Delhi District Court
(Judgment) State vs . Abhay Dewan & Ors. on 15 September, 2018
(Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012
PS: Maurya Enclave
IN THE COURT OF SHRI PANKAJ GUPTA:ADDL. SESSIONS JUDGE, FTC,
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No.52223/16
Unique Case ID: DLNW010007532012.
State
Vs
1. Abhay Dewan @ Gappy
S/o Sh. Govind Dewan
R/o C2/16, Sec.15, Rohini, Delhi.
2. Mahima Dewan W/o
Abhay Dewan @ Gappy
R/o C2/16, Sec.15, Rohini, Delhi.
3. Runeet Gulati
S/o Sh. Som Nath Gulati
R/o D41, Malka Ganj, Delhi.
4. Jatin
S/o Sh. Niranjan Lal
R/o P44, IInd Floor, Lajpat Nagar, Delhi
FIR No. 180/2012
Police Station : Maurya Enclave
Under Section : 302/201/364/120B IPC & 25/27/54/59 Arms Act.
Date of committal to Sessions Court : 02.11.2012
Date on which judgment reserved : 15.09.2018
Date on which judgment pronounced : 15.09.2018
Page no.1 of 168
(Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012
PS: Maurya Enclave
JUDGMENT
1. This is a case under sections 302/201/364/120B/34 of Indian Penal Code, 1860 (IPC).
CASE OF THE PROSECUTION
2. In the intervening night of 17.07.2012 and 18.07.2012 at about 10:30 pm, Shivam (the deceased) visited the house of Vishal Verma on his scooty. Later on, Runeet Gulati (the accused no.3) along with Abhay Dewan (the accused no. 1) who was in the white colour swift car bearing registration no. DL2CAN3335 met them at Malka Ganj Chowk. Accused no.3 told the deceased that he wanted to talk with him. At about 11:00 pm, the deceased dropped Vishal Verma at his house and left saying that he was going to meet the accused no.3. Thereafter, the accused no. 1 and 3 taken away the deceased with them.
3. In the night of 17.07.2012, once the deceased did not came back to the house by 11:00 pm, Deepak Kapoor (brother of the deceased) made a call from his mobile phone no.9871410509 on the mobile phone number of the deceased 8586807081 who told him that he would return within 15 minutes. Once, the deceased did not come back to his house, Deepak Kapoor along with his father and cousin brother started contacting the friends of the deceased to know his whereabouts. In that process, at about 11:30 pm, Vishal Verma received a call from Deepak Kapoor who inquired from him about the whereabouts of the deceased. At about 11:40 pm, Deepak Kapoor along with his father and cousin brother visited the house of Vishal Verma who told them about his meeting with the deceased and their meeting with the accused no. 3. Thereafter, they visited the house of the accused no.3 but he was not present at his house. However, they met mother of the accused no.3 who gave them the mobile phone of the accused no.3. However, on being contacted, the said mobile phone was found switched off. Consequently, they searched for the deceased at different places. Later on, Page no.2 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave Sanjeev Kapoor (father of the deceased) found the scooter of the deceased without key at Gurudwara Chowk and informed so to Deepak Kapoor. Since the deceased could not be found, hence, Sanjeev Kapoor lodged a missing complaint Ex. PW3/A at about 2.45 am at PS Sabji Mandi.
4. The accused no.1 and 3 on the way, asked the deceased about the money at his home. Once, he showed his reluctance, they inflicted injuries on his body with the paper cutter. The accused no. 1 fired a bullet on the deceased which hit on his abdomen. The accused no.1 and 3 along with the deceased reached at Sector 15 Rohini where the house of the accused no.1 was situated. There the accused no.1 asked his wife Mahima Dewan (the accused no.2) to hand over the key of the Accent Car registration no. DL4CAJ9666 and also had the telephonic conversation with her. Simultaneously, Abhay Dewan contacted Jatin (the accused no.4) who was at Faridabad that time. Thereafter, the accused no.1 and 2 went to Faridabad to pick the the accused no.4 in the said accent car. In the mean time, the accused no.3 along with the deceased remained outside the house of the accused no.1 in the Swift Car at Sector 15, Rohini Delhi and remained in constant touch with the accused no.1. After picking the accused no.4, the accused no.1 and 2 along with him came back to Delhi. Thereafter, the accused no.2 along with the other accused visited the Apollo Pharmacy at Sector 9 Rohini Delhi and purchased four bandages and one suthol liquid. Since by that time the deceased was alive, the accused no.4 fired a bullet on his temple region of the deceased. Due to combined effect of two bullet injuries, he died. Subsequently, all the accused along with the deceased in the swift car visited at Ekta Camp Jhuggi AU Block, Near VIPS College, Delhi where they firstly threw the dead body of the deceased and then set the same on fire.
