Delhi District Court
State vs Accused on 22 November, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0399792007 SC NO. 183/13 Date of Institution : 11.02.2009 FIR No. 69/07 Date of Argument : 26.10.2013 PS M.S. Park Date of Order : 22.11.2013 U/S 365/364/328/302/201/120B/376/392/411 IPC State Versus Accused 1. Anil Kumar S/o Sh. Mahi Pal R/o A-3/99, Nand Nagri, Delhi. 2. Anju @ Sonia @ Baby S/o Anil Kumar R/o A-3/99, Nand Nagri, Delhi. 3. Prem Pal S/o Sh. Nain Sukh R/o C-2/513, Nand Nagri, Delhi. JUDGMENT
The facts in brief of the prosecution case are that on 11.02.2007 ___________________x___________, S/o M.P. Jain, R/o ___________y______, Delhi, here in after SC No.183/13 State vs. Anil Kumar & Ors. Page 1 of 75 referred to as the complainant, lodged a report at PS MS Park alleging that he was residing with his wife___z____ aged about 32 years, herein after referred to as the prosecutrix, daughter ___z-1___ aged about 11 years and son__z-2___ aged about 7 years. His wife, the prosecutrix was running a beauty parlour in the name of Akash Beauty Parlour since June, 2006 at C-307, Gali No. 9, Ashok Nagar in tenanted premises. A girl Anju Sharma, herein after referred to as the accused No. 2, aged about 18/20 years height 4'/6'' medium built having space in her front teeth with dark complexion (sawla) came to work in the parlour w.e.f. 03.02.2007. His wife, the prosecutrix and accused no. 2, left the beauty parlour at 5.00 PM on 07.02.2007 and they did not return. On 08.02.2007, he lodged missing report vide DD No. 52 B. His wife was wearing brown colour salwar suit, white shawl, grey colour sweater, four rings and one pair of long tops made of gold, two chains and four bangles in her hand and black colour chappal. She was also having a phone No. 9811484599. That phone was found switched off. His wife was 5'/3"in height with medium built with long face and whitish colour. (Gahua) She was having black mark (kala til) on her left shoulder and mark of operation on her right foot. Police recorded FIR No. 69/07, under Sections 365/364/328/ 302/201/376/392/411/120B IPC. Missing Person Form was SC No.183/13 State vs. Anil Kumar & Ors. Page 2 of 75 filled in and all the SSPs and DCPs of India were informed and Hue and Cry notice was issued. The call details of the connected numbers to mobile of the prosecutrix were obtained from the service provider. On analyzing the call details of mobile No. 9999453703, it was found belonging to Salauddin, son of Husnain, R/o C-1/261, Nand Nagri. He was interrogated and he disclosed that he had given his mobile to a plumber Anil, R/o A-3/99 Nand Nagri, herein after referred to as the accused No. 1. Accused no. 1 and accused no. 2 were found missing from their house since 07.02.2007. On 22.07.2007, accused no. 1 and accused no. 2 were arrested. During interrogation, the accused persons disclosed that the prosecutrix was a rich woman who used to put on gold jewellery all the time. They made a plan to loot her jewellery. According to their plan, they had to administer intoxicating material but in presence of her daughter all the time, it was not possible. The accused no. 2 took the prosecutrix out of her house on the pretext of applying Mehndi. She was given intoxicants in Alloo Ki Tikki and she was taken to Maujpur but she started vomiting. She was taken to GTB hospital on the pretext to provide her treatment. The accused no. 2 made a telephone call to her husband, accused No. 1 and asked him to come at GTB hospital. Her husband, accused no. 1 with his friend Prem Pal, herein after referred to as the accused no. 3 arrived SC No.183/13 State vs. Anil Kumar & Ors. Page 3 of 75 there. Accused No. 3 hired a TSR and they took the prosecutrix in the area of Loni from the side of Bhopura. After making payment, the TSR driver was sent back and the prosecutrix was taken to lonely street. They looted her and raped her and in order to conceal their identity killed her by hitting with a brick. All the accused persons absconded from that place. Accused no. 3 was also arrested at the instance of accused no. 1 and accused no. 2 from his house. He also made a disclosure statement. All the accused persons led the police party to a place, i.e. closed street beyond street No. 13, Krishan Vihar, Phase II, LPG Godown, UP. The statements of witnesses were recorded. It was revealed on further investigation that on that place on 08.02.2007 in the morning dead body of a woman whose face was found crushed was recovered and panchnama and other proceedings were conducted by the police of Loni (UP). The description of the prosecutrix was found matched with the description recorded by UP Police. UP Police also got postmortem of the deceased conducted and preserved her clothes by depositing the same in the Malkhana. The clothes and other articles were got opened. On 23/02/2007, the complainant identified the clothes and articles of the prosecutrix. The accused were produced in the Court and their police remand was obtained. The looted case property was recovered. TSR No. DL1 RH 1033 SC No.183/13 State vs. Anil Kumar & Ors. Page 4 of 75 which was used for abducting and taking her to Krishna Vihar, Phase II was also seized. The TSR Driver Dharmender son of Somdutt, r/o B-39, Gali no. 11, Jagat Puri Extension, Dilshad Garden was interrogated and his statement was got recorded before Ld. Metropolitan Magistrate. In the Judicial TIP conducted by Sh. G.N. Pandey, Ld. Metropolitan Magistrate, complainant correctly identified the case property of the prosecutrix. Viscera of the deceased was got preserved. It was suspected that she died due to poisoning. After visiting the place of incident, scaled site plan with the help of draftsman was prepared. After completion of investigation charge sheet against all the three accused for their trial for the offences punishable u/s 365/364/328/302/201/376/392/411/120 B IPC was filed.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to Sh. A.K. Chawla, Ld. ASJ, Karkardooma Courts, Delhi.
3. The court vide its order dated 05.10.2007 opined that prima facie case for framing of charge against all the accused for the offences punishable u/s 120B/364/365/392/302/201 IPC; additional charge against SC No.183/13 State vs. Anil Kumar & Ors. Page 5 of 75 accused Anju @ Sonia @ Baby for the offence punishable u/s 328 IPC; and additional charge against accused Prem Pal for the offence punishable u/s 376 IPC was made out. Therefore, separate charges against all the accused persons for their trial for the said offences were framed and read over to them in vernacular language. They pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined HC Manoj Kumar as PW1; __x__ as PW2; Sh. Salauddin as PW3; Sh. Bhoop Ram as PW4; Sh. Roop Ram as PW5; Sh. G.N. Pandey as PW6; Dr. M. Das, CMO as PW7; Sh. Ashok Kumar Gupta as PW8; Sh. Narender Sahu Gangwar @ Nanhe as PW9; Sh. Dharmender as PW10; Sh. Avnesh Kumar as PW11; Sh. Naresh Kumar as PW12; Ct. Sunil as PW13; Ms ____z1________ as PW14; W/Ct. Yogita as PW15; Ct. Sheoveer as PW16; Ct. Harendra Singh as PW17; Ct. Bharat Pal as PW18; Ct. Subhash as PW19; HC Shankar Lal as PW20; HC Pratap Singh as PW21; Ct. Ravipal Singh as PW22; Sh. Anuj Bhatia Nodal Officer, Vodafone Essar Mobile Services Ltd. as PW23; SI Mukesh Kumar Jain as PW24; HC Dinesh Pathak as PW25; Retired SI Dhanveer Singh as PW26; SI U. Bala as PW27; SI Ravinder Singh as PW28; Inspector Virender Singh Punia as PW29; SI Hari Prakash Vats as PW30; and Dr. P.K. Singh as PW31.
SC No.183/13 State vs. Anil Kumar & Ors. Page 6 of 755. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution also examined Insp. Satish Kumar as PW32.
Defence of the Accused Persons
7. After closing of prosecution evidence statements of all the accused persons were recorded u/s 313 of the Code. All the material and incriminating evidence was put to them.
8. Accused Anil Kumar admitted that his wife accused no.2 was learning work of beautician but he did not know from where she was learning and that on 22.02.2007 he and his wife were arrested and their arrest memo and personal search memo were prepared and that on 23.02.2007 their five days police remand was obtained and that on 26.02.2007 he was taken to his village Ghanjera, PS Deoriya Kala and that on 28.02.2007 he and accused no 3 Prem Pal were taken to GTB Hospital for medical examination and that their samples were obtained SC No.183/13 State vs. Anil Kumar & Ors. Page 7 of 75 and seized by the police. He either expressed his ignorance about the remaining evidence or denied the same and pleaded that he was falsely implicated in this case.
9. Accused Prem Pal admitted that on 22.02.2007, accused Anil Kumar and his wife accused no 2 were arrested and their arrest memo and personal search memo were prepared and that on 23.02.2007 their five days police remand was obtained and that on 26.02.2007 accused no 1 was taken to his village and that on 28.02.2007 he and accused no. 1 were taken to GTB Hospital for medical examination and that their samples were obtained and seized by the police. He either expressed his ignorance about the remaining evidence or denied the same and pleaded that he was falsely implicated in this case.
10. Accused Anju admitted that she and her husband accused no.1 were arrested and their arrest memo and personal search memo were prepared and that on 23.02.2007 their five days police remand was obtained. She either expressed her ignorance about the remaining evidence or denied the same and pleaded that she was falsely implicated in this case.
SC No.183/13 State vs. Anil Kumar & Ors. Page 8 of 7511. After closing of evidence by both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counse/Amicus curie for accused persons and perused file.
Ingredients of the alleged Offences
12. The prosecution has to establish following ingredients to prove its case:
(1) In order to prove its case against the accused for the offence of criminal conspiracy punishable u/s 120B IPC, prosecution has to prove firstly, that accused persons hatched a criminal conspiracy against the deceased and secondly, that each of the accused persons was a party to a criminal conspiracy to commit above mentioned offences on the deceased prosecutrix.
(2) In order to prove its case against the accused persons for the offence of kidnapping or abducting in order to murder the deceased prosecutrix punishable u/s 364 IPC, prosecution has to prove that accused persons kidnapped or abducted the prosecutrix in order that she may be murdered or she was put in danger of being murdered.
(3) In order to prove its case against the accused persons that they committed an offence of kidnapping or abducting with intent secretly and wrongfully confining a SC No.183/13 State vs. Anil Kumar & Ors. Page 9 of 75 person, punishable u/s 365 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused persons and secondly, the prosecutrix was abducted or kidnapped with the intention to cause the prosecutrix to be secretly and wrongfully confined.
