges have been framed against them.
55.Ld. Counsels for accused persons argued that accused persons have been falsely implicated in the present case. They argued that the present case is based on circumstantial evidence and prosecution has failed to prove the complete chain of circumstances against the accused persons. To substantiate their points they argued that the deceased was identified not on basis of his appearance but on the basis of his T-Shirt and the tattoos. They also argued that the date and time of death of deceased is not certain. They further argued that nothing incriminating has come on record against the accused persons. They also argued that the alleged mobile phone numbers were not in name of accused persons and they were not using the said mobile phone at the relevant time. He also argued that the recovery of articles from at instance of accused persons is disputed. They also argued that the photograph of deceased Lakhan Singh and accused Seema Devi was not sent to FSL. They argued that FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 24 of 75 prosecution has failed to prove its case against the accused persons beyond reasonable doubt and hence the accused persons should be acquitted under all the Sections under which charges have been framed against them.
56.Charges U/s 120 B IPC and 302 IPC r/w 120 B IPC have been framed against accused persons. Separate charges U/s 420/471 IPC have also been framed against accused Sanjay Yadav and Seema Devi. These Sections have been elaborated as follows:-
57.Section 120-B IPC provides punishment for criminal conspiracy which has been defined U/s 120 A IPC which reads as under:-
120 A Criminal Conspiracy When two or more persons agree to do, or cause to be done-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is te ultimate object of such agreement, or is merely incidental to that object.
Section 302 IPC provides punishment for the commission of offence of murder which has been defined U/s 300 IPC
58. 300 Murder FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 25 of 75 Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 When culpable homicide is not murder.
Culpable homicide is not murder if the offendor, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person my mistake or accident.
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 26 of 75 The above exception is subject to the following provisos:-
First-That the provocation is not sought or voluntarily provoked by the offendor as an excuse for killing or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of the public servant.
Thirdly-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanations: Whether the provocation was grave and sudden enough to prevent the offence amounting to murder is a question of fact.
Exception 2: Culpable homicide is not murder if the offendor, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm then is necessary for the purpose of such defence.
Exception 3: Culpable homicide is not murder if the FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 27 of 75 offendor, being a public servant or adding a public servant acting for the advancement of public justice, exceeds the power given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4: Culpable homicide is not murder if it is committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offendor's having taken undue advantage or acted in a cruel or unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5: Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years suffers death or takes the risk of death with his own consent.
59. 420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 28 of 75 which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
60. 471. Using as genuine a forged --Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record].
61. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the state as well as Ld. Counsels for accused persons.
62. The present case is based on circumstantial evidence. It is established principle of law that a witness may lie but not the circumstances. In the present case, there is no eye witness of the alleged incident of commission of murder of deceased Lakhan Singh.
63. The guilt of the accused persons can also be proved through the circumstantial evidence. The circumstantial evidence has to be appreciated as per the established principles of law laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India. The standard of proof required for conviction in case of circumstantial evidence is that the circumstances relied upon in support of conviction must be fully established and the chain of evidence proved by the prosecution must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 29 of 75 accused.
64. Hon'ble Supreme Court of India in Judgment titled as 'Sharad Bridhichand Sarda Vs. State of Maharashtra cited as (1984) 4 SCC 116' has laid down the five golden priciples for appreciation of circumstantial evidence and has termed the same as Panchsheel of the Proof of Case based on circumstantial evidence. The said five golden principles are as follows:-
(i) The circumstances from which the conclusion of the guilt is to be drawn should be and not merely 'may be' fully established.
(ii) The facts so established should be consistent only with the hypotheses of the guilt of accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty.
(iii) The circumstances should be of conclusive nature and tendency.
(iv) They should exclude every possible hypotheses except the one to be proved.
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all probability the act must have been done by the accused.
Thus, before recording the conviction of any accused the abovesaid five condition must be satisfied. The prosecution has to establish its case on the basis of abovesaid five golden principles and to secure conviction of any FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 30 of 75 accused, the prosecution must fulfill the following requirements:-
(i) The circumstances from which the inference of the guilt of the accused is to be drawn must be firmly established.
(ii) The established circumstances must be of such definite tendency that points out towards the guilt of accused.
(iii) The chain of the circumstances must be so complete and there should not be any snap in the chain of circumstances.
(iv) The chain of circumstances must be so complete and incapable of any other hypotheses then that the guilt of the accused and same should also be inconsistent with the innocence of the accused and must exclude every other possible hypotheses except with the hypotheses pointing out towards the guilt of the accused.
65. Prosecution has relied on the following circumstances which have been brought on record through the evidence:-
(i) Identification of dead body of deceased Lakhan Singh by PW Shiv Kumar Sharma.
(ii) Deceased Lakhan Singh was last seen with accused
Ram Gopal Rai @ Ram Iqbal Rai and accused
FIR No. 97/2012 , PS: Prasad Nagar,
State Vs. Ram Gopal Rai & Ors. Page No 31 of 75
Sanjay Yadav.
(iii) Refusal of TIP by accused Ram Gopal Rai @ Ram
Iqbal Rai and Sanjay Yadav.
(iv) Recovery of weapon and other incriminating
material at a instance of accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav
(v) Use of mobile phone handset of deceased Lakhan Singh by accused Ram Gopal Rai @ Ram Iqbal Rai.
(vi) Conduct of accused persons.
(vii) Relationship of accused Seema and deceased Lakhan
Singh, motive and criminal conspiracy.
(viii) Use of mobile phones by accused persons and CDR
of said mobile phones.
(ix) Medical and scientific evidence.
66. The evidence led by the prosecution through the abovesaid circumstances relied upon by the prosecution has been analyzed as follows:-
(i) Identification of dead body of deceased Lakhan Singh by PW Shiv Kumar Sharma.
The dead body of deceased Lakhan Singh was found by the police on 14.05.2012. The said dead body could not be identified till 22.05.2012. On 22.05.2012, PW-2 Shiv Kumar Sharma identified the dead body through the photograph shown to him by the police in the street. PW-2 Shiv Kumar Sharma identified the dead body on the basis of T-shirt worn by deceased Lakhan Singh on 12.05.2012 i.e. on the date when he was lastly seen by him FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 32 of 75 in company of accused persons namely Ram Gopal Rai @ Ram Iqbal Rai @ Ram Iqbal Rai and Sanjay Yadav. On next day i.e. on 23.05.2012 PW-3 Smt. Premwati @ Mamta also reached Delhi and identified dead body of deceased Lakhan Singh on the basis of name of name of deceased Lakhan Singh Sharma engraved on his arm and a tattoo on his chest. It is pertinent to mention that PW-2 Sh. Shiv Kumar Sharma firstly identified the accused after about 10 days of the death of deceased while the police was showing the said photographs of deceased to the people in the area and in these circumstances it can be concluded that PW Shiv Kumar Sharma is natural indepedent witness who had no knowledge regarding the death of decased Lakhan Singh till 22.05.2012. If he would have been a plainted witness, he could have reached at the spot from where the dead body of deceased Lakhan Singh was recovered on the same day and could have identify the dead body and name the accused persons on the very same day.
67. (ii) Deceased Lakhan Singh was last seen with accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav.
As per the prosecution story, the incident took place on the intervening night of 12-13.05.2012, but the identity of dead body was fixed by PW-2 Shiv Kumar Sharma on 22.05.2012. While identifying the dead body of deceased Lakhan Singh, PW-2 Shiv Kumar Sharma told the police that on 12.05.2012, at about 10-10:30 PM when he was returning home from place of his work and when he reached, Padam Singh Road, Sabzi Mandi, Bappa Nagar, he saw deceased Lakhan Singh going towards Bappa Nagar along with two persons and one of them was accused Ram Gopal Rai @ Ram Iqbal Rai. The statement of PW-2 Shiv Kumar Sharma was recorded by the IO on FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 33 of 75 22.05.2012 itself. PW-2 Shiv Kumar Sharma has deposed on the same lines in the court. He had also told the description of accused persons in his statement given to the police.