5. During the course of the investigation the accused no.1,3 and 4 were arrested on 25.07.2012 and the accused no.2 was arrested on 26.07.2012. Thereafter, they made their disclosure statements and got recovered the articles.
Page no.3 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave CHARGES
6. Charges under section 120B IPC and section 364/ 120B IPC, section 302/ 120B IPC and section 201/ 120B IPC were settled against all the accused. Charge under section 25/27 Arms Act was also settled against the accused no.1. Charge under section 27 Arms Act was also settled against the accused no.4. Charge un der section 411/34 IPC was also settled against accused no.1 and 4 qua the mobile phone of the deceased. Charge under section 411 IPC is also settled against the accused no.3 qua one purse containing the driving licence and belongings of the deceased, key of the scooter. All the accused pleaded not guilty and claimed trial.
EVIDENCE
7. In order to discharge the onus, the prosecution has examined 52 witnesses.
PUBLIC WITNESSES
8. PW19 Vishal Verma deposed that he knew Shivam (the deceased) for the last one year as they used to meet at tuition. He knew the accused no.3 since his childhood. On 17.07.2012, at about 10:30 pm, the deceased came at his house on his scooter and he along with him visited Metro Station Pul Bangash to hand over the camera to the brother of their friend. Thereafter, they reached at Vijay Nagar where they ate sandwich. Thereafter, they reached at Malka Ganj where at Gurud wara Chowk, the accused no.3 met them in the swift car and the accused no.1 whose name he came to know later on, was sitting in that car. Accused no.1 and 3 were taking maggie inside the said car. Accused no.3 told the deceased that he wanted to talk with him but insisted that he would talk with him in his absence.
Page no.4 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave Thereafter, the deceased dropped him at his house at 11:00 pm and then left say ing that he was going to meet the accused no.3. At about 11:30pm, he received a call of Deepak Kapoor (PW16) who asked him about the whereabout of the de ceased. He informed that the deceased had left him at his house. At about 11:40pm, PW16, PW17 and PW18 came to his house and inquired about the de ceased informed them that the deceased had left him saying that he was going to meet the accused no.3 as he wanted to talk to him. Thereafter, they went to the house of the accused no.3 but he was not at his house and his mother gave the mobile phone number of the accused no.3 to PW16 who made a call but the phone was switched off. Thereafter, he along with PW16 searched for the de ceased and came to know that the scooter of the deceased without key was found at Gurudwara Chowk. On 18.07.2012, at about 34:00pm, PW18 informed him that dead body of the deceased had been recovered. On 09.09.2012, PW49 came to his house and had shown him many documents with photographs and from one photograph, he identified that another person who was sitting in the swift car that night and that was the accused no.1. The said document was Ex.PW19/A. He also deposed that on 30.03.2013, he had been threatened to turn hostile and proved the complaint dated 31.03.2013 Ex.PW19/B to that effect. He identified the swift car Ex.P2.
9. PW16 Deepak Kapoor (brother of the deceased) deposed that on 17.07.2012, at about 10:30 pm, the deceased went away on his two wheeler scooter in a usual manner but did not return to home by 11:00pm. At about 11 11:15pm, he made a call from his mobile phone no.9871410509 on the mobile phone number of the deceased 8586807081 who told him that he would return within 15 minutes. They awaited up to 11:30pm and then, he again made a call on the mobile phone of the deceased but it was switched off. Thereafter, he made calls to his friends including PW19 who informed that the deceased was with him till 11:00pm; the accused no.3 met them on the way; and thereafter, the deceased went away with accused no.3. Thereafter, he along with PW18 went to the house Page no.5 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave of PW19 and from there, they along with PW19 went to the house of the accused no.3. However, the accused no.3 was not present at his house and his mother gave his mobile phone number to them. He made the call on the mobile phone of the accused no.3 many times but it was found switched off. Thereafter, he along with PW19 searched for the deceased in the area of Vijay Nagar, Ashok Vihar, Model Town and NSP. When they reached Vijay Vihar, PW18 called him and informed that the scooter of the deceased was found at Malka Ganj Gurudwara without key. Thereafter, they searched for the deceased in many areas but without any success. At about 2:45am, PW17 and PW18 visited PS Sabji Mandi for lodging the missing report and they had suspicion on the accused no.3. At about 34:00 pm on 18.07.2012 they came to know that a dead body was found at Jahangirpuri. Ac cordingly, PW18 and some relatives visited Jahangirpuri where he identified the dead body as that of the deceased. He identified the accused no.3.
10. PW17 Shruti Kant Kapoor (cousin brother of the deceased) deposed on the line of PW16. He proved his statement about the identification of the dead body Ex.PW17/A and taking over of the dead body of the deceased after postmortem Ex.PW17/B. He also deposed that on 30.07.2012, he along with PW18 visited PS Maurya Enclave and handed over the purchased bill of the mobile phone of the de ceased which was seized vide seizure memo Ex.PW17/C and proved the receipt Ex.PW17/D.