(4) In order to prove its case against the accused persons for the offence of robbery punishable u/s 392 IPC, prosecution has to prove that accused persons took away valuables of the prosecutrix by wrongfully restraining her etc. (5) In order to prove its case against the accused persons for the offence of murder punishable u/s 302 IPC, prosecution has to prove that accused persons committed culpable homicide of the prosecutrix with the intention of causing death or with the intention of causing such bodily injury as the accused persons knew to be likely to cause the death of the prosecutrix or with the intention of causing bodily injury to the prosecutrix sufficient in the ordinary course of nature to cause death or the accused persons knew that it was so imminently dangerous that it must in all probability cause death.
(6) In order to prove its case against the accused persons for the offence of causing disappearance of evidence of offence, punishable u/s 201 IPC, caused SC No.183/13 State vs. Anil Kumar & Ors. Page 10 of 75 evidence of the commission of offence to disappear, with the intention of screening them from legal punishment. (7) In order to prove its case that accused persons committed an offence of causing hurt by means of poisons etc., punishable u/s 328 IPC, prosecution has to prove firstly that accused no. 2 Anju administered either poison or stupefying, intoxicating or unwholesome drug in the Aloo Ki Tikki of the prosecutrix; and secondly, that Tikki was made to eat to the prosecutrix with the intention to commit or to facilitate the commission of an offence or knowingly it to be likely that she will thereby cause hurt to the prosecutrix.
(8) In order to prove its case against the accused Prem Pal for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix before her death; and secondly, that sexual intercourse was committed with her forcibly against her will and without her consent.
13. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution witnesses have proved all the offences against all the accused persons beyond any reasonable suspicion and shadow of doubt and all the accused persons are liable to be held guilty and convicted for all the alleged offences.
SC No.183/13 State vs. Anil Kumar & Ors. Page 11 of 75Plea of the Accused Persons
14. On the other hand Ld. Defence Counsel submitted that this case is based on circumstantial evidence. The prosecution has failed to connect the chain of events to prove its case against the accused beyond reasonable suspicion and shadow of doubt. The husband of the deceased PW-2 has failed to mention mobile number 9811484599 of the deceased in the first complaint lodged on 08.02.2007 vide DD No. 32 B. The prosecution has also failed to examine Sh. Yogesh, who was registered owner of the said mobile phone. This phone was recovered from the possession of PW-9 who stated that he had purchased that telephone from Sh. Bhupinder. The prosecution again failed to examine that Bhupinder. The prosecution has also failed to examine Arif, who was registered owner of telephone no. 9999453703. It could not be proved by prosecution that that phone belonged to PW-3. Besides, PW-10 who was an auto driver made improvements in the statement recorded under Section 164 of the Code. PW-11, who allegedly purchased jewellery from accused Anil and Prem Pal, has failed to identify them in the Court. In addition to, PW-14 is a child witness, who deposed as tutored by the police. PW-2 has also failed to identify part of the jewellery, i.e. bangles and the ring of the deceased. Doctor who conducted postmortem on the body of the deceased could SC No.183/13 State vs. Anil Kumar & Ors. Page 12 of 75 not detect any form of poison. The recoveries in consequence of the disclosure statements have not been proved beyond reasonable suspicion and shadow of doubt. Moreover, the police have failed to get the TIP of the accused persons conducted soon after their arrest by the concerned witness. The witnesses, first time identified the accused persons in the Court and that creates doubt about the genuineness of the testimonies of the concerned prosecution witnesses. It has been prayed by Ld. Defence Counsel that all the accused persons are entitled to get benefit of doubt.
Rulings in Support of the Arguments
15. In support of his arguments, Ld. Defence Counsel relied on following rulings:
I. Oma @ Omprakash & Anr. Vs. State of Tamil Nadu, AIR 2013 SC 825, wherein the Apex Court observed that:
"Evidently, the witnesses did not know the accused earlier; hence the accused could be identified only through a test identification parade which was not done in this case, so far as A-2 is concerned. In this connection, we may refer to the judgment of this Court in Mohd. Iqbal M. Shaikh v. State of Maharashtra (1998) 4 SCC 494: (AIR 1998 SC 2864: 1998 AIR SCW 1741) where in this Court held that: "If the witness did not know the accused persons by name but could only identify from their appearance then a test identification parade was necessary, so that, the substantive evidence in Court about the identification, SC No.183/13 State vs. Anil Kumar & Ors. Page 13 of 75 which is held after fairly a long period could get corroboration from the identification parade. But unfortunately the prosecution did not take any steps in that regard and no test identification parade had been held."
II. Naresh Vs. State of (Govt of NCT) of Delhi 2012 (3) JCC 2104, wherein the Delhi High Court observed that:
"We are mindful of the principle that a child can be a competent witness. However, there is no denying the principle that such a child's testimony must be believed only if it is consistent and inspires confidence. PW-2's testimony does not inspire confident. In this case, the appellant's conviction is overwhelmingly based on the child witness's testimony. The recoveries relied on were disbelieved. In view of these findings, the impugned judgment and order can not be sustained."
III. Arun Kumar Vs. State 1996 CRI.L.J. 2280, wherein the Delhi High Court observed that child evidence should not be given credence unless same is corroborated by any independent evidence.
IV. Sahadevan & Anr. Vs State of Tamil Nadu 2012 (2) RCR (Criminal)899 wherein the Apex Court observed that:
"With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has SC No.183/13 State vs. Anil Kumar & Ors. Page 14 of 75 taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In Arunj Marik v. State of Bihar, [1994 Supp. (2) SCC 372], this Court took the view that the where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstance to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded."
16. Let us now deal with the arguments of Ld. defence Counsel one by one. The first argument of Ld. defence Counsel was that the husband of the deceased PW-2 had failed to mention mobile number 9811484599 of the deceased in the first complaint lodged on 08.02.2007 vide DD No. 32 B. The prosecution had also failed to examine Sh. Yogesh, who was registered owner of the said mobile phone. That phone was recovered from the possession of PW-9 who stated that he had purchased that telephone from Sh. Bhupinder. The prosecution had also failed to examine that Bhupinder. The prosecution had also failed to examine Arif, who was registered owner of SC No.183/13 State vs. Anil Kumar & Ors. Page 15 of 75 telephone no. 9999453703. He submitted that it could not be proved by prosecution that that phone belonged to PW-3.
17. This argument of Ld. defence Counsel is not tenable as the testimonies of prosecution witnesses and particularly PW2, PW23 and PW28 have established that the mobile number 9811484599 was in possession of the deceased ___z____ at the time of incident. PW2 identified mobile phone Nokia 3610 of his deceased wife as Ex. P-2.
18. The next argument of Ld. defence Counsel was that PW-10, who was an auto driver made improvements in the statement recorded under Section 164 of the Code. On perusal of file, I find that in the Court PW10 deposed that on 07.02.2007, at about 7.30 or 7.45 PM, when he was standing at gate No. 7 with his TSR bearing No. DL1RH-1033, accused Prem Pal present in the Court, came to him alone and told him that his sister in law (Bhabi) was not well and he asked him to drop them at Krishna Vihar, Phase-II. Thereafter, he took him to Krishna Vihar, Phase II and dropped him there. He also took Rs. 50/- as fare from him. As PW-10 resiled from his previous statement, therefore, he was declared hostile. In cross examination, he admitted that accused Prem Pal asked him to SC No.183/13 State vs. Anil Kumar & Ors. Page 16 of 75 accompany him towards Bhopra side and when he along with Prem Pal reached in front of GTB Canteen, two ladies and one gent were standing and one lady was thin and another lady was of medium built, who was vomiting at that time and accused Prem Pal told him that the lady who was vomiting was his sister in law and others were his friend and that he dropped them at Krishna Vihar, Phase-II in an area which was surrounded by factories only. He also identified all the three accused persons correctly in the Court.
19. In the statement under Section 164 of the Code he stated before Ld. Metropolitan Magistrate that he was operating a hired TSR from gate No. 7 of GTB hospital. On 07.02.2007, Prem Pal came there and asked him that his sister-in-law (bhabhi) was not feeling well and that he should drop them. He had seen many times Prem Pal previously on auto stand with an auto. He was having talk with him but he was acquainted with him. He dropped him in his TSR at Krishna Vihar, Phase-II and received rupees 50/- as fare.
20. On analyzing the statement made before this Court and the statement made before Ld. Metropolitan Magistrate, I am of the view that like improvements has SC No.183/13 State vs. Anil Kumar & Ors. Page 17 of 75 been made by the PW10 are the usual improvements which are made by the witness and these are liable to be ignored.
21. My decision in this regard finds support by principles of law laid down in case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696 the Apex Court in paragraph 13 observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
22. The next argument of Ld. defence Counsel was that PW11 who allegedly purchased jewellery from accused Anil and Prem Pal has failed to identify them in the Court. PW11 deposed that he was goldsmith by profession and SC No.183/13 State vs. Anil Kumar & Ors. Page 18 of 75 was running his jewellery shop from Purana Bazar. In the month of February, 2007, accused Prem Pal and Anil came to his shop and sold to him two gold bangles and one gold ring. In the month of February itself police came to his shop along with above named accused persons Prem Pal and Anil and the two gold bangles and one gold ring, which were sold by the accused persons to him were handed over by him to the police. Those articles were kept in the pullinda and were seized vide memo Ex. PW-11/1. The witness, on opening the pullinda identified the gold bangles as Ex. P-3 and P-4 and gold ring as Ex. P-5. However, he could not identify the accused persons in the Court.
23. This argument of Ld. defence Counsel is not convincing for the reasons that identity of the accused Anil Kumar and Prem Pal have been established beyond reasonable suspicion and doubt by testimonies of other prosecution witnesses. The above mentioned jewellery was recovered consequent upon the disclosure statements made by these accused persons. That is admissible in evidence. The recovery of above mentioned jewellery, also identified by the PW11 connected both the accused persons with the crime.
SC No.183/13 State vs. Anil Kumar & Ors. Page 19 of 7524. The next argument of Ld. defence Counsel is that PW14 is a child witness, who deposed as tutored by the police and her testimony is not reliable and trustworthy.
