Delhi District Court
State vs . 1.Mohd. Shakil @ Bhola on 15 November, 2011
1
IN THE COURT OF SH. VIRENDER BHAT, A.S.J.,
DWARKA COURTS, NEW DELHI.
SC No. 106/11
Unique Case ID No.02405R1308902005
State Vs. 1.Mohd. Shakil @ Bhola
s/o Kamaludin
r/o F-81/2, Gali No. 14/5, Sadh Nagar,
Palam, New Delhi.
2.Devraj @ Devoo
s/o Surender Singh
r/o House No. 1122, Gali No. 14/5, Sadh Nagar,
Palam, New Delhi.
3.Kamal Tyagi @ Tinu
s/o Mahesh Kumar
r/o RZ-C-110/A, Gali No. 14/6, Sadh Nagar,
Palam, New Delhi.
4.Sunil s/o Mahipal
r/o A/175, Gali No. 9, Dhookna,
Mohalla Sihani Gate, Ghaziabad
Date of Institution/filing :05.06.2005.
FIR No.35/05 dated
U/s. 302/201/120B IPC
P.S. Mahipalpur
Date of reserving judgment/Order :18.10.2011
Date of pronouncement :15.11.2011
JUDGMENT
1. This case relates to and concerns the murder of a young and budding advocate namely Deepak Parashar, whose dead body was discovered in the morning of 18.3.2005 near an underpass ahead of village Shahbad Mohd. Pur, Mahipalpur, Delhi.
SC No.106/11 Page 1 of 59 22. Prosecution alleges that the deceased was engaged as a Counsel by accused Mohd. Shakeel, Devraj and Kamal Tyagi to defend them in various criminal cases, however, the accused did not pay the fees regularly to the deceased as per his demands. The deceased used to demand his professional fee from these three accused but the accused avoided paying the same. The accused had become fed up with the regular demands of fee made by the deceased and also for the reason that they suspected him of leaking their details/activities to one Kishan Solanki of the same village. Accordingly, they had hatched a plan alongwith a fourth accused namely Sunil, who is the maternal uncle of accused Kamal Tyagi to do away with the deceased.
3. It is further case of prosecution that the deceased called accused Mohd. Shakeel @ Bhola in the evening of 17.3.2005 on his mobile phone and demanded his fee. At that time, all the aforesaid three accused were present together in a Wagon-R car bearing No. DL7CD-1466, belonging to accused Kamal Tyagi. Accused Shakeel asked the deceased to come to the main road near Mahavir Enclave to collect the fee. The accused took the deceased in said Wagon-R car which was being driven by accused Shakeel. In the running car itself, accused Devraj shot on the chest of the deceased. Thereafter accused Shakeel also shot at him and he also stabbed him inside the car. Accused Kamal Tyagi strangulated the deceased by pressing his neck and in the process, he suffered injuries on his right hand by knife. In the process, the deceased breathed his last inside the vehicle. Thereafter they threw the dead body of the deceased near the Flyover near Railway Line in village Shabad Mohd. Pur. Further allegation is that the key of the motorcycle on which the deceased has come on being called by the accused, was recovered at the instance of accused Kamal Tyagi and the motorcycle was found SC No.106/11 Page 2 of 59 3 abandoned near the STD Booth of Sh. Sunil Solanki. It is stated that accused Dev Raj got recovered the wrist watch of the deceased in village Shahbad Mohd. Pur. From another spot in the same village, accused Mohd. Shakeel is alleged to have got recovered the purse of the deceased containing his I-card, visiting cards etc.
4. It is also the case of prosecution that since the blood of the deceased has fallen excessively inside the car, it was taken by accused Sunil to fields in village Mahmudabad, PS Morad Nagar, Distt. Ghaziabad and burnt it there in order to destroy the evidence of crime. It is also alleged that in the process he suffered burn injuries on the front portion of his body and his shirt also got burnt. The burnt car and burnt shirt of the accused Sunil were recovered from the said spot in village Mahmudabad at his instance, as mentioned in the charge sheet.
5. All the four accused, after being arrested, were charge sheeted for having committed offences punishable u/s 302/201/120B IPC.
6. Upon committal of the case to the court of Sessions following charges were framed against the accused on 12.09.2005:-
CHARGE I, Indermeet Kaur Kochhar, Addl. Sessions Judge, New Delhi, do hereby charge you ( Mohd. Shakeel @ Bhola s/o Kamaludin, (2)Dev Raj @ Devoo s/o Sh/ Surender, (3) Kamal Tyagi s/o Mahesh Kumar and (4) Sunil Kumar s/o Mahipal as under:-SC No.106/11 Page 3 of 59 4
"That on and before 17.3.2005, you all had entered into a criminal conspiracy to commit the murder of deceased Deepak and thereby you all are guilty of offence under Section 120B of the IPC and within the cognizance of this Court.
Secondly that on 17.03.2005, you all in furtherance of your criminal conspiracy had committed the murder of deceased Deepak in Wagon R bearing Registration NO. DL7CD-1466 whose dead body had been recovered on 18.3.2005 from Pulia Indian Oil Corporation Road near Rewari Delhi Railway Line, in between fatak of Shabad Mohd. Pur and Bharthal and thereby you all are guilty of offence u/s 302 read with Section 120B of the IPC and within the cognizance of this Court.
Thirdly that on or before 18.3.2005, you all in furtherance of your criminal conspiracy, knowing that the murder of Deepak had been committed, had caused the evidence of the commission of that offence to disappear by burning the Wagon R bearing Registration No. DL 7CD-1466 in which the murder had been committed owned by you accused Kamal Tyagi with the intention of screening yourselves from legal punishment and thereby you all are guilty of offence under Section 201 read with 120B of the IPC and within the cognizance of this court."
7. The prosecution has examined 48 witnesses to bring home the guilt of the accused. The accused in their statements u/s 313 Cr.P.C. denied their involvement in the murder of the deceased and also denied every incriminating circumstances put SC No.106/11 Page 4 of 59 5 to them. The accused Kamal Tyagi and Sunil examined Nodal Officer of M/s. Tata Tele Services as DW-1. The other accused did not lead any evidence in their defence. DW-1 has proved the call detail records of Mobile Phone No. 9212041477, being in the name of and used by Sh. Rajesh Kumar (PW-9) as Ex. DW1/B. He also proved the certificate u/s 65 B Evidence Act as Ex. DW1/A, the copy of application form submitted by Rajesh Kumar as Ex. DW1/C and photocopy of his driving licence, as proof of his identity and residence, as Ex. DW1/D. The call details are from 01.03.2005 to 31.3.2005.
8. The particulars of the witnesses examined by the prosecution and the documents proved by them respectively are as under:-
List of Witnesses examined Witnes Name of the Witness examined s No. PW1 Sh. Rohit Sharma PW2 Ashwani Kumar PW3 Constable Sarla Yadav PW4 Jasminder Singh PW5 Suresh Solanki PW6 Sunita PW7 Tehvir PW 8 Vikas PW 9 Rajesh Kumar PW 10 Dr. Samarjeet PW 11 HC Amar Chand PW 12 Sita Ram PW 13 HC Swaraj PW 14 HC Chittar Mal PW 15 HC Sunder Lal SC No.106/11 Page 5 of 59 6 PW 16 Sh. V.K. Khanna (ADJ,THC) PW 17 Dr. Gaurav Vinod Jain PW 18 Ct. Hardeep PW 19 HC Nihal Singh PW 20 HC Ramesh Kumar Rathi PW 21 HC Ramphal Singh PW 22 SI Rambir Singh Tomar PW 23 HC Parvir Singh PW24 Captain Rakesh Bakshi PW25 ASI Joginder Pal PW26 Sh. Babu Lal PW27 SI Anil Kumar PW 28 ASI Dharamvir Singh PW 29 HC Baljeet Singh PW 30 SI Rang Lal Meena PW 31 Raj Kumar Yadav PW 32 Sanjeev Sherawat PW 33 HC Kishan Pal PW 34 Babu Lal PW 35 HC Ramdhari PW 36 Dr. Chanderkant PW 37 Mehendra Singh PW 38 Ct. Subhash PW 39 HC Ashok Kumar PW 40 Dr. Anshumali Mishra PW 41 Dr. Sugnadha Arya PW 42 Sh. V. Sankaranarayanan PW 43 Sh. Jitender Kumar PW 43A Inspector Satyabir Janola PW 44 Sh. Atul Pandey PW 45 Dr. Devender Kumar PW 46 Sh. Dharmender PW 47 Sh. L.K. Mishra, Plastic Surgeon PW 48 Insp. Rampal Singh SC No.106/11 Page 6 of 59 7 Exhibit Date of Details of Exhibited No. Statement documents PW1: Sh. Rohit Sharma Ex 27-10-05 Inquest Paper PW1/A Ex -do- Statement regarding PW1/B identification of dead body of the deceased Ex -do- Receipt regarding receiving of PW1/C dead body of the deceased Ex -do- Handing over Memo PW1/D Ex D1 -do- Photocopies of three files of the to D3 cases of accused persons being conducted by the decreased Ex P1 -do- The Maxima Watch worn by the deceased Ex P2 -do- A key with Key ring Ex -do- TIP Proceedings of case PW1/E property Ex P3 30-01-06 Pant of the deceased Ex P4 -do- T-Shirt of the deceased Ex P5 -do- Baniyan of the deceased Ex P6 -do- Underwear of the deceased Ex -do- DD No. 37B PW1/DA Ex -do- Statement PW1/DB PW2: Ashwani Kumar Ex 27-10-05 Statement regarding PW2/A identification of dead body of the deceased PW3: Ct. Sarla Yadav PW3/DA 30-01-06 Copy of DD No. 37B (Missing Report) SC No.106/11 Page 7 of 59 8 PW4: Jasminder Singh (No exhibits) PW5: Suresh Solanki Ex 21-03-06 Statement U/s 161 Cr.Pc PW5/DA PW6: Sunita Ex 07-07-06 Seizure cum Pointing Out Memo PW6/A (Burnt Car) PW7: Tejvir Ex PX 07-07-06 Burnt Vehicle PW8: Vikas Ex 07-07-06 Handing Over Memo (Bill Book) PW8/A Ex -do- Bill No. 440 PW8/B PW9: Rajesh Kumar Mark 14-01-06 Documents BX PW10: Dr. Samarjeet Ex PW 29-08-06 Memo (Handing over of register 10/A to Police) Mark A -do- Photocopy of Register PW11: HC Amar Chand Ex -do- Copy of DD No. 6 dated PW11/A 18-03-05 Ex -do- Copy of FIR PW11/B Ex -do- Endorsement on the Rukka PW11/C SC No.106/11 Page 8 of 59 9 Ex -do- Copy of DD No. 36 dated PW11/D 20-03-05 A Ex -do- Copy of DD No. 5 dated PW11/D 21-03-05 B Ex -do- Copy of DD Entry regarding PW11/D accident case at 11:45 a.m. C Ex -do- Copy of DD Entry regarding PW11/D return of SI Rang Lal at Police D Station at 12:30 afternoon Ex -do- Photocopy of DD Entry regarding PW11/D return of SHO Rampal Singh at E P.S. Along with other staff after investigation & arrest of some accused PW12: Sita Ram Ex 18-05-07 Photocopy of R/C of Wagon R No. PW12/A DL 7CD-1466 PW13: HC Swaraj (No Exhibits) PW14: HC Chhittar Mal (No Exhibits) PW15: HC Sunder Lal Ex 31-08-07 Photographs of Wagon R & PW15/A photographs near the bushes at
-1 to the spot A-14 Ex -do- Negatives of photographs Ex PW15/A PW15/A-1 to A-14
-15 to A-28 PW16: Sh. V.K. Khurana, ADJ, Tis Hazari Courts Ex 31-08-07 Application for conducting TIP of PW16/A Case Property SC No.106/11 Page 9 of 59 10 Ex -do- TIP Proceedings of Case Property PW16/B Ex -do- Necessary Certificate Appended PW16/C PW17: Dr. Gaurav Vinod Jain, Asstt. Prof. Deptt.