11. PW18 Sanjeev Kapoor (father of the deceased) deposed on the similar lines as deposed by PW16 and PW17. He also deposed that at about 7:30am, on 18.07.2012, the accused no.3 came at PS Sabji Mandi and was interrogated. At about 3:00 pm, the police PS Sabji Mandi informed him about recovery of a dead body and called them to identify the same. He identified the dead body as that of the deceased vide memo Ex.PW18/A. He relied upon Ex.PW17/B, Ex.PW17/C and Ex.PW17/D. He also deposed that on 15.10.2012, he identified the purse of the deceased and key of the scooter in TIP Proceedings Ex.P3. He also deposed Page no.6 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave that he had Rs. 25 lacs at his house being the part of the sale transaction. He iden tified the accused no.3 in the court.
12. PW23 Indal made a statement to the police that on 18.07.2012, at about 3:454:00 am, he saw a white colour swift car being driven by one boy and one woman was sitting on the seat adjacent to the driver seat and two boys were sit ting at the back seat. That woman made enquiries about the police from him. Thereafter, one of the boys threw the dead body from the said car and set the same on fire and then they all went away from there. He also stated that he could identify the said woman from her voice. However, in his testimony before court, PW23 has not supported the case of the prosecution.
13. PW36 Munshi Singh Vadav deposed that on 18.07.2012, at about 4.00 am, one boy with the name of Inder came to his jhuggi along with other persons and informed that one dead body had been thrown from one car by someone near the gate of VIPS College. He went there and saw a dead body of a young male whose hands were found tied with the help of garam patti (crap bandage) and were above the head. His eyes and mouth were also covered with the white tape. The deceased had the jeans pant and Tshirt (half sleeves) on his body. He in formed the police from his mobile phone number 9990787947. Police came at the spot and recorded his statement.
14. PW24 Praveen Juneja deposed that he was running the mobile phone and the accessories shop under the name and style of "Cariano Next". On 09.09.2012, PW49 along with PW46 met him. He told them that he had sold the mobile phone make Samsung Wave Model no. 525 to Shivam vide bill no. 3133 dated 23.06.2011 for Rs. 6,700/. He relied upon the bill Ex. PW17/D. Page no.7 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
15. PW14 Govind Dewan (father of the accused no.1) deposed that he was the owner of Hyundai Accent car bearing no. DL4CAJ9666 (hereinafter referred to as the "Accent car") and got it released on superdari vide superdarinama Ex. PW14/A. He proved the photographs of the Accent car Ex. PW14/B1 to Ex. PW14/B4.
16. PW33 Vijender Kumar (RTO Clerk) deposed that as per Transport Depart ment Record, the Maruti Swift car no. DL2CAN3335 (hereinafter referred to as the "swift car") was registered in the name of Ajay Kumar Taneja (PW15) and proved the certified copy of the detail of the registration of the swift car Ex.PW33/A.
17. PW15 Ajay Kumar Taneja (owner of the swift car) deposed that he was suf fering from the kidney disease and used to visit the Saroj Hospital twice a week for dialysis. For the said purpose, his son Gautam Tanjeja (PW28) used to borrow the car of the accused no.1. On 15.03.2011, he purchased the swift car bearing no. DL2CAN3335.
18. PW28 Gautam Tanjeja (son of PW15) deposed that in the month Novem ber/December 2011, the accused no. 1 had got arranged a loan of Rs. 2 lacs for him. For documentation, the accused no. 1 had obtained his signatures on sale let ter of the swift car. He had given such documents to the accused no. 1 as he had received cash amount under the said loan from him. In April 2012, he had cleared the entire loan liability along with interest. On 26.05.2012, the accused no. 1 had come to his house and took the swift car on the pretext that his car had been sent for service and told that he would return the said car within twothree days. Ac cordingly, they had given their car. Thereafter, the accused no. 1 did not return the swift car despite several requests on the pretext that he (PW28) had not cleared the entire interest liability of said loan. The accused no. 1 had even Page no.8 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave stopped picking his phone calls. He also sent the messages through mobile of his mother but there was no response from the accused no. 1. But the accused no. 1 responded to one message by claiming that entire loan liability be cleared first. The accused no. 1 never returned their car. Later, PW15 and he learnt that their car had been seized by the police. Later, PW15 got it released on superdari. PW28 identified one back car seat cover Ex P7, two head rest covers Ex.P6 and three window jaali (shades) Ex. P5.