25. PW14, minor daughter of the deceased deposed that her mother was beautician. She was doing the business of beautician in the name of Aakash Beauty Parlour, Gali No. 9, Ashok Nagar, Delhi. Her mother was also teaching the art of beautician at the said shop. One girl, namely Anju, who was accused present before the Court, had been coming to attend teaching lessons of beautician from her mother since 28.01.2007. On 07.02.2007 in the evening at about 5.00 PM, accused Anju had come to the shop of her mother and at that time she was also present at the shop. At that time, her mother was having tea and accused Anju told her that there was a party of marriage and asked her to apply Mehndi. Initially, her mother told her that she was not interested to go there but on the insistence of Anju, she left. In the meantime, accused Anju made a telephone call from STD booth situated in front of their shop and told to somebody that she was bringing her. Thereafter, her mother left with Anju but she never returned. Her mother was wearing light brown colour suit, grey colour cardigan, white colour shawl, SC No.183/13 State vs. Anil Kumar & Ors. Page 20 of 75 black colour leather sleeper, four gold rings, three gold chains, double ear gold rings and one gold nose pin, when she went away with Anju. She identified above mentioned clothes/articles of her mother as Ex. P-6 to P-11, respectively. She also identified her mother`s ring as Ex. P-5, gold chain as Ex. P-6, Mobile phone as Ex P-2. She also stated that she was unable to identify another mobile Ex. P-1 and bangles P-3 and P-4 of her mother.
26. In cross examination PW14 stated that her mother used to go to her shop at about 10.00 AM and she used to return about 8.00 PM. Anju was the only girl who was coming to learn the work of beautician at that time. She did not know Anju prior to 28.01.2007. She (PW14) used to go to shop of her mother regularly during about 2.00 PM till about 8.00 PM. She admitted that she had seen accused Anju for the first time in the Court after 07.02.2007. Police had read over her statement to her while she was standing outside the Court and the accused Anju was also shown to her by the police in the Court. She denied the suggestion that she had identified the accused Anju at the instance of the police. She had pointed out the shop of her mother and the STD Booth on 09.07.2007.
27. On analyzing the evidence of PW14, I find that SC No.183/13 State vs. Anil Kumar & Ors. Page 21 of 75 her testimony is reliable and trustworthy. Her testimony can not be discarded merely on the ground that she was daughter of the deceased ___z____ and she was minor at the time of incident. The principles of law laid down in case of Naresh Vs. State of (Govt of NCT) of Delhi (supra) relied on by Ld. defence Counsel, instead of providing any benefit to the accused, support the prosecution case because testimony of the child witness, PW14, on scrutiny has been found as reliable, consistent and trustworthy.
28. The next argument of Ld. defence Counsel was that PW2 has failed to identify part of the jewellery, i.e. bangles and the ring of the deceased and that has created reasonable suspicion and shadow of doubt in the trustfulness of the prosecution case.
29. PW2, husband of the deceased deposed that he was doing the job of Computer maintenance at Surajpur, Noida. On 07.02.2007 when he came to his house from his job, his wife was not found in the house. He asked his daughter Aanchal Jail about his wife. She told that one lady named Anju had taken his wife for applying Mehandi at House No. 28 A, West Jyoti Nagar, Delhi. He visited the said house but his wife was not found there and he tried to make telephone call to her on her cell phone but the phone SC No.183/13 State vs. Anil Kumar & Ors. Page 22 of 75 was switched off. He made a call on number 100 from Durgapuri Chowk. He went to PS MS Park. Police did not lodge his report on that day. On 08.02.2007, he again went to PS and lodged missing report of his wife at PS in that regard and on 11.02.2007 he again went to the PS and lodged the FIR, carbon copy of which was Ex. PW-2/1 and that was signed by him at point A. On 20.02.2007, he came to know from SI Ravinder that Anju had been apprehended from Nand Nagri. He went to PS MS Park and identified Anju, who was present in the Court. On 23.02.2007, he joined the investigation with the IO SI Ravinder Kumar, VS Punia and three other constables. Accused Anil and Prem Pal, both accused present in the Court were also present with them. They went to PS Loni and from there they went to Police Post Shiv Vihar and from there they again went to PS Loni. Police Officials of PS Loni produced a cloth pullinda and it was opened. Clothes of his wife were taken out from it and those were shown to him. He had identified those clothes belonging to his wife. One Sandal and one bichhua of silver were shown to him by police officials of PS Loni and he also identified the same belonging to his wife. Those clothes and articles were taken into possession vide seizure memo Ex. PW-2/2 which was signed by him at point A. Two gold rings, one gold chain and two gold bangles were produced in the Court and those were shown to PW-2.
SC No.183/13 State vs. Anil Kumar & Ors. Page 23 of 75He identified the same and these belonged to his deceased wife. Chain, ring, gold bangles and gold ring were exhibited as P-12, P-13, P-3, P-4 and P-5, respectively. He also identified slipper, one ladies suit, one cardigan, one shawl, one bra and one panty belonging to his wife. These were exhibited as Ex. P-6 to P-11, respectively. He identified one mobile phone make Nokia 3610 as Ex. P-1 and deposed that it belonged to his wife.
30. This argument of Ld. defence Counsel is not tenable because PW-2 identified most of the jewellery and clothes and other articles of his wife as mentioned in detail herein above. Besides, PW14 also identified jewellery, clothes and other articles of her mother.
31. The next argument of Ld. defence Counsel is that the Doctor who conducted postmortem on the body of the deceased could not detect any form of poison and that has created reasonable suspicion and shadow of doubt in the trustfulness of the prosecution case.
32. PW31 deposed that on 10.02.2010 at 3.30 p.m. he conducted postmortem on the body of an unknown female aged about 35 years sent by P.S. Loni, Ghaziabad in a sealed condition and it was found intact. The body was SC No.183/13 State vs. Anil Kumar & Ors. Page 24 of 75 brought by Harender Singh CP-952 and Gajraj Singh CP-1758 of P.S. Loni, Ghaziabad. Postmortem report was recorded vide P.M. No. 2003/7 in his own handwriting and signature. Rigor mortis had passed from the body and signs of decomposition were present and well developed, PM staining was seen. Time since death was about 2-1/2 half days. The deceased had an average built and muscularity anti mortem injuries were absent. The wounds shown in the panchayatnama were not true wounds, but were artifacts created by animals. The brain had been liquified and both lungs were swollen and congested. The internal surface of the stomach was congested and gall blader was also congested and swollen. Urinary blader and uterus were empty. The death was due to suspected poisoning. The internal organs and viscera were preserved and sent for chemical analysis as mentioned in the PM report. The deceased was under 150 cm in length the length of the sole was 22 cm, length of the hair of the head was about 40 cm. and she was a fair coloured female. After PM examination the body was handed over to the concerned police staff with a sealed bundle containing 8 items found on the body of the deceased as mentioned in PM report. 9 papers were submitted before him at the time of submitting the dead body for PM. He put his initials and signature on postmortem report EX.PW31/A prepared by SC No.183/13 State vs. Anil Kumar & Ors. Page 25 of 75 him and signed it at point A. On 07.03.2011 he gave his opinion in the matter in view of the letter no. 525 dated 03.03.2011 of SHO P.S. GTB Enclave. The viscera analysis report No. CFSL (K)/EE/2007(DEL)-440 dated 28.11.2007 was placed before him and he had seen the report that no common poison could be detected in the contents of each of the exhibits marked 440/1, 440/2 and 440/3 respectively. He gave his report regarding cause of death as asphyxia. He proved his report as EX.PW31/B.
33. Although, it has been established by testimony of PW31 that cause of death of the prosecutrix was found as asphyxia, yet his testimony did not rule out consumption of obnoxious, poisonous or sedative substance by the deceased. Ld. Defence Counsel did not cross examine him on this aspect. On the basis of evidence on record it can safely be inferred that the deceased ___z____ was administered obnoxious, sedatives or poisonous substance. Thus, this arguments of Ld. defence Counsel does not provide any benefit to the accused persons.
34. The next argument of Ld. defence Counsel is that recoveries of articles consequent upon the disclosure statements of the accused persons have not been proved beyond reasonable suspicion and shadow of doubt and SC No.183/13 State vs. Anil Kumar & Ors. Page 26 of 75 that has created reasonable suspicion and shadow of doubt in the trustfulness of the prosecution case.
35. PW 22 deposed that on 22.02.2007 he along with Ct. Sheovir joined the investigation of this case with SI Ravinder Singh. At about 10.45 AM, they were present at B Block Nand Nagri where secret information was received by SI Ravinder Singh through secret informer that accused Sonia @ Anju @ Bobby and her husband Anil, involved in the present case, would come at place near old Police station Nand Nagri. Both of them were apprehended. They informed the SHO and from the police station SI Virender Punia and Lady Constable Yogita came to the spot. Both the accused persons were produced before SI Virender Punia. During interrogation, accused Anju disclosed that she was working in the beauty parlour at Ashok Nagar and the owner of the said beauty parlour used to wear gold ornaments. Since they had to repay as they had borrowed huge amount of money, so she told her husband Anil that the owner of the said beauty parlour used to wear gold ornaments and she was a very rich lady. Thereafter, she along with her husband made plan to rob the owner of the said beauty parlour. One day, Anju took her to near Jyoti Nursing Home on the pretext that there was a marriage and Mehandi ceremony was to be performed there. Anju SC No.183/13 State vs. Anil Kumar & Ors. Page 27 of 75 gave intoxicating pills power by mixing in aloo ki tikki to the owner of the beauty parlour. After consuming said intoxicated aloo ki tikki, ___z____, owner of the beauty parlour became unconscious. Then, accused Anju gave a telephone call to her husband Anil. When condition of Ranu deteriorated, Anju took her near GTB hospital on the pretext that she will get her treated in the hospital and from GTB Hospital, she again made a telephone call to her husband from the mobile phone of ___z____. Thereafter, accused Anil along with his friend Prem Pal reached near the canteen of GTB hospital at about 8.00 PM. Thereafter, accused Prem Pal brought a TSR and they all went to factory area in Loni, Krishna Vihar, Phase-II. They left the TSR and went to the factory area on foot and in one gali they robbed the ornaments of ___z____ and strangulated her with a shawl. Anju also disclosed that accused Prem Pal also committed rape upon ___z____, before strangulating her. They disfigured the face of ___z____ with the help of brick. Both the accused persons were arrested by SI Virender Punia vide arrest memos Ex. PW-22/A and Ex. PW-15/2 and personal search memos Ex. PW-22/B and Ex. PW-15/3. Ex. PW-22/A and Ex. PW-15/2 were signed by him at point A. Thereafter, accused Prem Pal was arrested from his house at Nand Nagri at the instance of accused Anju and Anil vide arrest memo Ex. PW-16/1 and personal SC No.183/13 State vs. Anil Kumar & Ors. Page 28 of 75 search memo Ex. PW-16/2. All the three accused persons made their disclosure statements during the course of investigation. Thereafter, they pointed out the Krishna Vihar Phase-II, Gali No. 13 and stated that they robbed ___z____ and committed her murder there. Pointing out memo was prepared in this regard by the IO. PW-22 identified all the accused persons present in the Court correctly.