Of Forensic Medicine,
Safdarjung Hospital
Ex 06-11-07 P.M. Report
PW17/A
PW18: Ct. Hardeep, Asstt. Draughts Man, P.S. Vasant Kunj Ex 06-11-07 Scaled Site Plan PW18/A PW19: HC Nihal Singh (No Exhibits) PW20: HC Ramesh Kumar Rathi (No Exhibits) PW21: HC Ramphal Singh (No Exhibits) PW22: SI Rambir Singh Tomar, SO to New Delhi Range, PCR PW22/A 19-04-08 Disclosure Statement of Sunil Kumar PW23: HC Parvir Singh, Photographer Ex 12-05-08 Photographs taken at the scene PW23/P of crime
-1 to P-11 Ex -do- Negatives of photographs Ex PW23/P PW23/P-1 to P-11
-12 to P-22 SC No.106/11 Page 10 of 59 11 PW24: Captain Rakesh Bakshi, Security Manager, Bharti Cellular Limited Ex 21-05-08 Call Details of Mobile No. PW24/A 9871226307 Ex -do- Call Details of Mobile No. PW24/B 9818577457 PW25: ASI Joginder Pal (No Exhibits) PW26: Sh. Babu Lal, LDC, Office of Transport Authority, South West Zone Palam (No Exhibits) PW27: SI Anil Kumar Ex 10-09-08 Attested copy of the cell ID of PW27/A Airtel giving details of towers Ex -do- Call Details of MTNL Garud PW27/B Mobile Phone No. 20049846 Ex -do- Call Details of Reliance Mobile PW27/C Phone No. 9350271518 Ex -do- Cell ID regarding towers of PW27/D Reliance Mobile Phone PW28: ASI Dharamvir Singh Ex 11-11-08 Seizure Memo (Written PW28/A Complaint) Mark A -do- Written Complaint 28 PW29: HC Baljeet Singh (No fresh exhibits) PW30: SI Rang Lal Meena Ex 18-05-09 Disclosure Statement of Kamal PW30/A Tyagi 1 Ex -do- Disclosure Statement of Mohd PW30/A Shakeel 2 SC No.106/11 Page 11 of 59 12 Ex -do- Disclosure Statement of Dev Raj PW30/A @ Debu 3 Ex -do- Pointing Out Memo prepared at PW30/A the instance of Kamal Tyagi Ex -do- Pointing Out Memo prepared at PW30/B the instance of Mohd Shakeel Ex -do- Pointing Out Memo prepared at PW30/C the instance of Dev Raj @ Debu Ex -do- Pointing Out cum Seizure Memo PW30/D of the key (P-2) Ex -do- Seizure Memo of the wrist watch PW30/E (P-1) Ex -do- Seizure Memo (Rexion Purse) PW30/F Ex -do- Pointing Out Memo (Mobile PW30/G Phone of make Nokia Model 6600) Ex P7 -do- I Card of deceased Deepak Kumar of Bar Counsel Ex P8 -do- One currency note of denomination of Rs. 100/-
Ex P9 -do- One coin or Rs. 1/- Ex P10 -do- Seven visiting cards in the name of Deepak Kumar Parashar Advocate, Delhi High Court (1 to
7) Ex P11 -do- Telephone Diary bearing the name of stamp of Deepak K. Parashar Ex P12 -do- One Piece of paper bearing some dates, FIRs and address and particulars of case State Vs Gurmeet, FIR -302/02, U/s 279/338 PS Dabri, NDH 26/7/05 and particulars of two other FIRs No 172/04, U/s 329/397, PS Moti
-5.4.05 and FIR No 775/04, PS Sultanpuri Court No 341, Date-19/02/05, SC No.106/11 Page 12 of 59 13 Ex P13 18-05-09 Mobile Phone of make Nokia 2100 recovered from accused Kamal Tyagi Ex P14 -do- Other phone of make Nokia of dark blue and silver colour Ex -do- Statement U/s 161 Cr.Pc PW30/ D1 PW31: Sh. Raj Kumar Yadav, Asstt. Nodal Officer Ex 16-07-09 Authorization Letter PW31/ A Ex -do- Customer Application Form PW31/ B Ex -do- Voter ID Card PW31/ C PW32: Sh. Sanjay Sherawat Ex 17-07-09 Record of Sh. Deepak Kumar, PW32/ Advocate consisting of application A of Bar Council of Delhi for enrolment along with the supporting documents of educational qualification/ character certificate/ proof of residence PW33: HC Kishan Pal Ex 28-07-09 Seizure Memo PW33/ A Ex P-X -do- Car Ex -do- One small plastic bottle having a PW33/ label mentioning FSL No. P-1 2005/B-1408 Ex No.1 containing blood stained earthy material SC No.106/11 Page 13 of 59 14 Ex -do- Cloth in which the plastic bottle PW33/ was sealed with seal of RPS P-2 Ex -do- One small plastic bottle having a PW33/ label mentioning FSL No. P-3 2005/B-1408 Ex No.2 containing earthy material Ex -do- Cloth in which the plastic bottle PW33/ was sealed with seal of RPS P-4 Ex -do- One small plastic bottle having a PW33/ label mentioning FSL No. P-5 2005/B-1408 Ex No.3 containing blood stained earthy material Ex -do- Cloth in which the plastic bottle PW33/ was sealed with seal of RPS P-6 Ex -do- One small plastic bottle having a PW33/ label mentioning FSL No. P-7 2005/B-1408 Ex No.4 containing cemented material Ex -do- Cloth in which the plastic bottle PW33/ was sealed with seal of RPS P-8 Ex -do- One small plastic bottle having a PW33/ label mentioning FSL No. P-9 2005/B-1408 Ex No.5 containing blood gauze Ex -do- Cloth in which the plastic bottle PW33/ was sealed with seal of RPS P-10 Ex -do- Pandel with read thread PW33/ P-11 Ex -do- Cloth in which the plastic bottle PW33/ was sealed with seal of RPS P-12 Ex -do- One small plastic bottle having a PW33/ label mentioning FSL No. P-13 2005/B-1408 Ex No.5 containing gold ring with white stone SC No.106/11 Page 14 of 59 15 Ex -do- Cloth in which the plastic bottle PW33/ was sealed with seal of RPS P-14 Ex -do- One small plastic bottle having a PW33/ label mentioning FSL No. P-15 2005/B-1408 Ex No.5 containing piece of blood stainted printed cloth sheet Ex -do- Cloth in which the plastic bottle PW33/ was sealed with seal of RPS P-16 Ex -do- Statement U/s 161 Cr.Pc PW33/ D-1 PW34: Sh. Babu Lal, LDC Transport Authority, South West Zone, Palam Ex -do- Computerized copy of record of PW34/ ownership of motorcycle bearing A registration No. DL 9SM 4663 PW35: HC Ramdhari Ex 20-10-09 Photocopy of RC No. 4/21 PW35/ A Ex -do- Photocopy of RC No. 5/21 PW35/ B Ex -do- Photocopy of RC No. 7/21 PW35/ C PW36: Dr. Chandra Kant, Professor Forensic Medicines Vyedehi Medical College, Banglore Ex 27-10-09 MLC of Kamal PW36/ A SC No.106/11 Page 15 of 59 16 PW37: Mahendra Singh, Sub Division Engineer (Legal) CDMA, MTNL Ex 27-10-09 Detailed report with regard to non PW37/ availability of desired CDRs for A telephone No. 20049846 for the period from 16-03-05 to 18-03-05 PW38: Ct. Subhash Ex 25-11-09 Involvement of accused persons PW38/ in other cases A-1 Ex -do- Duly attested record in respect of PW38/ accused Dev Raj @ Debo A Ex -do- Duly attested record in respect of PW38/ accused Shakeel @ Bhola B Ex -do- Duly attested record in respect of PW38/ accused Kamal Tyagi C PW39: HC Ashok Kumar Ex 19-01-10 Arrest Memo of Kamal Tyagi PW39/ A Ex -do- Arrest Memo of Dev Raj @ Debo PW39/ B Ex -do- Arrest Memo of Mohd. Shakeel PW39/ C Ex -do- Arrest Memo of Sunil Kumar PW39/ D Ex -do- Personal Search Memo of Kamal PW39/ Tyagi E Ex -do- Personal Search Memo of Dev Raj PW39/ @ Debo F SC No.106/11 Page 16 of 59 17 Ex -do- Personal Search Memo of Mohd.