68. PW-2 Sh. Shiv Kumar Sharma is the only witness who had seen deceased Lakhan Singh in company of accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav. The evidentary value of the testimony of PW-2 is to be tested on the touch stone of the established principles of law of evidence.
69. The last scene together theory shifts the burden of proof on the accused requiring him to explain how the incident had occurred. If the accused is not in a position to explain as and when he parted with the deceased before his death an inference may be drawn against him. Failure on the part of accused to furnish any explanation in this regard, will give rise a strong presumption of commission of offence by him.
70. The last scene together by itself is not a conclusive proof but that has to be supported by the connecting circumstances like relationship between the accused and deceased, enmity between them, recovery of any incriminating material from accused, previous history of any kind of hostility etc. The time gap between the last scene alive and the death of the deceased must be so small that the possibility of any person other than the accused being the author of crime become impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is long time gap and there is possibility of other persons meeting the deceased during the said long time gap.
71. Hon'ble Supreme Court of India in Judgment titled as 'Prithipal Singh FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 34 of 75 & Ors. Vs. State of Punjab and Anrs. cited as (2012) 1 SCC 10' while confirming the conviction of appellant observed as under:-
"53. In 'State of West Bengal Vs. Mir Mohammad Omar' this court held that if fact is especially in the knowledge of any person, then burden of proving the said fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of accused"
72. "79. Both the Courts below have found that the appellant accused had abducted Sh. Jaswant Singh Khalra. In such a situation, only the accused person FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 35 of 75 could explain as to what happened to Sh. Khalra and if he had died, in what manner and under what circumstances he had died and why his corpus delicti could not be recovered. All the appellants accused failed to explain any inculpating circumstance even in their statements u/s 313 Cr.P.C. Such a conduct also provides for an additional link in the chain of circumstances. The fact as to what had happened to the victim after his abduction by the accused persons, has been within the special knowledge of accused persons, therefore they could have given some explanation. In such a fact situation, the Courts below have rightly drawn the presumption that the appellants were responsible for his abduction, illegal detention and murder".
73.Similarly, Hon'ble Supreme Court of India in Judgment titled as 'Ravirala Laxmaiah Vs. State of Andhra Pradesh cited as (2013) 9 SCC 283' has held that:-
"where the accused has been seen with the deceased victim, it become the duty of the accused to explain the circumstances under which the death of victim had occurred".
74. In the present case, PW-2 Shiv Kumar Sharma has specifically deposed that he had seen deceased Lakhan Singh on 12.05.2012 at about 10-10:30 PM with the accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 36 of 75 Sanjay Yadav. He has correctly identified accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav in the court. In his cross-examination, he has specifically stated that he probably saw accused Ram Gopal Rai @ Ram Iqbal Rai for the first time in the month of April, 2012 and at that time, he was present with deceased Lakhan Singh. PW-2 Shiv Kumar Sharma is an independent witness. Thus, PW-2 Sh. Shiv Kumar Sharma already knew accused Ram Gopal Rai but he did not know accused Sanjay Yadav and that is why he only named accused Ram Gopal Rai in his statement given to the Police and told the description of both the accused persons which has matched with their actual description.
75. Accused persons have not taken any defence that PW-2 Shiv Kumar Sharma was having any enmity with them. Moreover, PW-2 Shiv Kumar Sharma came to know about the death of deceased after about 10 days. PW-31 Dr. Jitin Bodwal deposed that the composition in the body starts after 48 hours but when the body is preserved in mortuary, the composition becomes very slow. Thus, the decomposition of dead body depends upon the temperature and the conditions where it is kept. In the present case, the dead body was found in a polythin and there was no ventilation in the said polythene and it was month of May and the summer was at its peak. PW-2 Shiv Kumar Sharma had seen the deceased with accused persons Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav on 12.05.2012 at about 10-10:30 PM and the polythene containing the dead body of deceased Lakhan Singh was opened on 14.05.2012 after 6 PM i.e. after about 44 hours and at that the body had started decomposing. In view of the testimony of PW-31 Dr. Jitin Bodwal and the time since mentioned by him in his post mortem report Ex. PW-31/A FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 37 of 75 the approximate time of death has matched with the time when the deceased was lastly seen alive by PW-2 Shiv Kumar Sharma.
76. Nothing has come on record against PW-2 Shiv Kumar Sharma to show that he had any motive to falsely implicate accused person Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav in the present case. Since this fact has come on record that deceased Lakhan Singh was lastly seen alive in the company of accused persons Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav, the burden has been shifted on accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav to prove as to when deceased parted from their company. Both accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav have not taken any defence in this regard.
77. Accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yaav have not taken the plea of alibi and they have not examined any defence witness in this regard. In their statement recorded u/s 313 Cr.PC. with respect to the said fact both accused persons had answered that it is incorrect. The said answer is evasive in nature. The testimony of PW-2 Shiv Kumar Sharma regarding the fact that he had seen deceased Lakhan Singh in company of accused persons on 12.05.2012 is clear, cogent and trustworthy and he has withstood the test of cross-examination. PW-2 Shiv Kumar Sharma has answered each and every questions put to him in the cross-examination and his answeres in the cross-examination on behalf of the accused persons have further clarified the circumstances and accused persons have failed to put any dent on his veracity. Thus, in view of law laid down by the Hon'ble Supreme Court of India in judgment titled as 'Prithipal Singh & Ors. Vs. State of Punjab and Anrs. Cited as (2012) 1 SCC 10' and 'Ravirala Laxmaiah Vs. State of Andhra FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 38 of 75 Pradesh cited as (2013) 9 SCC 283', this court does not find any reason to discard of testimony of PW-2 Shiv Kumar Sharma and this court is of considered opinion that the fact that deceased Lakhan Singh was in company of accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav on 12.05.2012 at about 10:00-10:30 pm at Bappa Nagar has been duly proved by the prosecution and a strong presumption has arisen against both the accused persons that on the abovesaid date, time and place they have committed murder of deceased Lakhan Singh.
78. (iii) Refusal of TIP by accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav:-
After their arrest, accused persons namely Ram Gopal Rai @ Ram Iqbal Rai as well as Sanjay Yadav were kept in muffled face and an application for their TIP was filed before the court of Ld. MM. PW-37 Sh. Chander Mohan Ld. MM has proved the TIP proceedings of accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav Ex. PW-37/A to PW_37/E. PW-37 Sh. Chander Mohan deposed that both the accused persons had refused to participate in the TIP proceedings. PW-2 Shiv Kumar could have identified them in the TIP proceedings which was refused by them and hence, an adverse inference may be drawn against both the accused persons u/s 114 of Indian Evidence Act. It is pertinent to mention that even before their arrest, PW-2 Sh. Shiv Kumar Sharma had given their description to the Police in his statement recorded under Sec. 161 Cr.PC and the said description has matched with dscription of accused persons. He also correctly identified accused Ram Gopal Rai and Sanjay Yadav in the court during the trial.
79. (iv|) Recovery of weapon and other incriminating material at a FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 39 of 75 instance of accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav.
Recovery of weapon of offence and other incriminating material at instance of accused persons on the basis of disclosure statements made by accused persons is an important circumstantial evidence. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle u/s 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non-inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information.
80. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
81. Hon'ble Supreme Court of India in Judgment titled as 'Pawan Kumar @Monu Mittal Vs. State of U.P & Anr. cited as (2015) 7 SCC 148' has held that:-
"the facts discovered u/s 27 of Indian Evidence Act embraces the place from which object was produced and knowledge of the accused as to it and if the accused are denying their role without proper explanation as to the knowledge about the FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 40 of 75 incriminating material recovered on the basis of their statements in police custody, would justify the presumption drawn by the Courts below as to the involvement of the accused in the Crime".