36. PW 28 deposed that on 11.02.2007 he was posted at PS Mansarovar Park. On that day investigation of the present case was marked to him. He flashed WT message to all SSPs of India, SHOs of Delhi regarding missing of the lady namely ___z____ and informed missing person squad. On the same day, he had gone to the residence of missing lady at C-499, Gali no. 5, Ashok Nagar, Shahdra Delhi. One girl aged about 11 years namely ____z1________ met her there. He recorded her statement as she was the girl who was with missing lady namely ___z____, her mother. She told that accused Anju, present in the Court, correctly identified, was an employee at the beauty parlour of her mother and she had called to some person from STD Booth situated in front of the beauty parlour and she had told to the called person that they were coming. He went to the STB booth and tried to SC No.183/13 State vs. Anil Kumar & Ors. Page 29 of 75 collect the details of the called number but the same could not be available. However, he noted down the telephone number of the STD booth. On 13.02.2007, he came to know that accused Anju used to reside in House No. C-3/99, Nand Nagri, Delhi. He visited that place and came to know that she had already left that premises. On 14.02.2007, he went to the house of her mother. Her mother namely, Kailasho Devi met him but she did not provide address of Anju and Anil to him. However, she provided one group photograph of Anju and her husband and their child. On the back of the photograph, one mobile number of Anil was written. Photograph was proved as Ex. PX. That number was put on surveillance. With the help of photograph, he searched both the accused by showing the photograph to different persons. He obtained the call details; Ex.PW-28/A of the phone number 9999453703 of Anil and phone number 9811484599 belonged to ___z____ and proved as Ex. PW-28/B. It was revealed that the number used by accused Anil was allotted to one Salauddin. He made enquiries from Salauddin and recorded his statement. He carefully scrutinized the phone call details and found that on 07.02.2007 at about 5.22 PM, call was made on 9999453703 from the STD booth. It was also revealed on the scrutiny of call details Ex. PW-28/A, that from mobile number of the deceased, three calls were SC No.183/13 State vs. Anil Kumar & Ors. Page 30 of 75 made on the mobile number of Anil between 6.45 to 7.00 PM. The details were encircled at portion B on Ex. PW-28/B. That confirmed that conversation had taken place on these numbers. Accused Anju and Anil were apprehended. The investigation was handed over to SI Virender Singh Punia who interrogated the accused persons. Their arrest memo and personal search memo Ex. PW-15/2, Ex. PW-22/A, Ex. PW-15/3 and Ex. PW-22/B were prepared which were signed by him at point B. During investigation they also revealed that there was involvement of another co- accused namely Prem Pal, resident of C-2/513, Nand Nagri. He was also arrested and his arrest memo Ex. PW-16/1 and personal search memo Ex. PW-16/2 were prepared which were signed by him at point B. Accused persons had pointed out at a place in Gali no. 13, Krishna Vihar, Phase II, Loni, where they had killed the lady ___z____. Two public persons had confirmed about the finding of dead body at that place. Those two persons disclosed to the IO that the Kotwali police, Loni had taken the dead body. They went to PS Loni. Complainant _x__ was also called at PS Loni. SI Hari Prakash Vats had confirmed about the finding of a dead body of a lady. He was shown a photograph of that lady. The photograph was Mark PX. After seeing the photograph and the description of clothes, etc. complainant identified the same to be his wife ___z____.
SC No.183/13 State vs. Anil Kumar & Ors. Page 31 of 75Thereafter, they interrogated the accused persons separately and thereafter IO recorded disclosure statement of Anju as Ex. PW-15/1, Anil as Ex. PW-22/DA and that of Prem Pal as Ex. PW-16/3. All these were signed by him at point Y and pointing out memo Ex. PW15/4 was signed by him at point C. On 23.02.2007, they had gone to Karkardooma Courts and obtained 5 days Police Custody remand of accused persons. Accused Anju and Anil told IO that they had kept some robbed articles, taken from the deceased, at house no. 173, Gali No. 5, Mandoli Extension, Mandoli Chunggi, PS Nand Nagri, Delhi. Accused persons took them to said address and opened a room constructed on first floor and from a bag of blue colour took a broken chain of yellow colour, a ring of yellow colour without stone. IO converted the same into parcel and sealed with VSP and took into possession vide seizure memo Ex. PW-15/5 which was signed by him at point B. Thereafter, they went to PS Loni. SI Punia gave a written request for handing over the clothes and related articles of the deceased and the same were shown to the Rajesh, husband of the deceased after calling him there. The complainant after seeing all the articles confirmed that the dead body recovered by Loni Police was the dead body of his wife ___z____. The articles were seized vide memo Ex. PW-28/C. The wetness identified the lady slipper, one lady SC No.183/13 State vs. Anil Kumar & Ors. Page 32 of 75 suit, one cardigan, one shawl, one bra, one panty, Ex. P-6 to Ex. P-11 as the same which were produced before SI Virender Punia. Witness also identified ring without stone and broken yellow colour chain, recovered at the instance of accused Anju and Anil as Ex. P-5 and Ex. P-6.
37. PW 15 deposed that on 22.02.2007 he was present in P.S. M.S. Park and he was directed to go to CAW Cell, office at B-Block Nand Nagri. He went there and met SI Ravinder, Ct. Ravi Pal, Ct. Sheovir and accused Anju and Anil Kumar. Accused Anju was interrogated by the IO and she made disclosure statement EX.PW15/1. She was arrested vide memo EX.PW15/2 and her personal search was taken vide memo EX.PW15/3. Her husband Anil was also arrested. Both the accused persons led the police to the place where the dead body was thrown by them after murder of the victim. Pointing out memo EX.PW15/1 was prepared which was signed by him at point A on next day i.e. on 23.02.2007. Both the accused persons led the police to H.No. 173, first floor, Gali No. 5, Mandoli Extension and one broken yellow colour chain and one yellow colour ring without stone were got recovered from one blue colour bag lying in the said room. Both the articles were sealed in a pulinda and sealed with the seal of VSP and taken into possession vide memo EX.PW15/5. Thereafter, both the SC No.183/13 State vs. Anil Kumar & Ors. Page 33 of 75 accused persons were taken to Kotwali, Loni by them. Husband of the deceased had identified the clothes and chappal of the deceased. He also identified yellow colour chain as EX.P12 and one yellow colour ring without stone as EX.P13. PW16 also deposed on the same line and corroborated the statement of PW15.
38. PW4 deposed that accused present in the court was his nephew. He was agriculturist. On 10.2.2007 accused Anil came to his native place and handed over one mobile phone make Nokia 3610. On 14.2.2007 the said phone was got activated by him from Hutch by buying a new SIM card. On 26.2.2007 police came to his house and said phone was taken into possession vide seizure Ex PW4/1.
39. PW5 deposed that on 26.2.2007 police party came to his village with accused Anil and Prem Pal in their custody. The police brought one Narender to his village and seized one mobile phone. He admitted that Bhoop Singh uncle of accused Anil had produced one mobile phone to police and that was taken to the possession vide Ex. PW4/1. He also admitted his signature on seizure memo Ex. PW5/1.
SC No.183/13 State vs. Anil Kumar & Ors. Page 34 of 7540. PW9 deposed that on 26.02.2007, he was brought by the police from Bareilly to his village in connection with this case. He had purchased one white colored mobile phone from a boy Bhupender from Bareilly. That phone was seized vide memo EX PW5/1 which was signed by him at point B. He identified the phone Nokia 3610 Ex P2 in the court correctly. He admitted that accused Anil and co accused Prem Pal were present with the police and he got the number 9759614171 of the SIM activated.
41. The evidence on record and particularly narrated herein above have established that accused persons, during their interrogation made disclosure statements and led the police party to different places and not only pointed the place of incident from where dead body of deceased ___z____ was recovered but also led to different places, i.e. their homes, jewellery shop, etc. and consequently they got recovered number of jewellery, articles and mobile phones. These recoveries have connected the accused persons to the alleged crime. Therefore, the arguments of Ld. defence Counsel in this regard are not convincing.
42. The next argument of Ld. defence Counsel was that IO failed to get the TIP of the accused persons SC No.183/13 State vs. Anil Kumar & Ors. Page 35 of 75 conducted soon after their arrest by the concerned witnesses. The witnesses, first time identified the accused persons in the Court and that has created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
43. The argument of Ld. defence Counsel that IO failed to get the TIP of the accused persons conducted is correct.
44. My attention goes to a case of Nibaran Borah v. State of Assam, (Gauhati), 2006 Cri. L.J. 4222, GAUHATI High Court Observed:
"13. In Kanta Prashad v. Delhi Administration (AIR 1958 SC 350) : (1958 Cri LJ 698) the Apex Court has made it clear that failure to hold a TIP does not make the evidence of identification, at the trial, inadmissible. However, the weight to be attached to such identification would be for the Court of fact to decide and that it is prudent to hold TIP with respect to witnesses, who did not know the accused before the occurrence. The relevant observations made in Kanta Prashad (supra) run as follow (para 5) :
"It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to re- assess the SC No.183/13 State vs. Anil Kumar & Ors. Page 36 of 75 evidence unless exceptional grounds were established necessitating such a course."
14. Having taken into account the decisions in Kanta Prasad (supra); Harbhajan Singh v. State of Jammu and Kashmir (AIR 1975 SC 1814); Jadunath Singh v. State of U.P. (AIR 1971 SC 363) : (1971 Cri LJ 305) and some other authorities, the Apex Court held, in George v. State of Kerala, 1998(2) R.C.R.(Criminal) 199 (SC) : (AIR 1998 SC 1376) : (1998 Cri LJ 2034), as follows (para 29) :
"It cannot be denied however that though not fatal, absence of the corroborative evidence of prior identification in a T.I. parade makes the substantive evidence of identification in Court after a long lapse of time a weak piece of evidence and no reliance can be placed upon it unless sufficiently and satisfactorily corroborated by other evidence."
15. From what have been observed in George (supra), it is clear that though absence of identification parade does not make the evidence of identification at the trial, inadmissible, the Court has the duty to ascertain as to how far the evidence of identification of the accused, at the trial, can be safely relied upon. In short, while the evidence of identification of an accused, at a trial, is admissible and substantive piece of evidence, it will depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. The rule of prudence may urge a Court, in a given case, that the Court should look for some corroborative piece of evidence.