PW39/ Shakeel
G
Ex -do- Personal Search Memo of Sunil
PW39/ Kumar
H
PW40: Dr. Anshumali Misra, SR, Deptt. Of Burns, Plastic & Maxillofacial Surgery, Safdarjung Hospital Ex 07-01-10 MLC No. 3708 dated 21-03-05 of PW40/ Sunil A Ex -do- Authorization Letter issued by Dr. PW40/ R.P. Narain B PW41: Dr. Sugandha Arya, Paediatrician, Safdarjung Hospital Ex 07-01-10 Authorization Letter PW41/ A PW42: Sh. V. Sankaranarayanan, Sr. Scientific Assistant (Biology), FSL, Rohini Ex 22-01-10 Description of articles contained PW42/ in the parcels mentioned in the A report Ex -do- Serological Report PW42/ B PW43: Sh. Jitender Kumar, Sr. Scientific Assistant (Chemistry), FSL, Rohini Ex 22-01-10 Description of articles contained PW43/ in the parcels and the result of A examination SC No.106/11 Page 17 of 59 18 PW43A: Insp. Satyabir Janola Ex 03-02-10 Rukka PW43/ A Ex 04-02-10 Seizure Memo (remnants of burnt PW43/ Wagorn R Car bearing A/P-1 Registration No. DL-7C D-1466 Ex -do- Seizure Memo (five sealed PW43/ exhibits along with two sample A/P-2 seals of deptt. Of Forensic Medicines Safdarjung Hospital Ex -do- Seizure Memo (Blood Sample of PW43/ accused Kamal Tyagi duly sealed A/P-3 with the seal of SJH along with the sample seal Ex -do- Piece of Cloth in which wrist (Ex P-2/A- P-1) watch was sealed with the 1 seal of RPS Ex -do- Piece of Cloth in which key P-2/A alongwith the key ring (Ex P-2) watch was sealed with the seal of RPS Ex 04-02-10 Seizure Memo (Mobile Phone with PW43/ sim card recovered from the A/P-4 accused Kamal Tyagi) Ex -do- Seizure Memo (Mobile Phone with PW43/ sim card recovered from the A/P-5 accused Mohd Shakeel @ Bhola) Ex -do- Remnants of the car on opening P-15 the plastic gunny bag Ex 05-02-10 Statement U/s 161 Cr.Pc PW43A /D-1 Ex -do- Statement U/s 161 Cr.Pc PW43A /D-2 PW44:Sh. Atul Pandey, Ahlmad in the court of Sh. Sudesh Kumar, ld. MM, Tis Hazari Courts, Delhi.SC No.106/11 Page 18 of 59 19
Ex 03-02-10 Order sheet dated 17.07.2004 PW44/ showing the name of deceased A Deepak Parashar, advocate appearing on behalf of all the accused.
Ex -do- Photocopy of order sheet dated
PW44/ 2.5.2006 in case FIR No. 819/01,
B PS Dabri acquitting the accused.
PW45:Dr. Devender Kumar, Medical Officer, Community Health Center, District Bagpat, UP.
Ex 03-02-10 MLC of Dev Raj @ Deboo
PW45/
A
Ex -do- MLC of Mohd Shakeel @ Bhola
PW45/
B
PW:46 Sh. Dharmender, LDC in the Office of ACMM No.1, Sh. Ashutosh Kumar, Rohini Court(Data Scanning Branch).
Ex 04-02-10 Photocopy of the order sheet
PW46/ dated 28.3.2008 in case FIR No.
A 343/02 PS Dabri.
Ex -do- Photocopy of order sheet dated
PW46/ 01.11.2004 mentioning the name
B of deceased Deepak Parashar,
Advocate for the accused on bail.
Ex -do- Photocopy of order sheet dated
PW46/ 2.2.2005, mentioning the name of
C deceased Deepak Parashar,
counsel for accused/applicant
Amit Sangwan.
Ex -do- Photocopy of order sheet dated
PW46/ 4.3.2005 showing the name of
D deceased Deepak Parashar, as
advocate for other accused.
Ex -do- Photocopy of application for
PW46/ issuance of release warrant of
E accused Amit Sangwa dated
1.2.2005.
SC No.106/11 Page 19 of 59
20
Ex -do- Photocopy of bail bond of accused
PW46/ Rahat Hussain.
F
Ex -do- Photocopy of bail bond of accused
PW46/ Anurag Pandey.
G
Ex -do- Photocopy of bail bond of accused
PW46/ Amit Sangwan presented by
H deceased Deepak Parashar,
advocate.
Ex -do- Photocopy of bail bond of accused
PW46/J Ravinder Mehta presented by
deceased Deepak Paashar,
Advocate.
Ex -do- Photocopy of an application dated
PW46/ 25.08.2004 moved by Sh. Deepak
K Parashar, Advocate for personal
exemption of accused Anurag
Pandey.
PW46/ -do- Photocopy of an application for
L issuance of production warrants
of accused Amit Sangwan dated
25.08.2004 bearing signatures of
deceased Deepak Parashar,
Advocate.
Ex -do- Photocopy of bail bond of accused
PW46/ Shakil Ahmed @ Bhola presented
M by Sh. Deepak Kumar, advocate.
Ex. -do- Photocopy of bail bond of accused
PW46/ Rahat Hussain presented by
N deceased Deepak Parashar
advocate.
Ex. -do- Photocopy of bail bond of accused
PW46/ Anurag Pandey presented by
P deceased Deepak Parashar,
advocate.
SC No.106/11 Page 20 of 59
21
PW47:Sh. L.K. Mishra, Plastic Surgeon, SUM Hospital, Bhubaneswar Orissa.
Ex 10.03.2010 MLC of accused Sunil
PW47/
A
PW48:Inspector Rampal Singh, IO of the case.
Ex 24-05-10 Site Plan
PW48/
A
Ex -do- Application for conducting the
PW48/ postmortem of the dead body
B
Ex -do- Brief Facts
PW48/
C
Ex 26-08-10 Seizure Memo (Photocopy of OPD
PW48/ Register)
D
Ex -do- Statement of Vikas Yadav
PW48/
E
Ex -do- Application moved before the
PW48/ Transport Authority and its Report
F
Ex -do- A letter issued by Bar Council of
PW48/ Delhi to the effect that deceased
G was enrolled as an Advocate.
Ex -do- The report regarding ownership of
PW48/ accused Kamal Tyagi of burnt car
H bearing No. DL7CD-1466
Ex -do- Involvement in cases (Kamal
PW48/J Tyagi)
Ex -do- Involvement in cases (Mohd.
PW48/ Shakeel @ Bhola)
K
Ex -do- Involvement in cases (Dev Raj @
PW48/ Deboo)
L
SC No.106/11 Page 21 of 59
22
Ex 11-08-10 Seizure Memo
PW48/
M
Ex -do- Submission of FSL/CFSL Report
PW48/
N
Mark -do- Copy of PCR Form-I
PW48/
N-1
Mark A 03.02.2010 A complaint made by accused
Kamal Tyagi agaisnt Billu @
Krishan Solanki & his associates
Mark A Copy of OPD Register
Ex 26-08-10
PW48/
X
Ex Dark Brown Coloured Purse
PW48/
P-1
9. I have heard ld. APP, ld. Counsels appearing for the accused and have perused the entire material on record.
10. Ld. APP submitted that the evidence on record establishes that the deceased was last seen in the company of the accused Mohd. Shakeel, Devraj and Kamal Tyagi in the later hours of 17.03.2005 and thereafter his dead body was found in the morning of 18.03.2005. He submitted that it has been proved that the accused took the deceased alongwith them in the wagon R car of accused Kamal Tyagi. He further submitted that there is evidence on record to show that since the said car got blood stains which could not be removed, the car was given to accused Suneel, who as per the mutually discussed plan, took the same to vacant fields in Village Mehamudabad, District Morad Nagar, UP and burnt it in order to destroy the evidence of crime. According to him the motive of the crime is very clear. The deceased was the lawyer of SC No.106/11 Page 22 of 59 23 the accused and was defending them in various criminal cases but they did not pay his fees. They had got fed up with the regular demands of fee made by the accused and accordingly killed him as per a well thought plan. He submitted that prosecution has been successful in establishing the chain of events which lead to the death of the deceased and every link in the chain points to the guilt of the accused.
11. Per contra, it was submitted on behalf of the accused that there are various missing links in the chain of events brought forth by the prosecution relating to death of the deceased besides their being contradictions in the statements of material witnesses. It was submitted that the circumstantial evidence produced in this case against the accused does not point towards their guilt but to their innocence. It was submitted that the prosecution has failed to prove the motive for the crime, which is essential in the cases based upon circumstantial evidence. They submitted that no evidence has been lead by the prosecution to prove that deceased was lawyer of the accused or any fee was payable by the accused to him or that he was asked by Mohd. Shakil to come and collect his fee. They also argued that recovery of various articles allegedly at the instance of accused cannot be believed as no public person is witness to same. They argued that non-recovery of weapon of offence at the instance of the accused also points to their innocence. It was also argued that the Wagon R car had caught fire due to short circuit while being driven by accused Sunil and it was not burnt by him as alleged by prosecution. The ld. Defence counsels submitted that evidence on record goes to show that the accused are innocent and they have been implicated falsely in this case.
12. Needless to mention that the ld. APP as well as ld.
SC No.106/11 Page 23 of 59 24Defence counsels took me through whole material on record which includes voluminous oral as well as documentary evidence.
13. By now it is evident that the case of the prosecution rests squarely on the circumstantial evidence. There is no direct eye witness to the crime. Experience shows that very rarely are crimes committed in full public view at a public place. Often the crimes including murder are accomplished secretly, far from public gaze so as to avoid their detection. In such cases the culprits are tracked either on the basis of last seen evidence or other circumstances appearing on the scene including motive of the crime, from which their guilt is inferred. Such type of evidence is known as "circumstantial evidence". In cases based upon circumstantial evidence, burden upon the prosecution is heavier to prove each and every circumstance leading to the death of the deceased, beyond any reasonable doubt. The facts and circumstances so established should lead to only one inference i.e. the guilt of the accused and should be incapable of any other explanation. The chain of events so proved should be complete without any missing link in the same so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
14. In Krishan Vs. State represented by Inspector of Police (2008) 15 SCC 430, the Supreme Court after considering a large number of its earlier judgments observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of definite tendency SC No.106/11 Page 24 of 59 25 unerringly pointing towards guilt of the accused;
(iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else, and
(iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
15. While bearing the aforesaid principles in mind, let me now scrutinize the evidence lead by the prosecution in the instant case.