82. In the present case, disclosure of statement of accused Ram Gopal Rai @ Ram Iqbal Rai Ex. PW-30/C and disclosure statement of accused Sanjay Yadav Ex. PW-35/B were recorded by the IO on 25.05.2012. Thereafter, both the accused persons led the IO and other police officials who joined the investigation to the place where the offence of weapon was kept by them. At that time, one independent public person i.e. PW-4 Sh. Love Deepak @ Vipin also joined the investigation and on the basis of disclosure statement of both the accused persons and at their instance, IO recovered blood stained bedsheet, belan and handkerchief from the bushes near the tank and some hair were also found on the bedsheet and the belan. The investigating agency had no knowledge regarding the said weapon, bedsheet and the handkerchief by the accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav and same have been recovered at instance of accused persons on the basis of disclosure statements made by them. The said articles were seized by the IO vide seizure memo Ex. PW-4/A.
83.The place of recovery is not a public place but it is situated within a boundary wall though the wall was damaged at one point and the said recovery has been effected from the bushes and the said spot is not visible to the passer byes passing from the nearby street/road. PW-4 Love Deepak @ Vipin is an independent public witness and he has FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 41 of 75 withstood the test of cross-examination regarding the recovery of said articles and the accused person have failed to put any dent on his veracity.
84.One purse allegedly belonging to deceased containing family photographs of deceased with his wife Premwati and others, one pocket diary and two passport size photograph of accused Seema Devi and visiting cards were also recovered from possession accused Sanjay Yadav which were seized by IO vide seizure memo Ex. PW-30/O. Though, the said purse was not shown to PW-3 Smt. Premwati but the fact that as to how the photographs of accused Seema were found in possession of accused Sanjay Yadav has not been explained by accused Sanjay Yadav as well as accused Seema Devi.
85. Accused Sanjay Yadav disclosed in his disclosure statement Ex. PW 35/B about the shop from where he had purchased polythene and plastic bori. PW-10 Sh. Ram Chander deposed that he was running a shop of packing material at premises no. 16/603 E Tank Road and on 13.05.2012 police came to his shop alongwith a boy having dark complexion and inquired from him whether the said boy had purchased polythene from his shop. He deposed that after seeing accused Sanjay Yadav he got remembered that he had visited his shop on 13.05.2012 in the afternoon and asked for a big polythene plastic. The testimony of PW-10 Ram Chander seems to be quite natural as in his cross- examination he deposed that earlier he did not remember whether accused Sanjay had purchased polythene from shop or not but when police brought him to his shop he recollected that he had purchased FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 42 of 75 polythene from his shop. He also identified the green colour polythene Ex. P-5 from which the dead body of deceased Lakhan Singh was recovered by deposing that he used to sell such type of polythene from his shop.
86. Similarly, PW-12 Sh Govind Gupta deposed that on 13.05.2012 police came to his shop alongwith two boys and one of them having dark complexion and on seeing his face, he identified the said person and in his cross-examination by the Ld. Addl. PP for the State he admitted that the said person had purchased the plastic bag on 13.05.2012. The testimony of PW-12 Sh. Govind Gupta also seems to be quite natural as in his cross-examination he deposed that firstly accused Sanjay told the police that he had purchased the plastic bag from his shop and thereafter he identified him. PW-10 Sh. Ram Chander and PW-12 Sh. Govind Gupta have not turned hostile and they have deposed that the polythene and the plastic katta/bori was purchased from their respective shops by accused Sanjay Yadav and accused Sanjay Yadav has failed to put any dent on their varacity and hence their testimonies are clear, cogent and reliable. This Court is of considered opinion that the recovery of weapon of offence and other articles has been duly proved by the prosecution which was not in knowledge of Investigating Agency before disclosure statement Ex. PW 30/C and Ex. PW35/B were made by accused persons namely Ram Gopal Rai and Sanjay Yadav.
87. (v) Use of mobile phone handset of deceased Lakhan Singh by accused Ram Gopal Rai @ Ram Iqbal Rai.
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 43 of 75 PW-3 Smt. Premwati @ Mamta deposed that mobile phone no 9650561856 was being used by deceased Lakhan Singh. The said SIM card was issued in name of one Yakhmi Chand. PW-16 Lakhmi chand deposed that he had not applied for the said phone number. He also deposed that his name was inadvertently mentioned as Yakhmi Chand instead of Lakhmi Chand. In his cross examination, he denied the suggestion that deceased Lakhan Singh had not used his identity document Ex. PW-16/A at the time of obtaining the abovesaid Sim card. Thus, as per the testimony of PW-16 Lakhmi Chand @ Yakhmi Chand, the said Sim card was being used by deceased Lakhan Singh in his mobile phone. PW-17 Sh. R.K. Singh has proved the CDR, CAF and location cell ID chart of the abovesaid number Ex. PW-17/A to Ex.PW-17/C. PW-17 Sh. R.K. Singh deposed that the said subscriber was using instrument having IMEI no. 358256043892690. The said instrument having the abovesaid IMEI was being found used by accused Ram Glopal Rai after the death of deceased Lakhan Singh till 17.05.2012 with mobile phone no. 8130883799 which was issued in name of Ram Ekawal Ray S/o Murakh Ray. This person namely Ram Ekawal Ray is accused Ram Gopal Rai @ Ram Iqbal Rai and his father's name is also same and his photograph is also available on the customer exhibit form Ex. PW-28/A. PW-36 Insp. Harish Kumar has specifically deposed that accused Ram Gopal Rai and Ram Ekawal Ray is the same person. PW-28 Sh. Vishal Gaurav has proved the CDR, CAF and cell ID chart along with certiciate u/s 65B evidence act Ex. PW-28/A and Ex. PW-28/E of mobile phone no. 8130883799.
88. Accused Ram Gopal Rai @ Ram Iqbal Rai has not explained as to how he was using the same mobile handset which was being used by deceased FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 44 of 75 Lakhan Singh just before his death and which was missing from the date of missing of deceased Lakhan Singh. A strong presumption arises against the accused Ram Gopal Rai. Thus, the prosecution has successfully proved the fact that the mobile phone of deceased Lakhan Singh was being used by accused Ram Gopal Rai @ Ram Iqbal Rai after the death of deceased Lakhan Singh and accused has failed to discharge the burden u/s 106 Evidence Act.
89. (vi) Conduct of accused persons.
Prosecution may corroborate its case from the conduct of accused also. The previous and subsequent conduct of accused is relevant u/s 8 of Indian Evidence Act. A fact can be proved by the conduct of accused and surrounding circumstances. The conduct of accused in absconding after the commission of offence, in destroying the evidence, behaving in an unnatural way etc are relevant u/s 8 of Indian Evidence Act.
90. Hon'ble Supreme Court of India in Judgement titled as Prithipal Singh & Ors. Vs. State of Punjab and Anrs. Cited as (2012) 1 SCC 10 while confirming the conviction of appellant observed as under:-
"78. Most of the appellants had taken alibi for screening themselves from the offences. However, none of them could establish the same. The Courts below have considered this issue elaborately as in order to avoid repetition, we do not want to re-examine the same. However, we would like to clarify that the conduct of accused subsequent to the commission of crime in such a case, may be very relevant. If there is sufficient FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 45 of 75 evidence to screen/absolve himself from the offence, such circumstance may point towards his guilt. Such a view stands fortified by the judgment of this Court in 'Anant Chintaman Lagu Vs. State of Bombay."