17. In the case of Malkhan Singh v. State of M.P., reported in 2003(3) R.C.R.(Criminal) 550 : 2004(1) Apex Criminal 318 : (2003)5 SCC 746 : (2003 Cri LJ 3535), the Apex Court has clarified that the TIP is not substantive piece of evidence and to hold the TIP is not even the rule of law, but a rule of prudence so that the SC No.183/13 State vs. Anil Kumar & Ors. Page 37 of 75 identification of the accused inside the Court-room, at the trial can be safely relied upon in Malkhan Singh (supra), the Court, while observing that identification of an accused in a Court should, as a rule of prudence, be preceded by a TIP, has, in no uncertain words, clarified that this rule of prudence is, however, subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can, without such TIP or other corroboration, safely rely. The Apex Court has also clarified, in Malkhan Singh (supra), that the identification parades belong to the stage of investigation and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade, the TIPs do not, points out the Apex Court in Malkhan Singh (supra), constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure and, hence, failure to hold a test identification parade would not make inadmissible the evidence of identification in Court, though the weight to be attached to such identification should be a matter for the Courts of fact to determine. Asserted the Apex Court, in Malkhan Singh (supra), that in appropriate cases, the Court may accept the evidence of identification even without insisting on corroboration. (Kanta Prashad v. Delhi Administration, AIR 1958 SC 350 : (1958 Cri LJ 698); Vaikuntam Chandrappa v. State of Andhra Pradesh, AIR 1960 SC 1340 : (1960 CrI LJ 1681); Budhsen v. State of U.P., AIR 1970 SC 1321 : (1970 Cri LJ 1149) and Rameshwar Singh v. State of Jammu and Kashmir, (1971) 2 SCC 715 : (AIR 1972 SC 102 : 1972 Cri LJ 15)).
18. What emerges from the above discussion is that the identification of an accused inside the court-room, at a trial, is an admissible piece of evidence and because such identification of an accused is admissible in evidence, such evidence of identification is a substantive piece of evidence. It is, therefore, permissible to rely on such piece SC No.183/13 State vs. Anil Kumar & Ors. Page 38 of 75 of evidence as a rule of law, but the rule of prudence demands that in the absence of a TIP having been held properly and in accordance with law, the conviction of an accused must not be based entirely on his being identified, at the trial, by a witness, who did not know the accused. There is, however, no legal impediment in convicting an accused on the basis of his identification at the trial provided that the Court has good reasons to believe the evidence of identification at the trial, particularly, when there is other corroborative evidence on record, direct or circumstantial."
45. My attention also goes to a case of Sunil Kumar v. State of Haryana, (P&H) ,2008(1) R.C.R.(Criminal) 253, wherein P&H High Court observed that:
"It is common case of both the parties that identification parade in this case was not conducted in the presence of the complainant. If the appellants were sure that they are falsely implicated, they could have asked for identification parade to be held. It is not the case of prosecution that complainant was not aware of the identification of the appellants for them to hold identification parade. It was for the appellants to seek identification parade in case they wanted to get any benefit in regard to identification. The identification of the appellants, as done by the complainant, is a sufficient assurance to hold that they indeed are the one who had committed this robbery at the Farm House of the complainant and no benefit can accrue to the appellants on this count".
46. The principles of law laid down in Nibaran Borah v. State of Assam, (Gauhati) (supra) and Sunil Kumar v. State of Haryana, (P&H) (supra) are applicable on the facts of the SC No.183/13 State vs. Anil Kumar & Ors. Page 39 of 75 present case. TIP of accused Anju was not necessary as PW14, daughter of the deceased ___z____ knew her prior to the alleged incident. The involvement of accused Anil Kumar and Prem Pal have been established by circumstantial evidence. Therefore, the arguments of Ld. defence Counsel and principles of law laid down in Oma @ Omprakash & Anr. Vs. State of Tamil Nadu (supra) relied on by Ld. defence Counsel in that regard is not convincing.
47. It was also argued that theory of last seen is not attracted in the present case. In view of the evidence on record and particularly discussed in this judgment, arguments of Ld. defence Counsel is not tenable. The principles of law laid down in Sahadevan & Anr. Vs State of Tamil Nadu, (supra), relied on by Ld. Defence Counsel instead of providing benefit to the accused support the prosecution case.
Evidence on Record
48. After answering the plea of Ld. Defence Counsel, it would be appropriate to summarize the remaining evidence on record which is as follows:
SC No.183/13 State vs. Anil Kumar & Ors. Page 40 of 7549. PW 23 deposed that he brought the record pertaining to connection No. 9811484599. This connection was provided by Vodafone company vide prepaid Application Form No.A-561715 to Yogesh Dabas, son of Mange Ram Dabas. The attested photocopy of application form and driving license, as proof of identity and address, were proved as Ex. PW-23/A and Ex. PW-23/B. That connection was activated on 29.10.2006. He also brought record of connection No. 9999453703. This connection was also provided by Vodafone company vide prepaid Application Form No. 3001894884 to Arif son of Abdul Khaliq. The photocopy of the Application Form was proved as Ex. PW-23/C, driving license, as proof of identity and address, was proved as Ex. PW-23/D and photocopy of Declaration Form from outstation customer was proved as Ex. PW-23/E. This connection was activated on 05.06.2008. He also brought call record of mobile number 9999453703 for the period 01.02.2007 to 15.02.2007. The call details were proved as Ex. PW-32/F. The call record of mobile number 9811484599 for the above mentioned period was proved as Ex. PW-23/G and outgoing call details from mobile number 9811484599 to 9999453703 were proved as Mark X in red colour on Ex. PW23/G and incoming call details to mobile number 9999453703 from mobile number 9811484599 were proved as Mark Y in red colour on Ex.
SC No.183/13 State vs. Anil Kumar & Ors. Page 41 of 75PW-23/F.
50. PW29, interalia, deposed that on 25.02.2007 he again joined the investigation of the present case alongwith IO Ct. Mange Ram, Ct. Narender, Ct. Ravi Pal and accused persons. First of all they reached at District Badau. On 26.02.2007 they went in Village Ganjera, P.S. Deoriya, District Pilibhit. One mobile phone make Nokia 2300 was recovered from Bhoop Ram who was uncle (tau) of accused Anil. The mobile phone make Nokia 2300 belonged to accused Anil and he had handed over the same to his uncle Bhoop Ram. They had also recovered one mobile phone make Nokia 3610 from one Nanhe @ Narender Sarup Gangwal to whom accused Anil sold the phone for a consideration of Rs.1200/-. Mobile make Nokia 3610 belonged to deceased ___z____. Both these mobile phones were taken into possession vide seizure memo EX.PW4/1 and EX.PW5/1. IMEI Numbers of both the mobile phones were written in seizure memo. They again went to District Badau at Kotwali, Murfi Chowki Sarrafa Bazar shop of Avnesh Jewelers and met its owner Avnesh Kumar Gupta. Accused Anil and Prem Pal had disclosed that they sold two gold bangles and one gold ring weighing about 28 grams to said jeweler. That jeweler produced two gold bangles and one gold ring and disclosed that he had purchased SC No.183/13 State vs. Anil Kumar & Ors. Page 42 of 75 those articles from the accused persons at market rate. The same was taken into possession after sealing the same with seal of SK vide seizure memo EX.PW1/A. The owner Avnesh Kumar Gupta also signed at point A on the seizure memo EX.PW11/1. On 27.02.2007 he again joined the investigation. Accused Prem Pal had led them to his house at C-2/513, Nand Nagri and produced his clothes i.e. one black colour pant, one white shirt having strips, one baniyan and one underwear which he was wearing on the date of commission of offence. He also deposed that apart from baniyan other clothes he had washed his other clothes. All his wearing clothes were taken into possession vide memo EX.PW18/A which was signed by him at point A. Thereafter, accused Anil led them to H.No. 173, Gali No. 5, Mandoli Extension and he also produced the clothes i.e. one pant of earth (matiala) colour, one check shirt of pink colour and one underwear of navy blue colour and clothes were also taken into possession after sealing the same with the seal of S.K. vide seizure memo EX.PW21/A. Thereafter, both accused Anil ad Prem Pal were taken to GTB Hospital for their medical examination. Both the accused persons were medically examined vide MLC EX.PW7/1 and EX.PW7/2. Doctors also took the blood samples from both the accused persons and handed over to Ct. Bharat Pal and IO seized the same vide memo EX.PW18/B. On 28.02.2007 SC No.183/13 State vs. Anil Kumar & Ors. Page 43 of 75 he again joined the investigation and both the accused Anil and Prem Pal were taken out from the lock up and they led the police to GTB Hospital where accused Prem Pal had pointed out towards an auto TSR No. DL-1RH-1033 which was standing outside gate No. 7 and that was being driven by his friend Dharmender on the alleged date of commission of offence on 07.02.2007. TSR was produced by its owner Ashok Kumar Gupta and it was also seized vide memo EX.PW8/2. The witness also identified mobile Nokia 2300 in the court as EX.P1, another Nokia 3610 as EX.P2, gold bangles as EX.P3 & P4 and gold ring as EX.P5. He also identified clothes of the deceased as EX.P6 to P11, gold ring and one gold chain as EX.P12 & P13 and clothes of accused Anil as EX.P14, P15 & P16 and clothes of accused Prem Pal as EX.P17 and TSR No. DL-1RH-1033 as EX.PW29/P1.
51. PW30 deposed that on 08.02.2007 he was posted at PS Loni, Ghaziabad as SI. On that day he received information from one Mithlesh Shah at about 11.15 AM that one dead body of a lady was lying near Gali No. 13, near Jain Farm. The information was converted into general diary entry no. 26. He along with Constable Gajraj, Ct. Harinder reached at that place where dead body was lying. They tried to get the dead body identified but at that SC No.183/13 State vs. Anil Kumar & Ors. Page 44 of 75 time no clue could be obtained. He got the photographs of the dead body and called persons from the crowd there to carry out the panchnama proceedings, Ex. PW-30/A. Mithlesh Shah, Ravinder, Tejpal, Madan and Satpal Singh were present there at the time of preparation of panchnama proceedings. The dead body was handed over to Ct. Harender and Ct. Gajraj and the same was sent to mortuary Ghaziabad for the purpose of postmortem and he made a request vide application Ex. PW-30/B to CMO Ghaziabad for conducting the postmortem and also made a request vide Ex. PW-30/C for preserving the photographs and finger prints of unidentified dead body to the Crime Record Bureau. He proved the panchnama as Ex. PW30/D. On 10.02.2007, postmortem on the dead body was conducted by Dr. P.K. Singh, Medical Officer, Incharge vide P.M. Note 203/07, mark P-30/A. The constables deposited in the malkhana, the belongings of the deceased which were sealed by the Doctor in the pullinda and were given to them.