16. From the evidence on record facts noted below emerge undisputed. The deceased Deepak Kumar was a practicing advocate. He was enrolled with Bar Council of Delhi vide enrollment No. D/1398/2002 dated 23.09.2002. His application for enrollment is Ex. PW32/A. His dead body was discovered in the morning of 18.03.2005 at about 8 am some distance ahead of village Shahbad Mohamudpur before the underpass. The postmortem examination of the dead body was conducted by PW-17 on 19.03.2005 from 10.10 a.m. to 01.10 p.m. The postmortem report is Ex. PW17/A. As per this report and the testimony of PW-17, following external injuries were found on the body of the deceased:-
1. There was reddish abrasion 4 cm x 3 cm over the left cheek bone and two parallel superficial lacerations measuring 4 x 0.5 cm and 2.5 cm apart present over the lower margin of the abrasion.
2. There was reddish abrasion 9 x 4 cm on the left side of SC No.106/11 Page 25 of 59 26 forehead.
3. There was reddish abrasion 1.5 x 1 cm just outer to the right eye-brow.
4. There was superficial incised wound, 1.3 x 0.5 cm on the left side of lower jaw.
5. There was an incised stab wound 2.6 x 0.5 x 9 cm over the right cheek and going downwards and backwards into the neck muscles only. One end was showing fish tailing of the margins.
6. There was an incised stab wound 2 x 0.5 x 3.5 cm just below the left ear and going downwards and forwards into the neck muscles only. One end of the wound was showing tailing and the other was showing fish tailing.
7. There was superficial incised wound with abraded margins 1 x 0.5 cm on the left side of nape of neck.
8. There was incised stab wound 3 x 0.4 x 5 cms present over the right shoulder going downwards and forwards into the muscles of the chest. One end was showing fish tailing.
9. There was a fire arm entry wound 3 x 2.5 cms present 4 cms below the left ear. The would was showing blackening and charring at the entry as well as in the track. The injury had gone till the body of second neck vertebra fracturing it and damaging the blood vessels of the neck.
10.There was fire arm wound 2 x 1.5 cms present 4 cm outer and behind injury no. 9 and going till the second neck vertebra where it was communicating with the track of injury no. 9.
11.There was fire arm entry wound 1.5 x 1 cm, 6 cms above and inner to the left nipple with blackening and charring at its inner upper part and in the track. The injury has gone along the ribs through the muscles only till the posterior axillary fold on the left from where an 8 mm jacketed bullet SC No.106/11 Page 26 of 59 27 was recovered beneath the skin. The same was labelled bullet no. 1 and sealed.
12.There was a firm arm entry wound 2 x 2 cm present 8 cm below the left nipple. The skin around the wound has been undermined due to cavitation effect of gases from the fire arm. The margins were shown gas tearing and the tissues in the track were showing blackening and charring. The injury had gone into the chest cavity and through the heart which was showing torn ventricles. It further entered the right side of the chest cavity through the mediastinal tissue, causing fracture of ninth vertebra and then going backwards through the posterior chest wall into the subcutaneous tissues from where an 8 mm bullet longer than bullet no. 1, semi-
jacketed was recovered. The same was labelled bullet no. 2 and sealed.
13.There was a firm arm entry wound 2.3 x 1.4 cm on the lower outer part of right arm. Blackening and charring was present at the entry and in the tissues of the track. The injury had gone through the muscles, sparing the bone and making an exit wound of 2.1 x 1 cm on the lower front of right arm. Tattoing was present over the front of the right arm.
14.There was a fire arm entry wound 0.5 x 0.5 cm on the upper inner side of right shin with tattoing around the wound. The injury had gone through the muscles and making an exit wound of 0.5 x 0.5 cm on the upper inner side of right leg. The entry wound was showing an abrasion collar at its lower front part.
17. PW-17 has opined the cause of death to be injuries mo. 9 and 12 produced by firearm projectile. He has also stated that these two injuries independently as well as collectively with other injuries were sufficient to cause death in ordinary course of SC No.106/11 Page 27 of 59 28 nature. He also opined that injury Nos. 9, 11, 12 and 13 were caused from contact range.
18. The opinion of PW-17 has not been challenged by any of the accused as he has not been cross examined. Hence it is established that the deceased was fired upon from very close range i.e. contact range and the gunshot injuries, mainly below the left ear and below the left nipple proved to be fatal.
19. Time of death has been opined to be 1 ½ days before the postmortem examination, which implies that deceased may have been killed around 10 pm on 17.03.2005.
20. The external injuries found on the dead body, as noted hereinabove, manifest that deceased was brutally beaten, stabbed and shot at from very close range by more than one person. There remains no doubt that death of the deceased was homicidal and caused by more than one person.
21. This brings me to the question as to whether the accused caused the death of the deceased.
22. The deceased is stated to have left his home on 17.03.2005 at about 7 pm. and thereafter went missing. Since the deceased did not return home till next morning, his brother (PW-1) lodged a missing report which was recorded in PS Dabri as DD No. 37B and has been proved as Ex. PW1/DA. I find it necessary to reproduce the brief contents of said DD entry hereunder:-
"My brother Deepak Sharma s/o Ram Avtar Sharma left his home for some undisclosed place, without informing anybody, on 17.03.2005 at SC No.106/11 Page 28 of 59 29 about 7 pm and was wearing cream colour t-shirt, blue colour jeans pant and a Hawai chappal. He is medium built, having round fact, wheatish complexion and 5',8" tall. We don't suspect anybody".
23. In his statement dated 18.03.2005, (Ex. PW1/DB) recorded by police u/s 161 Cr.P.C., after he identified the dead body of his brother in Safdarjung Hospital Mortuary, PW-1 again does not name any suspect responsible for the killing of his brother. He states that when he returned home on his motorcycle, his brother i.e. the deceased left on the same motorcycle saying that he would return soon. The motorcycle was Hero Honda Ambition having registration No. DL-9SN-4663. He also stated hat deceased was having mobile phone of make Nokia 6600 with connection No. 9818577457 and was wearing a Maxima wrist watch. He was wearing a golden pendant around neck and a white colour ring. He also stated that deceased had parked the motorcycle near STD shop of Suresh Solanki saying that he will be coming soon.
24. It is in his supplementary statement recorded by Police u/s 161 Cr.P.C. on 19.03.2005 that PW-1 raised suspicion about the hand of accused Mohd. Shakeel, Dev Raj and Kamal Tyagi in the killing of his brother. He states that his brother (deceased) was defending the cases against these three accused. The deceased had told him that they are bad charactered persons and for that reasons has to take up their briefs. About few days before, these three accused had come to the deceased and abused him. The deceased told him hat he had demanded his fee from them on which they have threatened him that they will see him. He suspected that these three persons have killed his brother out of SC No.106/11 Page 29 of 59 30 vengeance.
25. The statement of the brother of the deceased before the court as PW-1 is reiteration of his statements dated 18.03.2005 and 19.03.2005 recorded by Police, if taken together. He has deposed that :-
"On 17.3.05, at about 7/7.30 pm my brother Deepak Parasar met me at Old Som Bazar Wali Gali while I was returning home on motorcycle and my brother was going towards road side on foot. I handed over motorcycle to my brother and enquired from him as to where he was going. He told me that he would be back soon and left with motorcycle. The number of Motorcycle was DL-9SN-4663. I returned home. My brother usually came late because of his profession. My brother did not come back home throughout night. We were under the impression that he is in the profession and used to come late and we went for sleep. In the morning I did not find my brother at home. I tried to contact my brother Deepak Parasar on his mobile phone but his mobile was switched off. The mobile phone number of my brother was 9818577457. I went to PS Dabri and lodged missing report of my brother at 10.45 am. on 18.03.2005. I gave my mobile phone number to the police of PS Dabri so that I may be intimated in case about any information of my brother. At about 11.30 - 12 noon I received telephone message on my mobile phone from PS Dabri that dead body of the description SC No.106/11 Page 30 of 59 31 given by me is lying at Safdarjung Hospital. I may go to the said Hospital to identify if the dead body of my brother or not. I reached Safdarjung Hospital at about 12.30 pm where I identified the dead body of my brother Deepak Parasar. There police persons and doctor told me to go to the PS Mahipalpur. I went to PS Mahipalpur and Police of PS Mahipalpur enquired from me if I suspect any person in the murder of my brother. I told the police that I suspect accused Mohd. Shakil, Devraj and Kamal Tyagi who were clients of my brother. All the three accused are present in the court correctly identified. I further told the Police that my brother was a lawyer. My brother used to wear ring of Pukhraj and was also having mobile phone make Nokia 6600, he also used to wear a locket with thread on his neck, he was wearing maxima wrist watch. My brother was also having key of motorcycle which I had given to him.
On 19.3.2005 postmortem was got conducted by the Police at Safdarjung Hospital on the body of my deceased brother Deepak Parasar. I signed the inquest paper Ex. PW1/A at mark A. I also made statement identifying the body of my deceased brother Ex. PW1/B signed by me at mark A and after postmortem I received the dead body of my brother Deepak Paaser vide receipt Ex. PW1/C signed by me at mark A. Thereafter I was called by the PS at PS Mahipalpur and I gave statement to the Police on
19.3.2005 regarding my suspicion on accused SC No.106/11 Page 31 of 59 32 persons. I suspected accused Mohd. Shakil, Devraj and Kamal Tyagi as my brother was demanding profession fee from them for the cases being conducted by him and the accused persons were not paying the fee to my brother and my brother had told me this fact. One week prior to the incident I had seen all the three accused persons nearby my house as they were speaking to my brother in loud pitch. They were abusing my brother. I could not hear the conversation. I had asked my brother as to why three accused persons were abusing him. He told me that these three accused persons were not paying his profession fee and threatening him.