91. The dead body of deceased Lakhan Singh was found by the police on 14.05.2012. PW-13 Sh. Ashok deposed that on 15.05.2012, Ram Gopal met him in the gali and he was making inquiry from people whether any room was available on rent and he told him that one room was available. He further deposed that room was given on rent by Sh. Deep Chand to Ram Gopal and he started residing there. PW-15 Sh. Rajender Kumar deposed that accused Ram Gopal was his tenant at house no. 16/334 E, Tank Road, Bappa Nagar and accused Ram Gopal vacated the same on 16.05.2012. PW-15 deposed that accused Ram Gopal Rai told him that his wife was having difficulty in climbing the stairs contrary to this PW-13 Sh. Ashok in his cross-examination by the Ld. Addl. PP for that state admitted that accused Ram Gopal told him he would bring his wife from Bihar and on 15.05.2012 his wife had not accompanied him. Thus, since the wife of accused Ram Gopal was not residing with him at the relevant time, he was taking false plea to change the room. The conduct of accused Ram Gopal is relevant as just one day after the recovery of dead body of deceased Lakhan Singh, he was looking for another room on rent and on the very next day, he shifted to the said room. It is pertinent to mention that accused vacated the room where the alleged incident took place in the middle of month. Accused Ram Gopal has not explained his conduct in the cross examination of PWs as well as in his statement u/s 313 FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 46 of 75 Cr.PC in this regard. Thus, it raises serious doubts on his conduct. The prosecution has argued that accused vacated the said room in the middle of month in order to save himself.
92. Conduct of accused Seema is also relevant. The alleged incident took place on 12.05.2012. On 12.05.2012, accused Seema started using a new mobile no. i.e. 8130974184 which was issued in name of one Hari Om. PW-8 Hari Om deposed that he had not purchased the said sim card and after going through the CAF Ex. PW-8/A he deposed that the photocopy of driving license Ex. PW-8/B belongs to him but he did not know as to how it was used in obtaining sim by some person. PW-18 Sh. Sanjeev Gupta deposed that the sim card having mobile no. 8130974184 was supplied by his firm to M/s New Style Mobile, Kirari, Nangaloi and the said sim card was activated on 12.05.2012 from mobile phone no. 9818857161 which was being used by accused Sanjay Yadav. Before 12.05.2012 Seema was using another mobile no. 8826627994 which was issued in her own name. From 12.05.2012 onwards she made calls to deceased Lakhan Singh, accused Ram Gopal Rai and accused Sanjay Yadav from the new mobile connection taken in name of one Hari Om. Accused Seema has also failed to explain as to how she started using another mobile no. In name of other person from the day on which the death of deceased Lakhan Singh took place.
93. Relationship of accused Seema and deceased Lakhan Singh, motive and criminal conspiracy.
The dead body of deceased Lakhan Singh was identified by PW-2, Sh. Shiv Kumar Sharma on 22.05.2012 and he had named Ram Gopal Rai @ Ram Iqbal Rai and one other person with whom he had lastly seen alive FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 47 of 75 deceased Lakhan Singh. He had no knowledge about th relationship of accused Seema and deceased Lakhan Singh. On next day i.e. On 23.05.2012, PW-3 Smt Premwati @ Mamta came to Delhi and identified the dead body of her husband deceased Lakhan Singh on the basis of the photographs of the dead body. On 23.05.2012, PW-Smt Premwati @ Mamta told the IO that her husband had illicit relationship with accused Seema and her statement in this regard was recorded by the IO on the same day.
94. During the trial, PW-3 Smt Premwati @ Mamta deposed that when she was residing with her husband in a rented accommodation at Maujpur, Delhi, some times her husband deceased Lakhan Singh did not use to come home during night and at that he used to work at Bappa Nagar and thereafter they shifted to Bappa Nagar in a rented accommodation. She further deposed that even while residing at Bappa Nagar some times her husband deceased Lakhan Singh did not use to come home in night and on suspicion she started chasing him. She further deposed that one day she saw her husband entering in house of Seema who was her relative and thereafter she again went to house of Seema and asked her as to why she was doing all this. She also brought a joint photograph of accused Seema and deceased Lakhan Sing Ex. PW3/A from house of accused Seema in which deceased Lakhan Singh and Seema can be seen in a romantic pose. The said photograph was seized by the IO vide seizure memo Ex. PW3/B. She further deposed that she made inquiry from the landlady of Seema namely Smt Kamla Devi (PW-9) who told her that accused Seema was residing with her husband Lakhan Singh. She also deposed that on coming to know this a quarrel had taken place between her and accused Seema and accused Seema asked her to stop Lakhan Singh if she FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 48 of 75 could. She also deposed that when she and accused Seema were quarrelling, landlady had intervened.
95. The version of PW-3 Smt Premwati @ Mamta has been corroborated by PW-9 Smt Kamla Devi. PW-9 Smt Kamla Devi deposed that accused Seema and deceased Lakhan Singh were her tenant and they had told her that they were husband and wife. She also deposed that after few days other female (PW-3 Smt Premwati @ Mamta) came there and quarrel had taken place between accused Seema and said lady and the said lady had claimed herself as real wife of Lakhan Singh. She further deposed that from the said quarrel she came to know that Seema was not real wife of Lakhan Singh and thereafter she evicted accused Seema and Lakhan Singh from her premises. She deposed that to her recollection she had got vacated her premises about 06-07 months prior to death of Lakhan Singh.
96. It is pertinent to mention that due to the illicite relationship of accused Seema and deceased Lakhan Singh, PW-3 Smt. Premwati @ Mamta shifted to Rudrapur, Uttrakhand along with her children and she has specifically deposed in this regard. There were no other reason of her shifting to Rudrapur.
97. From the CDR also, it is clear that accused Seema and deceased Lakhan Singh were in contact with each other till the death of deceased Lakhan Singh. PW-5 Sh. Virender Sharma (brother of deceased Lakhan Singh) deposed that PW-3 Premwati @ Mamta had told her about the illicit relationship of accused Seema with deceased Lakhan Singh. PW-7 Smt Kusum (bhabhi of deceased Lakhan Singh) also deposed that PW-3 Smt Premwati @ Mamta had told her Lakhan Singh had illicit relationship with FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 49 of 75 some lady and on this point quarrel used to take place between Premwati and Lakhan Singh. Thus, from the testimony of PW-3 Smt Premwati @ Mamta, PW-5 Sh. Virender Sharma, PW-7 Smt Kusum, PW-9 Smt Kamla Devi, photograph Ex. PW3/A and CDR on record, shifting of Premwati to Rudrapur and not accompanying by deceased Lakhan Singh this fact has been fully established by the Prosecution that accused Seema who was married and was living separately from her husband Raj Kumar and deceased Lakhan Singh who was also married were having illicit relationship.
98. The prosecution has established that there were illicit relationship between accused Seema and deceased Lakhan Singh and in these circumstances motive of the commission of murder of deceased Lakhan Singh has also to be proved. Motive is relevant u/s 8 of Indian Evidence Act. Motive is a force that moves a man to do a particular work. Generally there can be no action without any motive. Under Section 8 of Evidence Act, several factors including preparation, previous threat, previous altercation, previous litigation between the accused and the victim becomes relevant.
99. The motive for the commission of offence is of vital importance in a criminal trial and in cases based on circumstantial evidence motive itself will be a circumstance which the Court has to consider deeply. The existence of motive which operates in the mind of perpetrator may not be known to others and hence it has to be inferred from the facts and circumstances of this case.
100. Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh Vs. State of Jharkhand and Anr cited as (2011) 3 SCC 654 observed as under
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 50 of 75 "15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of accused is fairly well settle by a long line of decision of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon the circumstantial evidence on one hand and those were relies upon the testimonies of the eye witnesses on the other.
In the former category of cases proof of motive is given the importance it deserves, for proof of motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into background in cases where the prosecution relies upon and eye witness account of the occurrence.
That is because if the Court upon a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of motive does not by itself provide a safe basis for FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 51 of 75 convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses."