52. PW32 is the main IO who deposed about the investigation conducted by him on 25.02.2007, 26.02.2007, 28.02.2007, 30.3.2007, 10.4.2007, 25.4.2007, 29.4.2007, 03.5.2007, 05.5.2007 and 06.5.2007. He further proved all the above referred documents and further SC No.183/13 State vs. Anil Kumar & Ors. Page 45 of 75 identified the case property EX.P1 to P17 and TSR EX. 29/P1.
53. PW18 further corroborated the testimony of PW29 regarding investigation took place on 27.02.2009 and he also identified the clothes of accused Prem Pal as EX.P17.
54. PW7 deposed that on 27.02.2007 at 8.30 p.m. he medically examined Prem Pal vide MLC EX.PW7/1 and accused Anil vide MLC EX.PW7/2 and as per his opinion there was nothing to suggest that these persons were incapable to perform sexual act.
55. PW17 deposed that on 08.02.2007 he was posted at P.S. Loni. On that day at about 11.30 a.m. GD No. 26 was received by SI Hari Prakash Vats regarding lying of dead body of one lady in Gali No. 13 opposite Jain Farms, Krishna Vihar.
56. PW19 deposed that on 25.4.2007 he went to District Mortuary, Ghaziabad, U.P. as per direction of the senior officers with the authority letter of ACP. On reaching there he collected one box containing viscera duly sealed with the seal of District Mortuary Ghaziabad, MDS SC No.183/13 State vs. Anil Kumar & Ors. Page 46 of 75 alongwith sample seal and handed over the same to Duty Officer SI Dhanvir. As long as the box containing viscera remained in his custody it was intact and was not tampered with.
57. PW16 deposed about the arrest of accused Anil and his wife Anju vide arrest memo and personal search memo EX.PW16/1 and EX.PW16/2. He also deposed that accused Prem Pal was interrogated and he made disclosure statement EX.PW16/3 and the accused persons pointed out the place of occurrence vide pointing out memo EX.PW15/4.
58. PW3 deposed that accused Anil, present in the court was working with him as a labour. He got activated his mobile phone Nokia.
59. PW4 deposed that accused Anil present in the court was his nephew. He was an agriculturist. On 10.2.2007 accused Anil came to his native place and handed over one mobile phone make Nokia 3610. On 14.2.2007 the said phone was got activated by him from Hutch by buying a new SIM card. On 26.2.2007 police came to his house and said phone was taken into possession vide seizure Ex PW 4/1.
SC No.183/13 State vs. Anil Kumar & Ors. Page 47 of 7560. PW5 deposed that on 26.2.2007 police party came to his village with accused Anil and Prem Pal in their custody. The police brought one Narender to his village and seized one mobile phone. He admitted that Bhoop Singh uncle of accused Anil had produced one mobile phone to police and that was taken to the possession vide Ex PW 4/1. He also admitted his signature on seizure memo Ex. PW 5/1.
61. PW6 deposed that an application Ex PW 6/2 was filed before him for recording of statement of a witness u/s 164 of the Code and accordingly he recorded statement of witnesses, Ex PW6/1 on 28.03.2007. On 10.4.2007 Insp. Satish Kumar produced complainant _x__ before him with case property. In the TIP proceedings Ex PW 6/A which were signed by him at point A and B, complainant identified the case property correctly.
62. PW8 deposed that he was registered owner of TSR number DL1RH 1033. On 28.02.2007, he received a notice, EX PW 8/1 u/s 133 M.V Act from the police. On 7.2.2007, his TSR was with Dharmender S/o Sh. Som Dutt from 2 PM to 2 PM night. He had produced his driver Dharmender before the police with Auto rikshaw which was seized by police vide memo Ex PW 8/2. Later on he got SC No.183/13 State vs. Anil Kumar & Ors. Page 48 of 75 TSR released on superdarinama vide superdarinama Ex PW 8/3 which was signed by him at point A.
63. PW12 resident of 5/173 Mandoli Extension, Delhi deposed that about two/three days prior to 23.02.2007, accused Anil along with his wife and one girl child in his lap, came to his house for getting his premises on rent and he had let out a room to him @ Rs. 600/- per month. He correctly identified both the accused in the court.
64. PW13 deposed that on 10.04.2007, he was posted as PS M.S Park. On that day MHCM handed over to sealed parcels (pulindas) duly sealed with the seal of VSP and SK to him. He brought the same in the court of Sh. G.N. Pandey Ld. MM for the purpose of judicial TIP. Subsequently said parcels were handed over to him by IO duly sealed with the seal of GNP and he deposited the same with MHCM.
65. PW20 deposed that on 11.02.2007 he was posted at PS M.S Park as duty officer. One _x__ came and lodged FIR No. 69/07 U/S 365 IPC. He proved carbon copy of FIR as EX PW2/A and computerised copy as EX PW20/A. SC No.183/13 State vs. Anil Kumar & Ors. Page 49 of 75
66. PW21 deposed that on 27.02.2007, he had joined the investigation with IO Inspector Satish. Accused Anil and Prem Pal were taken out of the lockup. Both the accused went to house no 173, Gali no. 5, Mandoli Extn, Nand Nagri in which accused Anil was residing as tenant. They went to the first floor of the house and from there one pent of brown color, one light pink color check shirt and one underwear sky blue color were got recovered by accused Anil and he also disclosed that on 07.02.2007 he was wearing the said clothes. Said clothes were sealed in a parcel with the seal of SK and taken into possession vide memo Ex. PW21/A. He identified the above clothes as EX P14, P15, P16, respectively, in the court.
67. PW24 deposed that on 03.05.2007, he was posted as SI drafts man, North East District, Delhi. On that day he was summoned by Inspector Satish Sharma to reach at PS M.S Park. He arrived there and visited the spot with him and with SI V.S Punia. He inspected the spot at Krishna Vihar Industrial Area, Phase II, Loni, District Ghaziabad, U.P and prepared Scaled Site Plan Ex. PW24/A, after taking measurements.
68. PW25 deposed that on 29.04.2007, he was posted at PS M.S Park. On that date, he took five sealed SC No.183/13 State vs. Anil Kumar & Ors. Page 50 of 75 parcels from MHCM with sample seal of GTB Hospital and one viscera box and deposited the same at CFSL office Kolkata.
69. PW26 deposed that on 08.02.2007 he was posted at PS M.S Park. He proved DD 52B dated 08.02.2007 as Ex. PW26/A.
70. PW27 deposed that on 08.02.2007, he was posted as SI at PS M.S Park. On that day DD no. 52B, EX PW26/A regarding missing of ___z____ wife of the complainant was marked to him. He flashed wireless message regarding missing of ___z____ and also sent a form to missing person squad.
The facts which stands proved by the Prosecution Evidence
71. The following facts stand proved by the above narrated prosecution evidence:
(a) That the prosecutrix was a beautician as deposed by PW2, PW14 and admitted by accused Anju.
(b) That accused Anju was learning art of beautician from the prosecutrix as deposed by PW14, daughter of the deceased prosecutrix.
(c) That the prosecutrix had accompanied with accused SC No.183/13 State vs. Anil Kumar & Ors. Page 51 of 75 Anju on the basis of misrepresentation that she had to apply Mehendi at House No. 28 A, West Jyoti Nagar, Delhi, as deposed by PW2.
(d) That accused Anju made a telephonic call from the STD Booth situated in front of the Shop of the deceased to her husband and she informed her husband that she was bringing the deceased with her as corroborated by CDR Ex. PW28/A at point A and B.
(e) That accused Anju made the prosecutrix to eat something poisonous or obnoxious substance may be Alloo Ki Tikki which was mixed with poisonous substance as may be inferred from the testimony of TSR driver PW10 as he saw her vomiting.
(f) That accused Anju made telephonic call to her Husband accused Anil from the mobile phone of the deceased on reaching GTB Hospital as proved by CDR Ex.
PW28/A at point B. This has further proved that the deceased was with accused Anju.
(g) That accused Anil and Prem Pal arrived at the GTB Hospital as corroborated by TSR driver PW10. PW10 even stated that he knew accused Prem Pal by face prior to the date of incident.
(h) That the deceased was last seen in the company of Anju by daughter of the deceased PW14 in the evening of 07.02.2007 and thereafter the deceased was seen in the SC No.183/13 State vs. Anil Kumar & Ors. Page 52 of 75 company of all the accused firstly at GTB Hospital and then at the place of murder of the deceased by TSR driver PW10.
(i) That accused Prem Pal hired a TSR No. DL1RH 1033 driven by PW10 from gate no.7 of the GTB Hospital and TSR driver took all of them including the deceased from the GTB Hospital.
(j) That accused Anil, Prem Pal, Anju and the deceased prosecutrix by that TSR travelled and PW10 dropped all of them in area of Krishna Vihar Phase II, surrounded by factories arrived at the GTB Hospital, i.e. the place of recovery of dead body.
(k) That a dead body of a lady having similar descriptions as that of the deceased prosecutrix was recovered by the police of PS Loni on 08.02.2007 as deposed by PW30 and PW17.
(l) That a panchnama of dead body of a lady and articles found on her dead body was prepared and the articles were preserved in Malkhana of PS Loni as deposed by PW30.
(m) That the accused persons led the police party to the place from where a dead body of a lady having similar descriptions as that of the deceased prosecutrix was recovered by the police of PS Loni and at their instance Pointing Out Memo was prepared as deposed by PW28.
SC No.183/13 State vs. Anil Kumar & Ors. Page 53 of 75(n) That PW2 husband of the deceased prosecutrix identified belongings of the deceased prosecutrix which were preserved by the police of PS Loni.
(o) That a Mobile Nokia phone Ex. P2 which was being used by the deceased prosecutrix soon before her death was recovered from PW9 and SIM of telephone No. 9759614171 was got activated by him.
(p) That on 22.02.2007 accused Anju and Anil were arrested. They were interrogated and they made disclosure statements on 23.02.2007.