On 16.4.05, I came to the court of Sh.
V.K. Khanna, ld. MM Patiala House where I identified the key of motorcycle of my brother amongst several keys. I also identified his wrist watch make Maxima and black strap out of several types of wrist watches. I signed the TIP proceedings.
On 20.05.2005, I handed over the photocopies of three files of the cases of accused persons being conducted by my brother which were taken into possession by the Police vide memo Ex. PW1/D signed by me at point A"
26. He also identified the wrist watch of the deceased (Ex. P-1), key of the motorcycle with keyring (Ex. P-2) and the clothes of the deceased when shown to him in court during his testimony.SC No.106/11 Page 32 of 59 33
It may be noted here that this witness had identified the wrist watch (Ex. P-1) in TI Proceedings also, the record of which is Ex. PW1/E. He identified the three accused namely Mohd. Shakeel, Dev Raj and Kamal Tyagi saying that he had seen them quarreling with the deceased. He also identified the case files as Ex. D1 to Ex. D3 which pertained to the cases of these accused in which deceased was defending them and which were seized by the police from him vide seizure memo Ex. PW1/D.
27. It was submitted by ld. Defence counsels that there are marked improvements in the statement of this witness recorded by the Police on 19.03.2005 and testimony before this court (wherein he suspects hand of the accused in the murder of his brother.) over his earlier statement recorded by Police on 18.03.2005 (Ex. PW1/DB) and missing report recorded as DD No. 37B (Ex. PW1/DA) wherein he does not suspect anybody in the killing of his brother. It is their submission that latter two statements are apparently motivated and concocted and hence not reliable. I do not find any force in these submissions. The DD No. 37B is only a missing report and by the time it was lodged, it was not known to the PW-1 that his brother has been killed. The DD has been recorded at 10.40 am whereas PW-1 received call from PS Dabri at 11.30 a m or 12 noon asking him to identify the dead body, as deposed by him in examination in chief. So, there arose no occasion for PW-1 to name any suspect in the missing report.
28. So far as the statement dated 18.3.2005 (Ex. PW1/DB) in this regard is concerned, it may be said that it nowhere mentions that PW-1 does not suspect anybody in the murder of his brother. PW-1 has deposed before the court that when on that day he was asked in PS Mahipalpur whether he suspected anybody, he SC No.106/11 Page 33 of 59 34 told police that he suspected accused Mohd. Shakil, Devraj and Kamal Tyagi, who were the clients of his brother. He has nt been cross examined on this point by any of the accused. It seems that for some reason best known to the police officials, they did not record this fact in statement of this witness dated 18.03.2005.
29. Moreover, no suggestion has been given to this witness in his cross examination that these three accused had not quarreled with the deceased in his presence one week prior to his death. In fact PW-1 has not been cross examined on this point also. He has merely been confronted with his statement dated 19.03.2005 u/s 161 Cr.P.C. in this regard where he had stated that the accused had come to quarrel with the deceased a few days before and not a week before.
30. It may also be stated here that this witness had merely raised suspicion against accused Mohd. Shakil, Dev Raj and Kamal Tyagi. He does not say that he saw the deceased with the accused before his death. It is also to be noted that the accused have not been apprehended and implicated in this case just on the mere suspicion of PW-1 but on the strength of statements of PW-4 and PW-9, who had seen the deceased with the accused in the evening of 17.03.2005, as per their statements u/s 161 Cr.P.C.
31. It was also argued by the ld. Counsels for the accused that no reason has been given by PW-1 for not handing over the photocopies of the case files Ex. D-1 to Ex. D-3 to the police before
20.05.2005. They sought to convey that these files pertaining to case FIR Nos. 343/02, 819/01 and 354/02 may have been fabricated later on to create false evidence in this case against the accused. This argument also is without any force. No doubt the photocopies of these case files were handed over by the PW-1 to SC No.106/11 Page 34 of 59 35 the police after a considerable delay, however, it would be preposterous to say that these have been fabricated. The original case files pertaining to case FIR No. 343/02 and case FIR No. 819/01 had been summoned by this court from the record room during trial and are tagged with the instant case file.
32. Accused Mohd. Shakil @ Bhola is one of the accused in case FIR No. 343/02 u/s 323/325/34 IPC PS Dabri. His bail bond has been submitted by the deceased Sh. Deepak Kumar Advocate. Record reveals that the deceased had been representing all the accused in that case.
33. Accused Mohd. Shakil @ Bhola and Devraj @ Deboo are the accused in case FIR No. 819/01 u/s 452/341/323/34 IPC PS Dabri also. Perusal of the file shows that attendance of the deceased as counsel for all the accused is marked on 17.07.2004. The deceased had also filed a miscellaneous application on behalf of accused Devraj in that case on 16.02.2006, which is on record.
34. Moreover the reply of PW-1 to a suggestion in his cross examination to the effect that "It is correct that my brother had got Mohd. Shakil acquitted in one case" implies that accused admits that the deceased was his lawyer in a criminal case.
35. Thus it has been amply proved that the deceased had been lawyer for the accused Mohd. Shakeel and Devraj in various criminal cases. As noticed hereinabove, it also stands proved that these two accused alongwith accused Kamal Tyagi had come to the deceased a few days before his murder, had a loud verbal altercation with him and when he demanded his fees, they abused him and threatened him that they would see him. This nullifies the argument that prosecution has failed to prove that the deceased SC No.106/11 Page 35 of 59 36 was the lawyer of the accused.
36. Suresh Solanki, the owner of STD Booth, near which deceased is stated to have parked his motorcycle, has been examined as PW-5. According to his testimony, the deceased whom he knew to be an advocate, came near his booth on 17.03.2005 at about 7.45 pm and told him loudly that he is parking his motorcycle near the booth and urged him (PW-5) to take care of it as he would be back after some time. He closed his shop at 8.30 pm but deceased had not returned by then. Next day when he reached the shop, he found the motorcycle still lying parked near it. At about 11 am PW-1 came there and enquired about the deceased. Thereafter PW-1 left and came back after sometime and took away the motorcycle. He stated that he came to know about the murder of deceased in the evening when Police arrived at his booth. In the cross examination, he deposed that his statement was recorded by the police on 19.03.2005 at about 6 pm. He was confronted with his statement u/s 161 Cr.P.C. wherein he had not mentioned that he informed PW-1 that the deceased had parked the motorcycle there a day before whereupon PW-1 went to his home, returned with the key of the motorcycle.
37. Despite the afoesaid slight improvement made by this witness over his previous statement, he appears to be natural and truthful. There is nothing in his cross examination to suggest that he had deposed falsely or that he is a planted witness. He corroborates and complements the testimony of PW-1. No suggestion has been given to him that the deceased had not parked his motorcycle near his shop. There is no cross examination of this witness on that aspect of his deposition. Hence this part of his testimony shall be deemed to have been admitted by the accused.
SC No.106/11 Page 36 of 59 3738. The ld. Counsels for the accused had submitted that the evidence of PW-5 is not reliable as PW-1 has nowhere stated that he went to the booth of PW-5 in the morning of 18.03.2005, found his motorcycle parked there and brought it home with the help of another key. It was argued that key of the motorcycle was available with the PW-1 and the discovery of the key at the instance of accused Kamal Tyagi persuant to his disclosure statement is highly improbable and impossible.
39. It is true that PW-1 has not stated in his testimony that he visited the booth of PW-1 on 18.03.2005 in the morning and found his motorcycle having been parked near the booth. That hardly affects the prosecution case inthis regard. I have noticed hereinabove that PW-5 has truthfully stated that the deceased parked his motorcycle near his booth on 17.03.2005 at about 7.45 pm. He does not say anything about the keys of the motorcycle. So, obviously key must have been taken by the deceased with him, which was later on recovered at the instance of accused Kamal Tyagi. The key, which PW-1 used, to take back the motorcycle from the booth must have been the duplicate key. It goes without saying that every vehicle comes with two keys so that in case of loss or theft of one key, other can be used.
40. As per the prosecution case, PW-4 and PW-9 saw the deceased with accused Mohd. Shakil, Devraj and Kamal Tyagi in a Wagon R Car bearing Registration No. DL-7CD-1466 in the late evening hours of 17.03.2005.
41. PW-4 turned hostile and did not support the prosecution case.
42. However, PW-9 has deposed in favour of the SC No.106/11 Page 37 of 59 38 prosecution. As per his testimony he knew the accused as well as the deceased. He saw the deceased in the company of accused Mohd. Shakil @ Bhola, Kamal Tyagi and Devraj in a Wagon R car bearing No. DL-7CD01466 on 17.03.2005 at about 7.45 pm/8 pm. Car was being driven by accused Shakil and accused took away the deceased alongwith them. Next day he came to know that deceased Deepak has been murdered. He identified all the three accused in the Court.
43. In the cross examination he reiterated that he knew the accused for the past about 10-12 years and he was on talking terms with them. His mobile phone number at that time was 9212041477. He stated that he was not sure but may be mobile No. 20049846 was of accused Shakil. He had talked to Mohd. Shakil on 17.03.2005 at 6.30 pm on his mobile as he had to take money from him for contract of the bus. He stated that accused used to take his bus on contract basis and he knew their mobile numbers. He was alone when he saw deceased with the accused. He was not able to hear the conversation between them. He might have seen them for a minute or two. He knew that deceased used to conduct cases of accused Shakil. His statement was recorded by the Police on 19.03.2005 in the evening. He denied all the suggestions put to him by the counsels for the accused.