101. Similarly, Hon'ble Supreme Court of India in judgment titled as Chunni Lal Vs. State of Uttar Pradesh cited as (2010) SCC 496 observed as under:-
"12. This in our estimation is the reason and motive for the crime and not the one which was advanced by the Counsel appearing for the appellant, or by the time the incident had taken place, the deceased had legalized his relationship and married the said Chandrakaliya thereby giving legal status to PW-1 and PW-2 as his sons. In that situation, there was no possibility at all of the appellant inheriting the property of his uncle and therefore the plea taken by the appellant regarding motive appears to be without merit. Rather on the other hand, we find clear motive on the part of appellant/accused committing the murder of his uncle".
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 52 of 75
102. PW-3 Smt Premwati @ Mamta has specifically deposed that when she had a quarrel with accused Seema, accused Seema had told her that to stop Lakhan Singh if she could. PW-3 Smt Premwati @ Mamta further deposed that one day accused Seema met her in Sabzi Mandi at Padam Singh Road and at that time she was accompanied by Gopal (accused Ram Gopal Rai @ Ram Iqbal Rai) and on seeing her accused Seema had threatened her to take away Lakhan Singh from there otherwise she would get killed him and they will not even be able to get his dead body. She furher deposed that after the said incident of threat given by accused Seema, she alongwith her children shifted to Rudrapur, Uttarakhand. PW-11 Ramu Sharma, landlord of PW-3 Smt Premwati @ Mamta and deceased Lakhan Singh at Rudrapur has corroborated this fact by deposing that deceased Lakhan Singh alongwith her wife and children resided at his premises as a tenant from approximately March 2012 to May 2012. PW-3 Smt Premwati @ Mamta had specifically deposed that she asked her husband deceased Lakhan Singh to accompany them to Rudrapur but he did not accompany them. She further deposed that on the next day deceased Lakhan Singh came to Rudrapur and started residing there and one day he came to Delhi and did not return.
103. Thus from the testimony of PW-3 Smt Premwati @ Mamta it is clear that due to illicit relationship of accused Seema and her husband deceased Lakhan Singh they had shifted to Rudrapur, Uttarakhand but deceased Lakhan Singh was not willing to leave Delhi and shift to Rudrapur, Uttrakhand. It has also come on record that after the illicit relationship of accused Seema and deceased Lakhan Singh came to the knowledge of PW-3 Smt Premwati @ Mamta, accused Seema had also asked PW-3 Smt Premwati @ Mamta to stop FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 53 of 75 deceased Lakhan Singh from meeting her but deceased Lakhan Singh did not do that. As per the CDR record, accused Seema used to talk with accused Sanjay Yadav a lot. As per the CDR of accused persons namely Seema Devi and Sanjay Yadav they used to talk several times daily and at that time accused Seema Devi was residing from her husband Raj Kumar and at the same time deceased Lakhan Singh had also shifted to Rudrapur. In these circumstances, the disclosure statements of accused persons become relevant that accused Seema Devi and Sanjay Yadav wanted to marry with each other but decased Lakhan Singh was not ready to leave accused Seema Devi and accused Seema Devi and accused Sanjay Yadav wanted to get rid of deceased Lakhan Singh.
104. The case of the prosecution is that accused persons namely Seema, Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav entered into a criminal conspiracy to commit murder of deceased Lakhan Singh and in pursuance of said conspiracy deceased Lakhan Singh was murdered by accused Ram Gopal Rai @ Ram Iqbal Rai @ Ram Iqbal Rai and Sanjay Yadav on intervening night of 12/13.05.2012. The prosecution has led the evidence in form of circumstantial evidence to proe the criminal conspiracy entered by accused persons namely Ram Gopal Rai @ Ram Iqbal Rai, Seema and Sanjay Yadav.
105. Section 120 B provides punishment for the commission of offence of criminal conspiracy. The offence of criminal conspiracy is a substantive offence. When two or more person agree or cause to be done an illegal act or an act which is not illegal by illegal means, the agreement entered by such persons will constitute the offence of criminal conspiracy. The most important ingredient of offence of criminal conspiracy is the agreement between two or FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 54 of 75 more person to do an illegal act. It is intention to commit crime and joining hands with persons having the same intents. The offence of criminal conspiracy is a separate and distinct offence.
106. Generally the conspiracy is hatched up in utmost secrecy and in these circumstances it becomes very difficult to prove the same by direct evidence. The conspiracy in such cases is to be incurred on the facts and circumstances of the case. The circumstances of a particular case before, during and after the commission of offence have to be taken into consideration to infer the criminal conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explaination.
107. The term "Criminal Conspiracy" has been explained by the Hon'ble Apex Court in Judgment titled as Major E.G. Barsey Vs. State of Bombay (1962) 2 SCR195 wherein Hon'ble Apex Court observed as under:-
"31.... The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of number of acts".
108. Similarly, Hon'ble Supreme Court of India in K.R. Purushothaman Vs. State cited as AIR 2006 SC 35 has held that:-
to constitute a conspiracy, meeting of minds of two or FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 55 of 75 more person for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of conspiracy. Neither it is necessary that everyone of the conspirator take active part in the commission of each and every conspiratorial acts.
109. Thus, the criminal conspiracy in the present case is to be inferred from the facts and circumstances of the present case. It has been established by the prosecution that deceased Lakhan Singh was lastly seen with accused Ram Gopal Rai @ Ram Iqbal Rai and accused Sanjay Yadav. It has also been established that the mobile handset which was being used by deceased Lakhan Singh was being used by accused Ram Gopal Rai @ Ram Iqbal Rai after his death.It has also been established that accused Seema and deceased Lakhan Singh were having illicit relationship and accused Seema and Sanjay Yadav had a motive to kill deceased Lakhan Singh to get rid from him. The call record of the mobile phone numbers coupled with the extra judicial confession made by the accused persons establishes a link that accused persons namely Ram Gopal Rai @ Ram Iqbal Rai, Seema and Sanjay Yadav entered into criminal conspiracy to kill deceased Lakhan Singh which will also become clear from the CDR of the mobile phone numbers used by the accused persons and deceased which has been discussed as under:-
110. Use of mobile phones by accused persons and CDR of said mobile phones.
This Court is aware that the CDR alone cannot be basis of conviction.
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 56 of 75 However, the CDR is a scientific evidence which can be used as a corroborative evidence in case of circumstantial evidence. It is pertinent to mention here that the ownership of the mobile phone handsets and the SIM cards is not material for the purpose of appreciating the evidence. The material thing that is to be established is that as to who was using a particular handset and a particular SIM card during the particular period.
111. PW-3, Smt Premwati @ Mamta has deposed that deceased Lakhan Singh was using mobile phone number 9650561856 before his death. Accused persons have not denied their acquaintance with deceased Lakhan Singh and during arguments Ld. Counsels for accused persons have argued that the telephonic communication between the accused persons and deceased was natural as they were known to each other. Prosecution has established that deceased Lakhan Singh was using having mobile no. 9650561856 which was issued in name of PW -16 Lakhmi Chand @ Yakhmi Chand who has denied the suggestion that deceased Lakhan Singh had not used his ID Ex. PW16/A at the time of taking the abovesaid SIM. Accused persons have not cross- examined PW-3 Smt Premwati @ Mamta on the point of use of abovesaid mobile phone by deceased Lakhan Singh nor they have brought on record as to what Mobile number was being used by deceased Lakhan Singh on which they used to talk with him. Thus the prosecution has established that deceased Lakhan Singh was using mobile no. 9650561856.
112. At the time of personal search of accused Seema Dev, one mobile phone of black colour Make Spice having IMEI no. 910040873135573 with SIM card was recovered from her possession. The personal search memo of accused Seema Devi is exhibited as Ex. PW30/L wherein the IMEI Number FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 57 of 75 of phone handset used by her has been mentioned. Similarly at the time of personal search of accused Sanjay Yadav, one mobile phone of black colour Make NOKIA having IMEI no. 356977014691314 with 2 SIM cards of Aircel and Vodafone was recovered from his possession. The personal search memo of accused Sanjay Yadav is exhibited as Ex. PW30/F and the said IMEI number along with particulars of SIM cards used in the said handset have been mentioned.