(q) That on 23.02.2007 accused Anju led the police party to her rented house No. 173 and got recovered broken yellow coloured chain and one yellow coloured ring Ex. P-12 and P-13 which belonged to the deceased.
(r) That two gold bangles Ex. P3 and one gold ring Ex. P4 which were sold to PW11 by one Prem Pal and Anil were got recovered from PW11 by these two accused persons.
(t) That in a TIP of case property, Husband of the deceased prosecutrix, PW2, correctly identified belongings of the deceased prosecutrix.
FINDINGS ON CHARGES
72. Let us now see whether the prosecution could prove all the alleged offences and against all the three SC No.183/13 State vs. Anil Kumar & Ors. Page 54 of 75 accused persons. Let us deal evidence on record, offence wise.
Criminal Conspiracy
73. The prosecution evidence on record and particularly discussed herein above has established that all the three accused persons hatched criminal conspiracy and in order to achieve the object of conspiracy accused Anju persuaded the deceased to accompany with her under the pretext that she had to apply mehndi in a party but instead, the accused Anju took her to other place and made her to eat aloo ki tikki containing poisonous and obnoxious substances and when she became ill, accused Anju took her to GTB hospital on the pretext to get her treated in the hospital. Instead of providing treatment to the accused, accused Anju called her husband Anil Kumar by making telephone call by the mobile of the deceased. Accused Anil Kumar and Prem Pal arrived there. Accused Prem Pal who was previously known to the auto driver by face, hired her TSR and all of them took the deceased to the place of incident and committed the crime. The offence of criminal conspiracy stands proved against all the accused as all the ingredients of criminal conspiracy have been established in the present case by above narrated evidence.
SC No.183/13 State vs. Anil Kumar & Ors. Page 55 of 75Abduction with an Intent to Secretly and Wrongfully Confine the Deceased for Murder
74. The testimonies of various prosecution witnesses and particularly testimonies of PW10 and PW14 have established that deceased ___z____ was abducted by accused Anju in criminal conspiracy with other accused Anil Kumar and Prem Pal with the object to rob her valuables. She confined and secretly taken to the place from where her dead body was recovered and while extorting the valuables of the deceased she was murdered by strangulation. Doctor PW31, who conducted postmortem confirmed that cause of death was asphyxia. Thus, offences of abduction with intent to secretly and wrongfully confining of the deceased with the object of murder stand proved against all the three accused persons.
Robbery of valuable of the deceased
75. The prosecution evidence on record has also proved that all the three accused persons, robbed mobile Nokia 3610 EXP1, another mobile as a EXP2, Gold chain, Gold Ring, Gold Bangles EXP3 to P5 from the possession of the deceased ___z____.
SC No.183/13 State vs. Anil Kumar & Ors. Page 56 of 75Murder of ___z____
76. PW31 has proved that cause of death of ___z____ was asphyxia. Thus, it has supported the circumstantial evidence which has proved that the deceased was killed by strangulation by the accused person. All the ingredients of murder as provided u/s 300 IPC have been proved by the prosecution evidence. As the deceased ___z____ was killed to achieve the object of criminal conspiracy which was hatched by all the accused person, therefore, all the three accused person are responsible for the murder of deceased ___z____.
Causing disappearance of evidence
77. On scrutinizing the prosecution evidence, I do not find any evidence to show that all or any of the accused caused evidence of offence to disappear with the intention of screening them for legal punishment. Therefore, it is held that prosecution could not prove its case for the offence of causing evidence of offence to disappear.
Causing Hurt to Prosecutrix by means of Poison,etc.
78. The testimony of PW14, referred to herein above has established that accused Anju took the deceased with SC No.183/13 State vs. Anil Kumar & Ors. Page 57 of 75 her. She made the deceased to eat Allo Ki Tikki containing sedative or poisonous substance and when the deceased started omitting, she took her to GTB Hospital but instead of providing her treatment in the Hospital, she was taken in that condition to the place of murder. Auto Rickshaw driver PW10 saw the deceased that she was not well and she was omitting. The evidence of other witnesses has proved as to how all the accused, in furtherance of their common intention and in order to achieve the illegal object pursuant to their criminal conspiracy, committed robbery and murder, etc. of the deceased. Thus evidence on record has proved all the necessary ingredients of offence of causing hurt by poison or sedative substance.
Rape on the deceased ___z____
79. Although it has been mentioned in the disclosure statements of the accused persons that accused Prem Pal committed rape on the deceased before killing her, yet that portions of disclosure statements are not admissible in evidence. There is no other prosecution evidence on that aspect. In the postmortem report EXP30/A, there is no confirmation of committing sexual intercourse with the deceased before killing her. Therefore, it is held that prosecution evidence could not prove that accused Prem Pal committed rape on deceased ___z____ SC No.183/13 State vs. Anil Kumar & Ors. Page 58 of 75 before killing her.
Reasons of Conclusions
80. After considering the arguments of Ld. Addl. Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has successfully proved its case against the accused Anil Kumar, Anju @ Sonia @ Baby and Prem Pal beyond any reasonable suspicion and shadow of doubt that they committed offence of criminal conspiracy, offences of abduction with an intent to secretly and wrongfully confine a person with the intention to kill her, offence of causing hurt by poisonous substance, offence of robbery and offence of murder. The reasons which support my conclusion are firstly that the prosecution evidence on record and particularly discussed herein above has proved all the ingredients which are necessary for proving the above mentioned offences.
81. Secondly, the inconsistencies found in the testimonies of daughter and husband of the deceased and other witnesses are not material. Such inconsistencies are likely to happen in every case and are liable to be ignored SC No.183/13 State vs. Anil Kumar & Ors. Page 59 of 75 in view of principles of law laid down in case of State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held by Delhi High Court that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."SC No.183/13 State vs. Anil Kumar & Ors. Page 60 of 75
82. Thirdly, my attention goes to a case of Mohinder Singh and Dhanpal v. State, (Delhi), 1992(2) R.C.R. (Criminal) 381, wherein Delhi High Court observed:
"8. The Supreme Court in Ramkishan Mithanlal Sharma and others v. State of Bombay, AIR 1955 SC 104, clearly held that under Section 27 of the Evidence Act what is allowed to be proved is the information or such part thereof as relates distinctly to the fact thereby discovered. The information would consist of a statement made by the accused to the police officer and court would have to consider whether it relates distinctly to the fact thereby discovered and then allow the proof thereof only if that condition was satisfied.
9. Same principle was reiterated by the Supreme Court in Earabhadrappa v. State of Karnataka, 1983(1) R.C.R. (Criminal) 292 : AIR 1983 SC 446. It was held that for the applicability, namely, (1) the information must be such as has caused discovery of the fact; and (2) the information must relate distinctly to the fact discovered and under Section 27 only so much to the information as distinctly relates to the facts really thereby discovered is admissible and the word `fact' means some concrete or material fact to which the information directly relates."
83. My attention also goes to a case of Sunil Kumar v. State of Haryana,(P&H) 2008(1) R.C.R.(Criminal) 253, wherein P&H High Court observed that:
"8. To lend assurance to the case against the appellants, evidence of recovery can be taken into consideration. The appellants, however, have tried to say that the recovery is doubtful as it is supported by evidence given by police witnesses alone and that no independent witness was joined. The mere fact that independent witnesses were not joined would not render the recovery to be doubtful.SC No.183/13 State vs. Anil Kumar & Ors. Page 61 of 75
Otherwise, nothing has been submitted before me to say or to urge that police has any reason or motive to falsely implicate the appellants. No such allegation is made against the complainant as to why he would name them wrongly and identify them before the Court to urge that they had come and robbed him. One of the items recovered is a car, which was allegedly robbed from the Farm House of the complainant. Though this car was recovered after exchange of fire between the police and some persons, who had managed to run away but the same is being attributed to the appellants. The appellants have faced separate prosecution for the allegation regarding this exchange of fire, for which they have been separately convicted and against which they have filed separate appeal. The other items allegedly robbed are microwave, which was recovered from appellant, Sunil. A pistol and two live cartridges were recovered from appellant Surender. A sum of Rs. 1,000/- was recovered on the disclosure statement made by appellant Sombir. A sum of Rs. 1500/- has been recovered at the instance of Sunil and another sum of Rs. 1000/- at the instance of Krishan. One mobile phone was also recovered on the disclosure statement made by Joginder. Mere fact that these recoveries are not in the presence of independent witnesses is not in itself enough to cast doubt on the recoveries. These recoveries have been effected on the disclosure statements made by the appellants. The recoveries pursuant to such disclosures are admissible in evidence. A fact can also be taken note of that generally an individual is always reluctant to join as a witness in police enquiry or investigation, especially so when the case happens to be of the nature in hand. In their statements made by the police officials, it is disclosed that they had made efforts to join the independent witnesses at the time of recoveries but none agreed to accompany the police. The recoveries, as such, can not be doubted on this aspect alone. Having given my thoughtful consideration to the entire evidence and record, I am of the view that the prosecution is able to prove its case beyond shadow of reasonable doubt. Nothing much has been stated against SC No.183/13 State vs. Anil Kumar & Ors. Page 62 of 75 the evidence of complainant except for the lack of identification on his part to correctly identify the appellants before the Court. This aspect has already been discussed above. Otherwise, there is no allegation standing against the complainant, for which he could have come to make false allegations against the appellants. I would, thus, up- hold the conviction of the appellants."
84. The principles of law laid down in Mohinder Singh and Dhanpal v. State, (Delhi) and Sunil Kumar v. State of Haryana,(P&H) are applicable in the present case. The testimonies of material witnesses particularly, daughter and husband of the deceased, witnesses of recoveries, have been corroborated by other witnesses. The recoveries of gold jewellery, mobile phones and other articles of the deceased, consequent upon the disclosure statements made by the accused persons are admissible in evidence and these recoveries and connect the three accused persons with the crime.
85. Fourthly, my attention also goes to a case of Izzazul v. State, (Delhi), 2007(4) R.C.R.(Criminal) 315, wherein the Delhi High Court Observed:
"7. The other ground taken by the Counsel for the appellant is that no public witness was associated by the police at the time of recoveries from the accused persons and the evidence against the accused persons in respect of recoveries was only of the police officials and therefore, SC No.183/13 State vs. Anil Kumar & Ors. Page 63 of 75 the recoveries could not be believed. In Tahir v. State (Delhi), AIR 1996 SC 3079 Supreme Court held that no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be based on the evidence of police officials, if found reliable, unless corroborated by some independent evidence. The Rule of prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found trustworthy and reliable, the conviction can be based on the testimony of the police officials.