44. It is seen that the accused have failed to discredit this witness in his cross examination. His testimony seems to be truthworthy and credit worthy. He knew the accused as well as the deceased very well before the incident. He was aware about their profession/occupation as well. He had business dealings with the accused. What is to be noted is that at the time his testimony was recorded, he was in judicial custody in connection with three criminal cases i.e. FIR No. 222/05 u/s 308/302/34 IPC PS R.K. SC No.106/11 Page 38 of 59 39 Puram, FIR No. 146/2002 u/s 307/387 and 427 IPC PS Dwarka and thirdly u/s 420 IPC PS Uttam Nagar. It was for this reason that ld. Defence counsels submitted that the evidence of this witness is not reliable as he himself is a criminal and was produced from JC. However, ld. Defence counsels have failed to point out anything from the testimony of this witness which may show that he is a tutored witness and hence not reliable. Merely because a witness has been brought from judicial custody to depose before the court and he is facing trial in criminal case, does not mean that his testimony is to be rejected outrightly. The deposition of such a witness, in my opinion, carries as much weight as that of any other witness if it stands the test of cross examination. It may be said that testimony of such witness should be scrutinized cautiously and painstakingly to ascertain whether he had a chance to see the occurrence, whether he knew the accused and the victim beforehand; whether he had any motive to depose falsely against the accused etc.
45. In the instant case, there is nothing on record to show that PW-9 had any kind of enmity with the accused and that he was interested in their false conviction in this case. Moreover the deposition of PW-9 before the court is in sync with his statement u/s 161 Cr.P.C. recorded on 19.03.2005 when he was not in custody. Nothing has been brought to my notice from which it may be inferred that PW-9 has deposed under pressure or motivation from Police officers or anybody else.
46. The call detail records of the mobile phone No. 92120414777 of this witness have been proved by the defence witness DW-1 as Ex. DW1/B. The accused shall not be heard to dispute these call records, which have been proved by their own witness. These show that PW-9 made a call to the mobile phone SC No.106/11 Page 39 of 59 40 20049846 of accused Shakil on 17.03.2005 at 7.42 pm and the call lasted for 52 seconds. These also show that he had made certain calls on the mobile phone No. 9871226307 of accused Kamal Tyagi also. This corroborates the version of PW-9 that he knew the phone numbers of the accused, he used to talk to them and he had called to the accused Shakil in the evening of 17.03.2005.
47. Hence I have no hesitation in accepting the testimony of PW-9, being true. It stands proved that the deceased was taken by accused Mohd. Shakil, Devraj and Kamal Tyagi in Wagon R car No. DL7CD-1466 which was driven by accused Mohd. Shakil.
48. As per the testimony of PW-12, data entry operator from Transport Authority, Anand Vihar, Wagon R Car bearing registration No. DL7CD-1466 is registered in the name of accused Kamal Tyagi and bears Chasis No. HA3EED81500191768 and Engine No. F-10DN3080312. He has proved the photocopy of the RC of this car as Ex. PW12/A. He has not been cross examined on behalf of the accused.
49. As per the deposition of PW-22 and the I.O.(PW-48) accused Sunil Tyagi, was arrested from his house at Sahnai Gate, Dhopna Mohalla, Ghaziabad on 21.03.2005 at the instance of other three accused who had already been arrested. His arrest memo is Ex. PW39/D. According to PW-48, accused Sunil was lying on a cot and his face as well as front portion of body near chest was burnt. He further deposed that accused Sunil made a disclosure statement Ex. PW22/A stating that he had burnt the car used in commission of offence in this case, near Mehamudabad, Distt. Morad Nagar, UP. The custody of accused Sunil was then handed over to PW-22 and PW-29 for the recovery of the car.
SC No.106/11 Page 40 of 59 4150. PW-29 has stated that accused Sunil lead them to a spot in village Mehmudabad, PS Morad Nagar, Distt. Ghaziabad which was a 'kacha rasta' and got recovered a Wagon R Car of white colour which was in burnt condition. All the four tyres of the car were burnt, its rear seat was completely burnt. Only iron structure and the front seats were visible in the car. PW-22 had checked the chasis number of the car. Crime team was called to the spot from Delhi. The car was loaded on a tractor trolley which was passing by that place. Meanwhile crime team reached the spot and PW-15 (photographer in the crime team) took photographs of the car from all angles. The photographs are Ex. PW15/A to PW15/A14 and their negatives are Ex. PW15/A15 to Ex. PW15/A28. . The car was taken into possession vide seizure memo Ex. PW6/A.
51. Both PW-22 and PW-29 have also deposed that broken pieces of glass, burnt pieces of tyre and ash of the car and a burnt shirt were seized from the spot and sealed in different pullindas. They identified these articles during their deposition in court. The broken pieces of glass are Ex. P-4, the ash is Ex. P-3, the piece of tyre is Ex. P-5 and the burnt blue colour shirt is Ex. P-6.
52. PW-29 has stated in his cross examination that the tractor trolley driver's name was Tejbir. He further deposed that five to ten villagers helped them in lifting the car into the trolley and Smt. Sunita, the pradhan of the village had reached there on her own. He also deposed that chasis number of the car was checked by PW-22 after lifting the bonnet by hand.
53. Smt. Sunita appearing as PW-6 turned hostile. She denied that she saw accused Sunil with the Police in her village or that the burnt car was recovered at the instance of accused Sunil, SC No.106/11 Page 41 of 59 42 in her presence. However, she stated that on 21.3.2005 when she was present in her home, Delhi police came and asked her to arrange a vehicle for removing a burnt car. She further stated that she did not come out of her house to see the burnt car but asked one Tejvir to take the burnt car.
54. On the other hand, Tejvir appearing as PW-7 has stated that Pradhan of the village Smt. Sunita (PW-6) was present with the Police when his tractor trolley was hired by the Police on 21.3.2005 to take a burnt car to Delhi. He identified the burnt car Ex. P-X, which he had brought to Delhi. He has not been cross examined on behalf of any of the accused. Therefore, it stands proved that Sunita (PW-6) was present with the Police when the tractor trolley of this witness was hired by the Police. It is, therefore, evident that PW-6 has made false statement before this court to the effect that she had not come out of her house. It stands established, thus, that the burnt car Ex. P-X was recovered from the fields in village Mehmudabad, District Morad Nagar, UP at the instance of accused Sunil and it was the same Wagon R car in which the deceased was last seen by PW-9 alongwith the accused.
55. It may also be noted here that accused Sunil, after his arrest was medically examined by PW-40 Senior Resident in Safdarjung Hospital. He has proved MLC of accused Sunil as PW-40/A. As per the aforesaid MLC, the accused Sunil had deep thermal burn injuries on the front of face, neck, upper part of chest, hand and forearm. It was argued by the ld. Counsel for the accused Sunil that neither the testimony of PWs 22, 29,6 & 7 nor the aforesaid MLC do suggest that this accused had intentionally burnt the Wagon-R car of accused Kamal Tyagi in order to destroy the evidence of crime. However, the contradictory and false statements given by accused Kamal Tyagi and accused Sunil in SC No.106/11 Page 42 of 59 43 their examination u/s 313 Cr.P.C., establishes this fact. Accused Sunil has denied that accused Kamal Tyagi had handed over his Wagon R Car bearing registration No. DL-7CD-1466 to him to burn the same and has also denied that he had got recovered the said car in burnt condition from Kacha Rasta in village Mehmudabad. He, however, admits that when police came to his house, he was found lying on a cot with burn injuries on the face and front portion of the body. He had nowhere explained in his examination u/s 313 Cr.P.C. as to how did he suffer those burn injuries. Accused Kamal Tyagi in his statement u/s 313 Cr.P.C., has stated that accused Sunil had received burn injuries due to fire in the car due to short circuit. It implies that accused Kamal Tyagi had handed over the said Wagon-R car to accused Sunil. However, what is more intriguing, that accused Kamal Tyagi has nowhere stated why and for what purpose had he given the said Wagon-R car to accused Sunil and at which place did it catch fire due to short circuit. It has also not been explained, as to what action was taken either by the accused Kamal Tyagi or by Sunil after the car got burnt on account of alleged short circuit. As noticed herein above, accused Sunil is totally silent about how and in what circumstances did the Wagon R car caught fire and for what purpose he had gone to village Mehmudabad.
56. I am conscious of the right of the accused to remain silent but that is not an absolute right. The accused must open his mouth and explain the incriminating circumstances coming out during the testimony of various witnesses of the prosecution against him. In this case, it was obligatory upon accused Kamal Tyagi and Sunil to explain satisfactorily, the purpose for which accused Kamal Tyuagi had handed over the aforesaid Wagon-R car to accused Sunil, the circumstances, in which, the said car caught fire and for what purpose was the car driven by accused Sunil to SC No.106/11 Page 43 of 59 44 village Mehmudabad. That having not been done, it leads to only one inference that the deposition of prosecution witnesses in this regard is true and correct and has to be acted upon.
57. Talking of the examination of the accused u/s 313 Cr.P.C. it may also be noted here that all the accused have stated falsely that the deceased was not their lawyer, whereas it has been proved to the satisfaction of this court as noticed herein above that the deceased was representing accused Mohd. Shakil and accused Devraj in various criminal cases.
58. In his disclosure statement. Ex. PW30/A1 accused Kamal Tyagi has disclosed that during the commission of offence, he had suffered injuries on his right hand by the knife with which the deceased was being stabbed by his co accused and he had obtained treatment for that injury from Sri Ram hospital, Dabri. After his arrest, as per the testimony of PW-48, he was sent to Safdarjung hospital for his medical examination where he was examined by PW-36 who has proved the MLC of accused Kamal Tyagi as PW-36/A. He testified that during physical examination of accused Kamal Tyagi, he noted one healed incised wound with clean cut margins having both angles acute between right index finger and right middle finger size 3.5 cms x 0.3 cms tissue deep extending towards palm. He further opined that the injuries are simple in nature and have been caused by a sharp edged weapon about 4 ½ to 5 days back.
59. I do not notice any inconsistent statement in his cross examination. It is apparent that accused Kamal Tyagi was examined by this witness on 22.3.2005 and as per his testimony, he may have got the said injuries on the hand on about 17th of 18th March, 2005.
SC No.106/11 Page 44 of 59 4560. As per the testimony of PW-48 he had got verified from Sri Ram Hospital Dabri on 26.3.2005 about the treatment got by accused Kamal Tyagi for his aforesaid injuries in that hospital. He had obtained the attested copy of OPD register of the hospital which is proved as Ex. PW10/A and which finds mention of accused Kamal Tyagi at sl. No. 26 as under:-
"Sl. No. 26, Name: Kamal Tyagi aged 24 years/M Address Mahipal Pur.
Disease Dressing Cash Rs. 200/-."