113. Thus to analyse the CDR of mobile phones used by accused persons as well as by deceased, the IMEI number of the handsets used by them is of vital importance. It is pertinent to mention that the last digit of IMEI number is irrelevant and this aspect has been discussed by the Hon'ble High Court of Delhi in Judgment titled as Suraj Vs. State cited as 2022 SCC online DEL 4572 wherein the Hon'ble High Court of Delhi observed as under:-
"27 The deceased's Nokia mobile phone was seized vide seizure memo Ex. PW 28/H from appellant Sonu Dahiya with the IMEI number 358290034757208 which matches with the IMEI number in the CDR of deeased i.e. 358290034757200 (last digit as per the settled law as decided in Gajraj Vs. Sate Supra being irrelevant"
114. Similarly Hon'ble Supreme Court of India in judgment titled as State (NCT) of Delhi Vs. Navjot Sandhu @ Afsan Guru cited as (2005) 11 SCC 600 observed as under:-
" 195. One more point has to be clarified. In the FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 58 of 75 seizure memo Ex. 61/4, the IMEI number of Nokia phone found in the truck was noted as 350102209452432. That means the last digit varies from the call records wherein it was noted as 350102209452430. Thus there is a seeming descrepancy as far as the last digit is concerned. This descrepancy stands explained by the evidence of PW-78, a computer Engineer workin as Manager Seimens. He is stated, while giving various details of the 15 digits that the last one digit is a spare digit and the last digit, according to GSM specification should be transmitted by the mobile phone as 0."
115. Thus as per the law laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India, the last digit of IMEI number mentioned in the mobile handset and the IMEI number mentioned in the CDR will be different and the last digit of IMEI number will be replaced by 0.
116. The CDR, CAF, location ID chart coupled with certificate issued under 65-B Evidence Act of the SIM card used in the mobile handset having IMEI number 910040873135570(3) recovered from possession of accused Seema Ex. PW-8/A, Ex. PW17/C to Ex. PW 17/F and Ex. PW28/F to Ex. PW28/J has been proved by PW-17 Sh. R.K Singh and PW-28 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Limited. As per the said record, on the basis of IMEI number of the mobile handset recovered from possession of accused Seema, she was using mobile phones no. 8130974184 and 8826627994.
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 59 of 75 Similarly PW-28 has also proved the CDR, CAF, location ID chart
alongwith certificate u/s 65 - B Evidence act of mobile phone no. 8130883799 Ex. PW28/A to Ex. PW 28/E and said mobile phone was issued in name of Ram Ekabal Rai S/o Murakh Rai. Ram Ekabal Rai is accused Ram Gopal Rai @ Ram Iqbal Rai which is clear from his father's name i.e. Murakh Ray and his photograph is also availbale on the CAF. Similarly PW-19 Sh. Shishir Malhotra, Nodal Officer, Bharti Airtel has proved the CDR, CAF, location ID chart alongwith certificate u/s 65-B Evidence Act of mobile phone number 8802613580 Ex. PW 19/A to Ex. PW 19/E issued in name of PW-38 Subhesh Singh who admitted that the ID card Ex. PW19/B used for taking connection of abovesaid SIM belongs to him but he had not taken the mobile connection.
117. Similary PW-28 Vishal Gaurav also proved the CDR, CAF and location ID chart alongwith certificate u/s 65-B Evidence Act of mobile phone no. 9818857161 issued in name of one Jhahangir Alam. Accused persons have taken the defence that the said mobile SIMs were not issued in their names and hence they were not using the same. However, it has been scientifically brought on record that the particular SIM Cards used in the mobile handset recovered from the possession of accused Seema and Sanjay Yadav were used by the persons who was in possession of those handsets. The said mobile phone handset were recovered from possession of accused Seema Devi and Sanjay Yadav at the time fo their personal search by the IO. In these circumstances burden lies upon accused Sanjay Yadav and Seema as to how they were in possession of the said mobile handset. Mobile phone number 8826627994 was issued in the name of accused Seema while mobile phone FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 60 of 75 number 8130883799 was issued in the name of Ram Gopal Rai @ Ram Iqbal Rai @ Ram Ekaval Ray. Thus prosecution has fully established that mobile phone no. 9650561856 was used by deceased Lakhan Singh. Mobile phone no. 8802613580 and 9818857161 were being used by accused Sanjay Yadav and mobile phone nos. 8130974184 and 8826627994 were being used by accused Seema.
118. On the basis of the analysis of the CDR IO PW-36 Insp. Harish Kumar has prepared the charts Ex. PW-36/M to Ex. PW-36/Q showing the conversations between all the three accused persons as well as between accused persons and deceased Lakhan Singh. On the basis of analysis of CDR of abovesaid mobile phone numbers, following facts have come on record.
(i) That on 11.05.2012, several times coversation took place between accused Seema and deceased Lakhan Singh through their mobile phone nos. 8826627994 and 9650561856 and several times conversation took place between accused Sanjay Yadav and deceased Lakhan Singh through their mobile phone numbers 8802613580 and 9650561856.
(ii) On 12.05.2012 i.e. On the day when deceased Lakhan Singh was lastly seen alive in company of Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav, three times conversation took place between accused Sanjay Yadav and deceased Lakhan Singh through their mobile phone numbers 8802613580 and 9650561856. On that day first call was made by deceased Lakhan Singh to accused Sanjay Yadav at 09:34 AM and two calls were made by accused Sanjay Yadav at 20:19 and 21:22. The call made by accused Sanjay Yadav to deceased Lakhan Singh at 21:22 pm was the last call received on the phone of deceased Lakhan Singh and FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 61 of 75 thereafter no calls were received on the phone of deceased Lakhan Singh. Accused Sanjay Yadav has not given any explanation in this regard as to what conversation took place between him and deceased Lakhan Singh, why he made call to deceased Lakhan Singh and what happened thereafter.
(iii) On 11.05.2012, 3 times coversation took place between accused Sanjay Yadav and accused Ram Gopal Rai @ Ram Iqbal Rai through their mobile phone nos. 8802613580 and 8130883799 and on same day, several times conversation took place between accused Sanjay Yadav and accused Seema through their mobile phone numbers 8802613580 and 8826627994 and on same day, several times converation took place between accused Sanjay Yadav and deceased Lakhan Singh through their mobile phone numbers 8802613580 and 9650561856.
(iv) On 12.05.2012 i.e. on the day when deceased Lakhan Singh was lastly seen alive, several times conversation took place between accused Sanjay Yadav and accused Seema through their mobile phone nos. 8802613580 and 8130974184 (activated on 12.05.2012 itself). From 13.05.2012 to 15.05.2012, accused Sanjay Yadav and Seema had telephonic conversation several times. It is pertinent to mention that only few calls were made between accused Seema Devi and accused Ram Gopal Rai but several calls used to take place between accused Seema Devi and accused Sanjay Yadav on daily basis which indicated towards their relationship as they have not given any explanation in this regard.
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(v) The mobile phone no. 8130883799 belonging to accused Ram Gopal Rai @ Ram Iqbal Rai was used in the mobile handset of deceased Lakhan Singh having IMEI no. 35826043892690 from 13.05.2012 to 17.05.2012 and at the time of obtaining the abovesaid sim card, acused Ram Gopal Rai @ Ram Iqbal Rai had given the reference name of one Sonu and had mentioned the contact no. 8802613580 which was being used by accused Sanjay Yadav. From 13.05.2012 to 17.05.2012, accused Sanjay Yadav and accused Ram Gopal Rai @ Ram Iqbal Rai were having conversation with their abovesaid mobile numbers.
(vi) From 11.05.2012 to 12.05.2012 and on 14.05.2012, accused Seema Devi had used her mobile phone having IMEI no. 910040873135570 with mobile phone no. 8826627994 and during this period, she was having conversation with deceased Lakhan Singh, accused Sanjay Yadav several times.