8. The police officials cannot be presumed less or more credible than any other normal public witness. The credibility of each witness is tested in cross-examination.
Public witnesses who are related to the victims are normally treated as interested witnesses but it has been time and again held by Courts that relative witnesses could be credible and trustworthy. Similarly, police officials can also be credible and trustworthy as any other witness. The police officials do not suffer from any disability to give evidence and mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. The cross-examination of the police witnesses in this case shows that they were trustworthy witnesses and nothing incredible could be pointed out from their cross-examination."
86. The principles of law laid down in case of Izzazul v. State, (Delhi) (supra) also support the prosecution case. Even in the absence of witness from public at the time of recoveries of the robbed articles at the instance of accused, consequent upon the disclosure made by them SC No.183/13 State vs. Anil Kumar & Ors. Page 64 of 75 can not be doubted.
87. Fifthly, all the arguments of Ld. Defence Counsel discussed herein above in detail have been found as not convincing.
88. Sixthly, there is nothing in cross examination of prosecution witnesses which could create any reasonable suspicion and shadow of doubt that the above mentioned offences were not committed by all the three accused persons on the deceased ___z____ for achieving the object of criminal conspiracy hatched by all of them.
89. Seventhly, the prosecution evidence has achieved the standard of proof of proving its case against all the three accused, as held in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, SC No.183/13 State vs. Anil Kumar & Ors. Page 65 of 75 the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
90. Eightly, there is no evidence on record showing any motive or reason for the prosecution witnesses to depose against the accused persons particularly when all the accused persons neither alleged nor proved any hostility ill will or enmity against the family members of deceased ___z____ or police officials, who deposed in the present case against the accused persons.
91. Ninethly, my attention goes to a case Sanatan Naskar Vs. State of West Bengal, (2010) 8 SCC 249, wherein five golden principles to consider the case based on circumstantial evidence were laid down. It was held by the Apex court that:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(l) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra where the observations were made: [SCC p.807, para 19: SCC (Cri) p. 1047] '19..... Certainly, it is a primary principle that the accused SC No.183/13 State vs. Anil Kumar & Ors. Page 66 of 75 must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.' (emphasis in original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
92. In case of Sheesh Pal v. State, 2012 III AD (Delhi) 1, it was held that in a case based on circumstantial evidence, the circumstances from which an inference of guilt was sought to be drawn were to be cogently and firmly established. The circumstances so proved were required to conclusively point towards the guilt of the accused and it should form a chain so complete that there was no escape from the conclusion that the crime was committed by the accused and none else. It was to be considered within all human probability and not in a fanciful manner.
SC No.183/13 State vs. Anil Kumar & Ors. Page 67 of 7593. In case of Sarbir Singh Vs. State of Punjab, 1993 (1) Crimes 616, it was held by Apex Court that in cases depending on circumstantial evidence, it is true that the chain of events proved by the prosecution must show that within a human probability, the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motives suggested by the prosecution which induced the accused to follow a particular path.
94. Turning to the present case and on analyzing the evidence, keeping in view the principles of law laid down in cases Sanatan Naskar Vs. State of West Bengal (supra), Sarbir Singh Vs. State of Punjab (supra) and Sheesh Pal v. State (supra), I find that chain of circumstances and events are so well connected that all these indicate and point out towards the accused persons that in all human probabilities, these were the accused persons who committed the above mentioned offences on the deceased ___z____.
95. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime SC No.183/13 State vs. Anil Kumar & Ors. Page 68 of 75 must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396. Therefore, It is bounden duty of this court to hold these three accused persons guilty and convict them.
CONCLUSION
96. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has successfully proved its case against the accused Anil Kumar, Anju @ Sonia @ Baby and Prem Pal beyond any reasonable suspicion and shadow of doubt that they committed offence of criminal conspiracy punishable under Section 120B IPC, offences of abduction with an intent to secretly and wrongfully confine a person with the intention to kill her punishable under Sections 365 & 364 IPC, offence of causing hurt by poisonous substance punishable under Section 328 IPC, offence of robbery punishable under Section 392 IPC and offence of murder punishable under Section 302 IPC.
97. It is further held that the prosecution has failed to prove beyond any reasonable suspicion or shadow of doubt that accused Anil Kumar, Anju @ Sonia @ Baby and SC No.183/13 State vs. Anil Kumar & Ors. Page 69 of 75 Prem Pal committed offence of causing disappearance of evidence of offence with intention of screening them from legal punishment punishable under Section 201 IPC or the accused Prem Pal committed offence of rape on deceased ___z____ punishable under Section 376 IPC.
98. Resultantly, accused Prem Pal is acquitted for the offence of rape punishable under Section 376 IPC and all the accused persons Anil Kumar, Anju @ Sonia @ Baby and Prem Pal are also acquitted for the offence of causing disappearance of evidence punishable under Section 201 IPC and all the three accused Anil Kumar, Anju @ Sonia @ Baby and Prem Pal are held guilty and convicted for the offences punishable u/s 328/364/365/392/302/120-B IPC.
Announced in the Open Court Dated: 22.11.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.183/13 State vs. Anil Kumar & Ors. Page 70 of 75 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC NO. 183/13 FIR No. 69/07 PS M.S. Park U/S 364/365/392/328/302/120-B IPC State Versus Anil Kumar & Ors.
ORDER ON SENTENCE
30.11.2013
Present: Sh. R.K. Khandelwal, Ld. substitute Addl. P.P.
for the State.
All the three convict/accused Anil Kumar, Prem Pal and Anju @ Sonia are in J.C. Sh. Gaurav Vashisht, Advocate/Amicus Curiae for all the convict/accused.
Ld. Defence Counsel filed written submissions of accused Anil Kumar which were brought by him from jail. I have heard arguments on the quantum of sentence and perused file.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict Anju @ Sonia is a young lady having two minor daughters; she is a first offender; she had been on bail during the trial and she never misused the liberty of bail. It has been prayed that lenient view in sentence may be taken.
SC No.183/13 State vs. Anil Kumar & Ors. Page 71 of 753. It has been further argued on behalf of Ld. Defence Counsel that accused/convict Anil Kumar is a young man aged about 28 years; he had already spent 6 years in jail; and he is in the judicial custody since the day of his arrest. It has been prayed that lenient view in sentence may be taken.
4. It has also been argued on behalf of Ld. Defence Counsel that accused/convict Prem Pal is a young man aged about 32 years; he had already spent 6 years in jail; and he is in the judicial custody since the day of his arrest. It has been prayed that lenient view in sentence may be taken.
5. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that as offences punishable u/s 302/365/364/392/328/120-B IPC are of heinous nature, therefore, deterrent view in sentence be taken.
6. My attention goes to a case Ravindra Kumar Pal vs. Republic of India, AIR 2011 SC 1436, wherein the Apex Court observed whether the case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as litigating circumstances and conclude whether there was something uncommon about the SC No.183/13 State vs. Anil Kumar & Ors. Page 72 of 75 crime which renders the sentence of imprisonment for life inadequate and calls for death sentence.
7. My attention also goes to a case Subhash Ram Kumar Beena @ Vakil vs. State of Maharashtra, AIR 2003 SC 269, wherein the Apex Court observed that undoubtedly brutality is involved in every instance of murder but that brutality by itself will not bring it within the ambit of the rarest of the rare case for the purpose of the death penalty.
8. Keeping in view the facts and circumstances in which the accused persons committed the crime in the light of principles of law laid down in cases Ravindra Kumar Pal vs. Republic of India, (supra) and Subhash Ram Kumar Beena @ Vakil vs. State of Maharashtra, (supra), I am of the view that the present case does not fall in the category of rarest of the rare case.
9. On considering the arguments addressed by Ld. Addl. Public Prosecutor and Ld. Defence Counsel/Amicus Curiae for all the three accused, I am of the view that it would be just, fair and appropriate in the interest of justice, if deterrent view in sentence is taken.
10. Accordingly, all the three convict/accused Anil Kumar, Prem Pal and Anju @ Sonia are sentenced to undergo rigorous imprisonment for 10 years and each of them is further sentenced to pay a fine of Rs.10,000/- in SC No.183/13 State vs. Anil Kumar & Ors. Page 73 of 75 default simple imprisonment for 2 years for the offence punishable under sections 364 and 120-B IPC.
11. All the three convict/accused Anil Kumar, Prem Pal and Anju @ Sonia are further sentenced to undergo rigorous imprisonment for 5 years and each of them is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for one year for the offence punishable under sections 365 and 120-B IPC.
12. All the three convict/accused Anil Kumar, Prem Pal and Anju @ Sonia are further sentenced to undergo rigorous imprisonment for 7 years and each of them is further sentenced to pay a fine of Rs.7,000/- in default simple imprisonment for 1 year and 6 months for the offence punishable under sections 392 and 120-B IPC.
13. All the three convict/accused Anil Kumar, Prem Pal and Anju @ Sonia are further sentenced to undergo rigorous imprisonment for 5 years and each of them is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for 1 year and 6 months for the offence punishable under sections 328 and 120-B IPC.
14. All the three convict/accused Anil Kumar, Prem Pal and Anju @ Sonia are further sentenced to undergo imprisonment for life and each of them is further sentenced to pay a fine of Rs.20,000/- in default simple imprisonment for 3 years for the offence punishable under SC No.183/13 State vs. Anil Kumar & Ors. Page 74 of 75 sections 302 and 120-B IPC.
15. All the sentences will run concurrently.
16. It is further ordered that if convict/accused Anil Kumar, Prem Pal and Anju @ Sonia have undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr.P.C. As per judicial record, the accused Anil Kumar had been in JC since 22.02.2007 till date, accused Prem Pal had been in JC since 22.02.2007 till date, and accused Anju @ Sonia had been in JC since 22.02.2007 to 22.10.2008 & 22.11.2013 till date.
17. Out of the fine amount, and after expiration of the period of appeal, a sum of Rs.50,000/- will be payable to the complainant as compensation. Besides this compensation, he will also be entitled to get other compensation, if available to him under other laws.
18. All the three convict/accused Anil Kumar, Prem Pal and Anju @ Sonia be sent to imprisonment to serve the sentence.
19. A copy each of judgment and order on sentence is supplied to each of the convict/accused free of cost.
File be consigned to Record Room.
Announced in the Open Court
Dated:30.11.2013 (DR. T.R. NAVAL)
Additional Sessions Judge, (SFTC)
Karkardooma Courts, Delhi
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