61. He had seized this document vide seizure memo Ex. PW48/D. As per the further testimony of PW-48, he had taken accused Kamal Tyagi to Sri Ram Hospital where he was identified by Dr. Samarjeet Singh (PW-10) saying that the accused had obtained treatment from the said hospital on 17.3.2005.
62. Ld. Counsel for the accused Kamal Tyagi submitted that the document Ex. PW10/A is only a photocopy of the OPD register and the same cannot be relied upon as the original of the same has never been produced before the Court. In this regard, reference may be had to the testimony of Dr. Samarjeet himself, who appeared as PW-10. He has proved this photocopy of the OPD register as Ex. PW10/A. It is noted in his deposition that the photocopy has been exhibited, as the same had not been objected to by the ld. Counsel for the accused Kamal Tyagi. Therefore, it does not lie in the mouth of the ld. Counsel to say now that this document has not been proved as per law. This witness also stated that accused Kamal Tyagi had come to him on 17.03.2005 with a cut injury on his hand and he had applied dressing on the wound.
SC No.106/11 Page 45 of 59 46The ld. Defence Counsel then, pointed out to the cross examination of PW-10, where he has stated that the patient informed him that he received injury while he was driving the vehicle in night time. This statement of the accused Kamal Tyagi given to PW-10 cannot be accepted as a gospel truth. He has not stated so when this circumstance was put to him in his examination u/s 313 Cr.P.C. He has stated in his examination u/s 313 Cr.P.C. that the said OPD register Ex. PW10/A has been got manipulated by the IO. No such suggestion was given to the PW-10 in his cross examination. Thus, this accused Kamal Tyagi on one hand admits the correctness of the document Ex. PW10/A, when no question about its genuineness or otherwise is put to PW-10 in his cross examination, but at the same time, states in his statement u/s 313 Cr.P.C. that the same has been got manipulated by the IO.
63. These two contradictory versions coming from the mouth of the accused only go on to establish that he had infact received injuries during the stabbing of the deceased, which he got treated from PW-10.
64. The disclosure statements of accused Kamal Tyagi, Mohd. Shakil and Dev Raj have been proved as Ex. PW30/A-1, PW30/A-2 and PW30/A-3 respectively. Their pointing out memos, in respect of the place where they had thrown the dead body of the deceased after killing him, have been proved as Ex. PW30/A, PW30/B and PW30/C respectively.
65. PW-30 has further stated that accused Kamal Tyagi led the police officials to Shahbad Mohd. Pur Village near Delhi Rewari Railway Line near the bushes, from where he got recovered one key alongwith the key ring of the motorcycle of the deceased. He SC No.106/11 Page 46 of 59 47 proved the pointing out-cum-seizure memo in respect of the same as Ex. PW30/D. In reply to a court question he stated that he did not remember the description of the key ring. He further stated that accused Dev Raj led the police party to same village Shahbad Mohd. Pur near the bushes in between the village and the Indian Oil Corporation Road, where from he got recovered the wrist watch belonging to the deceased. In the reply to a court question he stated that it had leather stripe, round dial and was a quartz watch, however, he did not remember its make. He proved its seizure memo as Ex. PW30/E. He further stated that thereafter accused Mohd. Shakil led them to 'Y' Point near village Shahbad Mohd. Pur, from where he got recovered one raxine purse from the bushes, which purse belonged to the deceased. The said purse was containing one I-card of the deceased, some visiting cards and one other card on which some dates were written besides some cash. He proved its seizure memo as Ex. PW30/F. In reply to a court question, he stated that the purse was of dark gray colour but did not remember whether anything was written on the same. He also deposed that the accused Mohd. Shakil led the police party to Uttam Nagar, main Najafgarh Road near Radiant Hospital, from where he got recovered one mobile phone of make Nokia make 6600 from a vacant plot and the same was seized vide memo Ex. PW30/G. At this stage it was observed by the court that there is no such seizure memo of the Nokia Mobile Phone 6600 on record. This witness identified the key alongwith the key ring, a quartz watch and the purse when shown to him during his testimony. However, it may be noted that quartz watch shown to him was of rectangular shape and its strap was not of leather, to which the witness stated that he had forgotten the shape of the watch, recovered at the instance of accused.
66. In the cross examination, he denied all the suggestions SC No.106/11 Page 47 of 59 48 put to him by the ld. Counsel for the accused. He further stated that as per his knowledge, IO did not make any effort to join any public person in the investigations before the police reached the Pulia. He, however, immediately added that some passerbys were asked by the SHO to join the police party but none agreed to do so. At another place, in his cross examination, he stated that the SHO had tried to stop many passerbys to join the investigations at the time of recovery of the wrist watch of the deceased, but none of them stopped to join. Yet at another place, he further deposed that in his presence SHO had personally asked some passerbys to join the investigations, when they reached the 'Y' point, but they refused.
67. Referring to the aforesaid recoveries made at the instance of accused PW-43, Inspector Satvir Janola, who was a member of the Police Team, has stated that the accused Kamal Tyagi led them to some distance from the spot of recovery of dead body and from the bushes took out the key of the motorcycle of Hero Honda of the deceased. The said key, which was in the key ring in the shape of a glove, was seized vide seizure memo Ex. PW30/D after sealing the same in a cloth pullinda with the seal of RPS.
68. He further stated that accused Dev Raj @ Deboo led them to the opposite side of the place of recovery of key and took out the wrist watch of the deceased from bushes, which was a quartz clock with white dial and having black strap of cloth. The said watch was also sealed in a pullinda sealed with the seal of RPS and seized vide seizure memo Ex. PW30/E. He further stated that accused Mohd. Shakil led them to the bushes at Shabad Mohd. Pur 'Y' point and got recovered a purse, the colour of which was perhaps black and on which words "Parko" was written. The SC No.106/11 Page 48 of 59 49 purse was searched and found containing small diary, having telephone numbers and on the cover of the diary, figure 13 was written. There were few visiting cards also in the name of the deceased found in the purse, besides his Identity card issued by the Bar Council of Delhi. The said purse was seized vide seizure memo Ex. PW30/F after putting up the same into a pullinda. He further deposed that accused Mohd. Shakil, then, led them to Najafgarh Road near Radiant Hotel and disclosed that they had thrown the mobile phone of the deceased opposite Metro Pillar No. 709 in the bushes in the open area. He pointed out the said place vide pointing out memo Ex. PW30/G. According to this witness, the mobile phone was searched in the area but it was not traceable. He identified all the aforesaid articles when shown to him during his testimony.
69. In the cross examination, he denied the suggestion that the key of the motorcycle was planted upon the accused Kamal Tyagi to falsely implicate him in the present case; that the said key was not of the motorcycle of the deceased or that the signatures of the accused were later on obtained on the memos forcibly in the police station. In the cross examination conducted on behalf of accused Mohd. Shakil, he illustrated the proceedings regarding recovery of purse at the instance of accused Mohd. Shakil as under:-
"The height of the bushes from where the purse was got recovered by accused Mohd. Shakil was between 1 ½ to 3 ft. Vol. There were also several trees at the spot..........................
We had gone on foot to the spot of recovery of purse alongwith accused Mohd. Shakil and this place was on the road side. The SC No.106/11 Page 49 of 59 50 distance between road and the place of recovery of the purse was about 20 to 30 ft. The remaining two accused Kamal Tyagi and Devraj were in the custody of SI Rang Lal and Driver Constable Darshan in the police gypsy. The purse was lying concealed under the buses under loose earth/soil. The accused Mohd. Shakil himself had removed the layer of earth/soil and had taken out the purse........................................
There were few passerbys at the said place but they did not stop."
70. Referring to the pointing out of the spot, where the accused had thrown the mobile phone of the deceased, by accused Mohd. Shakil, the witness stated in the cross examination as under:-
"From the spot of recovery of purse we all had gone to the spot near Radiant Hotel in the same gypsy in which we had arrived with the accused persons. From the spot of recovery of purse we had first gone to the Gypsy and from there, to the spot near Radiant Hotel. The distance between the said spot was about 6 kms and we had taken the route through Dwarka. We had reached the said spot around 4 pm. I cannot tell the distance between the spot, pointed out by accused Mohd. Shakil, and the Radiant Hotel. The approximate area of 15 to 20 ft. was searched at the instance of accused. The said area was kacha SC No.106/11 Page 50 of 59 51 portion and 7/8 ft. away from from the road. We stayed at the said spot for about 15 to 20 minutes. We had left the spot at about 5 pm in the same gypsy. Therefrom we went to the PS Mahipal Pur. "
71. There is nothing else worth mentioning in the remaining cross examination of this witness nor was anything pointed out to me by the ld. Counsels for the accused in his remaining cross examination.
72. The IO, appearing as PW-48 has corroborated the version of aforesaid PW-30 and PW-43 with regards to the recoveries of the articles belonging to the deceased at the instance of the accused. Nothing inconsistent or contradictory has been pointed out by any of the ld. Counsels appearing for the accused. I have myself also scrutinized the lengthy deposition of this witness but could not detect any statement inconsistent to the case of the prosecution.
73. I do not see anything on record to dis-believe the testimony of aforesaid three police witnesses regarding the recovery of the articles of the deceased at their instance. It has come on record that some passerbys were asked to stand witness to the recovery but all of them refused. It is seen that now a days, people are always reluctant to join the police party or to get involved in the investigations of a criminal case for various reasons. Therefore, the recovery of incriminating articles at the instance of accused, in the absence of a public witness cannot be faulted with, when no public witness shows his readiness and willingness to join the police party. In my opinion it stands proved that the key of the motorcycle alongwith its key ring belonging to SC No.106/11 Page 51 of 59 52 the deceased was recovered at the instance of accused Kamal Tyagi. The wrist watch of the accused was recovered at the instance of accused Dev Raj and the wallet of the deceased was recovered at the instance of accused Mohd. Shakil. Hence the relevant corresponding part of their disclosure statements becomes admissible in evidence and can be read against the accused.