119. Thus, on the basis of call records, it can be concluded that the last call on the mobile phone of deceased Lakhan Singh was made by accused Sanjay Yadav on 12.05.2012 at about 21:22 PM and deceased Lakhan Singh was lastly seen alive on that day at about 10-10:30 PM by PW-2 Shiv Kumar Sharma in the company of accused Sanjay Yadav and accused Ram Gopal Rai @ Ram Iqbal Rai. Accused Seema Devi was also in regular touch with accused Sanjay Yadav, Ram Gopal Rai @ Ram Iqbal Rai and deceased Lakhan Singh. Accused persons have not given any explanation with respect to the said telephonic conversation either in the cross examination of prosecution witnesses or in their statement u/s 313 Cr.PC and they have failed to discharge burden placed upon them u/s 106 of Indian Evidence Act, 1872.
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120. The basic purpose of recording of statement of accused u/s 313 Cr.P.C is to put in the incriminating evidence brought on record against him by the prosecution and to accord him an opportunity to explain the circumstances appearing against him.
121. Hon'ble Supreme Court of India in Judgment titled as Neel Kumar Vs. State of Haryana cited as (2012) 5 SCC 766 has held that:-
it was the duty of the accused to explain incriminating circumstances proved against him while making statement u/s 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance was an additional link in chain of circumstances to sustain charges against you.
122. Similary Hon'ble Supreme Court of India in Judgment titled as Phula Singh Vs. State of Himachal Pradesh AIR 2014 SC 1256 has held that:-
if the accused remains silent or in complete denial, the Court can take adverse intense against you.
123. Hon'ble Supreme Court of India in judgment titled as Sidhartha Vashisht Vs. State (NCT of Delhi) cited as (2010) 6 SCC 1 while convicting the accused and taking adverse inference against him with respect to the false answers given by him u/s 313 Cr.P.C observed as under:-
"130. This Court has time and again held that where an accused furnishes false answers as regards proved facts, the Court ought to draw an adverse inference qua him and such an inference shall become an additional circumstance to prove the guilt of the accused in the present case, the FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 64 of 75 appellant Manu Sharma has inter alia has taken false pleas in reply to question no. 50, 54, 55, 56,57,64, 65,67,72,75 and 201 put to him under Section 313 of the Code."
124. In the present case, the statements of accused persons u/s 313 Cr.PC were recorded and in reply to the most of the questions put to them they have stated either 'I do not know' or 'it is incorrect'. In answers, they have also stated that the prosecution witnesses were planted witnesses and they are innocent and have been falsely implicated in the present case. All the three accused persons have not taken any specifici defence either in the cross examination of prosecution witnesses or in their statements recorded u/s 313 Cr.PC. The answers given by the accused persons are evasive in nature and accused persons have not explained as to why, they have been falsely implicated in the present case or as to why the prosecution witnesses have deposed against them or as to how they were in possession of particular phone numbers and mobile handset or that what conversation had taken place between them as well as between them and accused. Accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav have failed to explain as to what happened after deceased Lakhan Singh was lastly seen alive in their company. In these circumstances, applying the law laid down by Hon'ble Supreme Court of India in 'Neel Kumar (supra), Phula Singh (Supra and Sidharth Vashisth (supra)'. This court is of considred opinion that accused persons have not furnished any explanation for these circumstance hence these circumstances are additional link in the chain of circumstances evidence against them.
125. Medical and scientific evidence.
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 65 of 75 Dead body of deceased Lakhan Singh was found in the evening of 14.05.2012 and his post mortem was conducted by PW-31 Dr. Jitin Bodwal on 21.05.2012. PW-31 Dr. Jitin Bodwal proved the post mortem report Ex. PW-31/A of deceased Lakhan Singh and in the said report, he mentioned that there were as many as seven external injuries on the body of deceased Lakhan Singh. He opined that death was caused due to intra cranial haemorrhage consequent upon blunt force trauma to head via injury no. 1 to 7 which were sufficient to cause death in ordinary course of nature. He also examined the weapon of offence i.e. Belan and gave an expert opinion in his report Ex. PW-31/B that injury no. 1 to 7 found on the dead body could be caused by the said belan or any weapon similar to it. Thus, the weapon used in the commission of offence i.e. Belan matches with the expert opinion of Dr. Jitin Bodwal.
126. PW-31 Dr. Jitin Bodwal in his cross-examination deposed that a dead body starts decomposing after 48 hours and when body is preserved in mortuary, the process of decomposition becomes very slow. It means that in a cool environment, the process of decomposition becomes very slow and in hot environment having no ventilation, the process of decomposition will become fast. In the present case, the plastic katta/bag containing dead body of deceased was opened after about 44 hours of deceased Lakhan Singh being seen alive. The dead body was in a polythene having no ventilation and it was month of May and summer was at its peak and the body had started decomposing and hence, the time since death matches with the expert opinion of PW-31 Dr. Jitin Bodwal. Similarly, in his post mortem report Ex. PW-31/A, Dr. Jitin Bodwal has mentioned the probable time since death was 8-9 days.
FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 66 of 75 As per prosecution story, the death took place on the intervening night of 12- 13.05.2012 and the post mortem was conducted on 21.05.2012. Thus, from this angle also, the time since death as per the prosecution story matches with the expert opinion of PW-31 Dr. Jitin Bodwal.
127. In his cross-examination of PW-31 Dr. Jitin Bodwal, question was put by the Ld. Defence counsel that if seven blows are given with the said wooden belan, whether blood, hair/cell of body would appear on the belan. To this, PW-31 Dr. Jitin Bodwal replied that it is correct that there is every possibility that blood, hair/cell of body would appear on the belan if seven blows are given with the said wooden belan on the head of deceased. PW-4 Sh. Love @ Deepak has specifically deposed that at the time of recovery of bichhona, belan and handkerchief, there were blood stains and some hair. Similarly, PW-35 SI Pawan Kumar also deposed that the belan, bedsheet (bichhona) and handkerchief having blood stains. Similarly, PW-36 Insp. Harish Kumar also deposed that the bedsheet, belan and handkerchief were blood stained and some hair were also found on the bedsheet and the belan. The said articles were seized by the IO and were sent to FSL. The complete chain of custody of the said articles from the point of seizure to the point of opening the same at FSL by the forensic expert has been proved by the prosecution. PW-32 Ms. Suneeta Gupta, Senior Scientific Officer, Biology, FSL, Rohini has examined the exhibits i.e. Plastic katta, jute sack, plastic polythene, bichoona, peticot, plastic jar, handkerchief, clothe pieces of deceased, clothes of accused persons, wooden belan and other articles mentioned in her detailed report Ex. PW-32/A dated 11.12.2012. At serial no. 12, it has been specifically mentioned that the wooden belan has some hair FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 67 of 75 and having faint brown stains. Thus, it has been corroborated that the wooden belan has been used in the commission of offence.
128. Similarly, as per FSL report Ex. PW-32/A, blood was detected on plastic katta, jute sack, plastic polythene, bichoona, handkerchief, stone pieces, earth control, blood guage of deceased, clothes of deceased, baniyan of accused Ram Gopal Rai @ Ram Iqbal Rai, pant and t-shirt of accused Sanjay Yadav, cemented stone pieces of plaster of wall of the room where the alleged offence took place. However, the DNA examination of said articles was done by PW-33 Ms. L. Babyto Devi, Assistant Director, Biology and she proved her report Ex. PW-33/A and deposed that DNA profile could not be generated due to degradation of samples. The said examination was done on 28.02.2013 i.e. after few days of the preparation of FSL Report Ex. PW 32/A.
129. Thus, from report Ex. PW-32/A, it has come on record that the blood was found on the clothes of accused Ram Gopal Rai and Sanjay Yadav as well as on the wall of the room where accused Ram Gopal Rai @ Ram Iqbal Rai was residing as a tenant. Similarly, PW-21 SI Pankaj Kumar, Incharge Crime Team, Central District, deposed that on 26.05.2012 at an instance of IO, PW- 36 Insp. Harish Kumar, he went to house no. 16/334E, fourth floor, Bapa Nagar and he noticed brown marks on the wall and photographs were taken by HC Tara Chand. He proved his report Ex. PW-21/B in this regard. Similarly, PW-23 HC Tara Chand deposed on the lines of PW-21 SI Pankaj Kumar and also proved the photographs Ex. PW-14/G4 to Ex. PW-14/G10, Ex. PW-14/G12 along with the negatives of the room where the alleged incident took place. PW-35 SI Pawan and PW-36 Insp. Harish Kumar have also deposed that there were brown marks on the plaster wall of the room FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 68 of 75 where the alleged incident took place. Accused Ram Gopal Rai @ Ram Iqbal Rai has failed to explain the said brown marks on the wall of the room where he was residing as a tenant and where the alleged incident took place. Accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav has failed to explain as to how, the blood was found on their clothes. It is also pertinent to mention that dead body of deceased Lakhan Singh was found at the distance of 250/300 meters from the house of accused Ram Gopal where he used to reside as a tenant and this fact has been specifically stated by PW-30 Ct. Rakesh.
130. Accused persons namely Sanjay Yadav and Seema have also been charged u/s 420/471 IPC for decieving the shopkeepers for obtaining SIM card nos. 8802613580 and 8130974184 by using the fake ID cards.
131. The CAF of mobile phone no. 8802613580 has been proved by PW-19 Sh. Shishir Malhotra, Nodal Officer, Aircel Limited exhibited as Ex. PW- 19/A. PW-19 Shishir Malhotra deposed that the said sim card was issued in name of one Subhesh Singh and he had given his voter id Ex. PW-19/B at the time of obtaining the said sim card. PW-38 Sh. Subhesh Singh deposed that the voter id card Ex. PW-19/B belongs to him but the photograph and signature on customer application form Ex. PW-19/A does not belong to him. The said photograph is not of accused Sanjay Yadav and the signatures on customer application form were not sent to FSL for comparing the same with the signatures of accused Sanjay Yadav. Even the general process of issuing sim is that the photograph of ther person obtaining the sim is pasted on the form and the issuing shopkeeper compares the same with the person who is present for obtaining the same. Thus, the prosecution has failed to prove that FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 69 of 75 accused Sanjay Yadav obtained the abovesaid sim card from the shopkeeper by deceiving him or by putting his signature on the customer application form or by using the fake id document to obtain the said sim card. It seems that someone had arranged the said sim card for accused Sanjay Yadav but no proper investigation in this regard has been conducted by the investigating agency.
132. Similarly, the CAF of mobile phone no. 8130974184 has been proved by PW-17 Sh. R.K. Singh, Nodal Officer, Bharati Airtel Limited exhibited as Ex. PW-8/A. PW-17 Sh. R.K. Singh deposed that the said sim card was issued in name of Hari Om and he had given the copy of driving license as id Ex. PW-8/B at the time of obtaining the said sim card. PW-8 Hari Om deposed that he had not purchased the said sim card and however, the driving license id copy Ex. PW-8/B belongs to him but the photograph was not his but it was of one Aftab Alam brother of Jahangir Alam. The said photograph is not of accused Seema and the signatures on customer application form were not sent to FSL for comparing the same with the signatures of accused Seema. PW-18 Sh. Sanjeev Gupta, has specifically deposed that as and when a retailer sells the mobile connection to any customer, he verifies the ID proof of customer and he also checks the photograph of the customer of the ID proof documents with the person who is present for obtaining the same. In this case, the photograph pasted on the customer application form Ex. PW-8/A is of a male while Seema Devi is a female. Thus, the prosecution has failed to prove that accused Seema Devi obtained the abovesaid sim card from the shopkeeper by deceiving him or by putting her signature on the customer application form or by using the fake id document to obtain the said sim card.
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133. First IO PW-35 SI Pawan, second IO PW 36 Insp. Harish Kumar and other police witnesses have proved the proceedings conducted by them during the investigation of present case. PW-35 SI Pawan Kumar and PW-36 Insp. Harish Kumar has been cross-examined at length but the accused persons have failed to put any dent on the proceeding conducted by the IO and other police officials. Only minor contradictions have come of record which are bound to happen in any criminal trial and these minor contradiction does not affect the case of prosecution on merits.
134. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witnesses must be of sterling quality.
In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi) cited as (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness"
should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 71 of 75 position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
135. In case of Ramdas Vs. State of Maharashtra cited as (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 72 of 75 such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
136. Thus, from the above said judgments, it is clear that the version of the witnesses should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
137. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that PW 2 Shiv Kumar Sharma and PW-3 Smt. Premwati @ Mamta are the witnesses of sterling quality as their versions are natural and they have withstood the test of cross examination. This court is of the considered opinion that the testimonies of PW 2 Shiv Kumar Sharma and PW-3 Smt. Premwati @ Mamta are clear, cogent, credible, trustworthy and consistent and has been corroborated by the testimony of other prosecution witnesses as well as the medical/scientific as well as circumstantial evidence on record.
138. On appreciation of entire evidence led by the prosecution and applying the law laid down by Hon'ble Supreme Court of India in Sharad Birdichand Sharda (Supra), this court has reached on the following conclusions:
1. From the facts and circumstances of the case, the prosecution has proved reasonable doubt that deceased Lakhan Singh was lastly seen alive with accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav and thereafter, he was not seen alive and FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 73 of 75 hence, they have committed murder of deceased Lakhan Singh and their guilt has been fully established.
2. From the evidence on record, prosecution has successfully established that accused Seema Devi and Sanjay Yadav had a motive to kill deceased Lakhan Singh and all three accused persons entered into criminal conspiracy to commit his murder and any other hypotheses except that all the accused persons entered into criminal conspiracy to commit the murder of deceased Lakhan Singh and that accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav have committed the murder of deceased Lakhan Singh and the facts established by the prosecution indicating towards the guilt of accused persons is consistent.
3. The circumstances proved by the prosecution are conclusive in nature and tendency.
4. The facts established by the prosecution have excluded every possible hypotheses except the one which has been proved by the prosecution.
5. The chain of evidence led by the prosecution is so complete that it does not leave any ground for conclusion consistent with the innocene of accused persons and it has been proved by the prosecution that in all probability, all the three accused persons entered into criminal conspiracy to commit murder of deceased Lakhan Singh and accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav committed the murder of deceased Lakhan Singh.
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139. In the light of aforesaid discussion, this court is of the considered opinion that prosecution has proved its case beyond reasonable doubt against accused persons namely Ram Gopal Rai @ Ram Iqbal Rai, Sanjay Yadav and Seema Devi for the offence of criminal conspiracy to commit the murder of deceased Lakhan Singh punishable under sections 120B IPC and commission of murder of deceased Lakhan Singh by accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav in pursuance of criminal conspiracy entered by them punishable under Section 302/120B IPC. However, the prosecution has failed to prove its case beyond reasonable doubut against accused persons namely Sanajy Yadav and Seema Devi for the offence punishable under section 420/471 IPC.
140. Accordingly, accused persons namely Ram Gopal Rai @ Ram Iqbal Rai, Sanjay Yadav and Seema Devi are hereby convicted under Section 120B IPC for entering into criminal conspiracy to commit murder of deceased Lakhan Singh. Accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav are also convicted under Section 302/120B IPC for the commission of murder of deceased Lakhan Singh. Accused persons namely Sanjay Yadav and Seema Devi are hereby acquitted under Sections 420/471 IPC.
Announced in the open court on 13th day of October 2023 ( Virender Kumar Kharta) Additional Sessions Judge-(FTC)-02 Central District, Tis Hazari Courts FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 75 of 75