74. It was argued by the ld. Counsels for the accused that the prosecution case regarding the aforesaid recoveries cannot be believed in view of the statement of PW-30 to the effect that accused Mohd. Shakil got recovered one mobile phone of make Nokia 6600 from a vacant plot near a road, which belonged to deceased and which was seized vide a seizure memo Ex. PW30/G, whereas no such seizure memo is on record and neither PW-43 or PW-48 have deposed regarding seizure of such mobile phone. The argument has no force as PW-43 has explained in his testimony that Ex. PW30/G is only a pointing out memo vide which the accused Mohd. Shakil pointed out the place near Radiant Hotel, where they had thrown the mobile phone of the deceased, which could not be recovered despite intense search. I have scrutinized the document Ex. PW30/G and the same is only a pointing out memo and not a seizure memo. Thus the statement of PW-30 with respect to this document seems to be on account of some mis- conception and hence does not affect the case of the prosecution or the recovery made at the instance of the accused.
75. The call details of mobile phone No. 9871226307 used by accused Kamal Tyagi in March, 2005 have been proved by PW-24 as Ex. PW24/A. I say, proved for the reasons that there is no cross examination of this witness on behalf of the accused disputing the genuineness of the call records or the use of said SC No.106/11 Page 52 of 59 53 mobile phone by accused Kamal Tyagi during the relevant period. These call records show that accused kamal Tyagi was in regular touch with accused Mohd. Shakil and Dev Raj in the evening of 17.3.2005 and his movement was from Sadh Nagar -> Palam Colony -> Dwarka Sector-7 -> Airport Authority -> IGI Airport Village Shahbad Mohd. Pur -> Sadh Nagar -> Palam -> Kakrola -> Uttam Nagar. His movement in the morning of 18.3.2005 starting from 7.21 am is from Palam -> Vasundhara Ghaziabad -> Ghaziabad -> Ashoka Hotel -> Maurya Hotel.
76. This witness PW-24 has also proved the call detail records of deceased Deepak Parashar as Ex. PW24/B. It may be again noted here that no suggestion has been given to this witness that these call details are not genuine or that the aforesaid telephone was not used by the deceased at the relevant time. The call details show that deceased had received a call from accused Mohd. Shakil from his MTNL Mobile Phone No. 20049846 at 7.40 pm. This strengthens the case of the prosecution to the effect that accused Mohd. Shakil had called the deceased asking him to come and collect his fee. The call details further show the movement of the deceased from Nasirpur -> Palam Colony -> Shahbad Mohd. Pur Village. The last call received on his phone falls at 8.14 pm in Palam Colony and thereafter only Sms have been received on this phone at 8.33 pm and 8.35 pm on 17.03.2005 and at 9.32 am, 8.30 pm and 8.35 pm on 18.03.2005.
77. True it is, as argued by ld. Defence counsels, that the weapons of offence and the mobile phone of the deceased has not been recovered. That, however, does not affect the prosecution case at all. An accused may or may not get the weapon of offence recovered. It is his sweet wish. Now a days no third degree methods can be used by the Police to compel the accused to effect SC No.106/11 Page 53 of 59 54 recovery of any incriminating article. In the instant case no effort was made by the Police to recover the weapons of offence as the accused had disclosed that they have thrown them in the Hindan River in Ghaziabad. So far is the mobile phone of deceased is concerned, accused Mohd. Shakil pointed out the place where they had thrown the same but it was not found there. It transpires either accused had pointed out to a wrong place in order to avoid recovery of mobile phone or the mobile phone was picked by somebody before police could reach that spot.
78. From the aforesaid discussion, it is apparent that following circumstances have been proved on record beyond any doubt:-
CIRCUMSTANCES PROVED
1. Deceased, a lawyer by profession, was engaged by accused Mohd. Shakil and Dev Raj to defend them in various criminal cases;
2. a week before the murder of deceased, the three accused Kamal Tyagi, Mohd. Shakil and Dev Raj had come to the deceased, quarreled with him and threatened him when he demanded his professional fees;
3. The accused Mohd. Shakil called the deceased on his mobile phone No. 9818577457 from his mobile phone No. 20049846 in the evening of 17.03.2005;
4. the deceased left his house at about 7 pm after the receipt of call on his motorcycle and parked the same near the STD Booth of PW-5 requesting him to take care of it, till he returned;
5. PW-9 saw the accused Kamal Tyagi, Mohd. Shakil and Dev Raj taking the deceased in Wagon R Car No. SC No.106/11 Page 54 of 59 55 DL7CD-1466 of accused Kamal Tyagi, which was being driven by the accused Mohd. Shakil, on 17.03.2005 at about 7.45 pm or 8 pm;
6. The dead body of the deceased was found at a place ahead of village Shahbad Mohd. Pur before the underpass in the morning of 18.03.2005 at about 8 am;
7. As per the post mortem report Ex. PW17/A and testimony of PW-17, the death of the deceased must have been caused on 17.3.2005 at about 10 pm by receiving gunshot injuries consequence to firing at contact range, with a fire arm;
8. Accused Kamal Tyagi, Mohd. Shakil and Dev Raj were arrested on 21.03.2005 and at their instance accused Sunil was arrested on the same day;
9. Accused Kamal Tyagi had stab injury on his right hand, which he has failed to explain satisfactorily, and thus shall be taken to have received while he was pressing the neck of the deceased, as revealed by him in his disclosure statement;
10.Statement of PW-10 that Kamal Tyagi had come to his clinic on 17.3.2005 with a cut injury on hand which he had dressed up and also took Rs. 200 as fee from him, vide Ex. PW10/A;
11.Accused Sunil was found having burn injuries on his face and front portion of his body, which he had failed to explain;
12.The burnt Wagon R Car of accused Kamal Tyagi was recovered from a vacant field in village Mehmudabad, PS Morad Nagar, Distt. Ghaziabad on 21.3.2005 at the instance of accused Sunil in presence fo PW-6 and PW-7;SC No.106/11 Page 55 of 59 56
13. The key of the motorcycle of the deceased alongwith the key ring was recovered at the instance of accused Kamal Tyagi;
14.The wallet of the deceased containing his I-card, visiting cards etc. was recovered at the instance of accused Mohd. Shakil;
15.The wrist watch of the deceased was recovered at the instance of accused Dev Raj;
16.Call detail records of accused Kamal Tyagi, Mohd. Shakil and Dev Raj showing their movement on 17.03.2005 in the evening from Sadh Nagar Palam to Village Shahbad Mohd. Pur (where the dead body of deceased was found) and back.
79. All the aforesaid proved circumstances, if taken together point out to only one inference i.e. the deceased has been killed by these accused Kamal Tyagi, Mohd. Shakil and Dev Raj and to no other inference. The motive for the accused to kill the deceased also stands sufficiently proved, as noticed herein above. It may be further be noted that missing links in the chain of the circumstances proved by the prosecution, as reproduced herein above, if any, are supplied by the false and unsatisfactory answers given by the accused in their statements u/s 313 Cr.P.C. which have already been discussed in earlier part of this judgment.
80. The ld. Counsels for the accused had argued that it would be traversity of justice to hold them guilty on the basis of last seen evidence of PW-9 as the dead body of the deceased was found after a long time gap of about 12 hours from the time when PW-9 had seen the deceased alive in the company of the accused. It was submitted that last seen evidence comes into play when the SC No.106/11 Page 56 of 59 57 time gap between the point of time when the accused and deceased were seen alive last and when the deceased is found dead, is so small that possibility of any person other than the accused being the author of the crime becomes impossible. They contended that in the present case, such time gap being so long as twelve hours, the possibility of any other person than the accused having perpetrated the crime cannot be ruled out.
81. I do not find any force int he aforesaid submissions of the ld. Defence counsels. Once it has been proved satisfactorily that the deceased was seen alive last in the company of the accused in the evening of 17.03.2005, it was for them to explain what happened to him later on. The legal proposition put forward by the ld. Counsels would apply only when the accused would have stated that deceased left them soon thereafter and they don't know where did he go after parting with them. The accused have given patently false replies in this regard in their statements u/s 313 Cr.P.C. by denying that the deceased was with them in the evening of 17.3.2005. Besides that, the other circumstances proved on record, as detailed herein above, also establish the guilt of the accused beyond any doubt.
82. It is to be seen now whether the accused had conspired together to kill the deceased and whether or not all the accused were part of the conspiracy.
83. Conspiracy is always hatched in a clandestine manner behind the closed doors. It is very impossible to get a direct witness to the charge of conspiracy. It can only be inferred from the conduct of the accused before and after the commission of crime, their relations inter se and with the victim/deceased, circumstances in which the crime is committed and the SC No.106/11 Page 57 of 59 58 movements of the accused etc. A criminal conspiracy is a partnership in crime and in each conspiracy, there is mutual agreement for the prosecution of the common object. When two or more persons agree to commit a crime,then regardless of making or considering any plans for its commission and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and everyone, who joins in the agreement. Offence of criminal conspiracy is exception to general law that intention alone does not constitute a crime. The question to be considered in the given case is did all the accused had the intention and did they agree that the crime be committed.
84. In the instant case, the evidence led by the prosecution, as discussed herein above makes it limpid that accused Mohd. Shakil, Dev Raj and Kamal Tyagi had entered into a criminal conspiracy to kill the deceased Deepak Parashar, Advocate and they achieved the object of the criminal conspiracy by killing him. However, I do not find any evidence to show that accused Sunil was also a part of such criminal conspiracy. It is apparent that accused Sunil has been roped in after the murder of the deceased. It is at this juncture, all the four accused agreed, thereby entering into a second conspiracy, that the Wagon-R Car bearing No. DL7CD -1466 shall be taken by accused Sunil to a secluded place in District Ghaziabad, where he would burn the same in order to destroy the evidence of crime. Accused Sunil executed the object of the conspiracy by burning the aforesaid car in vacant fields in village Mehmudabad, PS Morad Nagar, Distt. Ghaziabad on 21.3.2005.
85. Resultantly, accused Mohd. Shakil, Dev Raj @ Devoo and Kamal Tyagi are convicted for having committed offences SC No.106/11 Page 58 of 59 59 punishable u/s 120 B IPC and u/s 302/120B IPC and 201 IPC. However, accused Sunil is convicted for having committed the offence punishable u/s 201/120B IPC.
File be consigned to Record Room.
Announced in open (VIRENDER BHAT) Court on 15.11.2011. A.S.J. :Dwarka Courts New Delhi.
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