19. PW45 Amit Bhatia (Project Incharge with Hindustan Construction Com pany, a concessionaire of Toll Plaza of Badar PurFaridabad Toll way) deposed that as per their record, the accent car bearing registration no. DL4CAJ9666 crossed through Lane no. 13 of Toll Plaza at Sarai (Faridabad) on 18.07.2012 from Delhi to Faridabad at 1:29:22 am and returned Faridabad to Delhi from same Toll Plaza through Lane no. 6 on 18.07.2012 at around 1:57:23 am. He relied upon the mail Mark PW45/A & Mark PW45/B; and printout of system generated reports Mark PW45/C and Mark PW45/D respectively.
20. PW40 Varun Kumar deposed that in the intervening night of 17.07.2012 & 18.07.2012, he was working as the Pharmacist at Apollo Pharmacy, A16, Sector 9, Rohini, Delhi and the accused no. 2 had come at about 2.43 am and had pur chased one liquid Suthol and four bandages. The accused no. 2 was looking to be in hurry and was also looking outside the said outlet. She had paid Rs. 50/ for such articles.
21. PW40 also deposed that on 07.09.2012, PW49 came and demanded CD re garding CCTV footage from PW38. PW38 had given CCTV footage which was played there. He had also seen the said footage and identified the accused no. 2 in such footage claiming that she was the one who had purchased four bandages and one Suthol spray from the said pharmacy in the night intervening 17.07.2012 & Page no.9 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave 18.07.2012. PW40 also deposed that he was also shown dossier of the accused no. 2 and verified that the CCTV footage contained image of the accused no.2. CD containing such footage was taken into possession vide seizure memo Ex. PW38/A. He proved the CD Ex. P11.
22. PW40 also deposed that PW49 took into possession attendance record and sale invoice through seizure memo Ex. PW40/A. PW40 proved copy of the pur chase bill Ex. PW40/C and copy of the attendance register Ex. PW40/B. As per the attendance register, PW40 was on duty on the relevant intervening night at the said pharmacy.
23. PW38 Sunder Singh (Senior Supervisor, Apollo Pharmacy) deposed that the police met him and asked him for CCTV footage of the night of incident.
24. PW39 K.K. Jha (Manager Information Technology, Apollo Pharmacy) de posed that on the request of PW49, on 07.09.2012 he provided compact disc of the CCTV footage of the intervening night of 17.07.2012 & 18.07.2012. Requisite footage as authentically retrieved from the hard disc of the said Pharmacy was put in compact disc. Thereafter, on 16.10.2012, he sent certificate under Section 65B of Indian Evidence Act along with covering letter to PW49. He proved the certifi cate as Ex.PW39/A and the covering letter as Ex.PW39/B. POLICE WITNESSES
25. PW3 HC Bhim Singh proved copy of DD 8A dated 18.07.2012 Ex. PW3/A regarding missing of the deceased and deposed that he handed over the same to PW31 SI Somvir Singh for investigation.
Page no.10 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
26. PW31 SI Somvir Singh deposed that on receipt of DD no. 8A, he tried to contact the deceased on his mobile number 8586807081 but he could not connect him as there was continuous message that the mobile was switched off. Hence, he flashed wireless message through ZIP Net.
27. PW8 Ct. Ravinder deposed that in the intervening night of 17.07.2012 & 18.07.2012, he received a call from mobile number 9990787947 that "VIP College ke samne Haider Pur Water Plant Ekta Camp Jhuggi ke pass AE Block Pitam Pura ek dead body padi hui hai". He forwarded the said message for circulation. He proved copy of PCR form Ex. PW8/A.
28. PW5 SI Nafe Singh deposed that in the intervening night of 17.07.2012 & 18.07.2012, at about 4:27 am, he received the wireless message from Control Room that a dead body was lying at Ekta Camp Jhuggi AE Block, Near VIPS Col lege; and he along with Ct. Ajit and Ct. Samsher reached the spot and found dead body of a young boy. He proved copy of the relevant entry Ex. PW5/A.
29. PW9 HC Rishipal proved DD no.6A Ex. PW9/A regarding a dead body lying near VIPS College, Haider Pur Jhuggi Water Tank, Ekta Camp, AU Block.
30. PW10 W/HC Anita deposed that on 18.07.2012, PW42 handed over her DD no. 6A bearing endorsement of PW49 for registration of case and she made DD no. 9A Ex. PW10/A. On the basis of the rukka, she got recorded FIR and proved copy of FIR Ex. PW10/B.
31. PW12 Ct. Satish deposed that he delivered the copy of FIR to concerned MM, DCP NorthWest, Joint CP/Northern Range.
Page no.11 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
32. PW42 SI Satya Dev deposed that on receipt of DD no. 6A, he along with Ct. Sandeep (PW47) reached at the spot and found body of a young male lying wear ing jeans pant and Tshirt of blue & green colour. PW49 along with staff also came at the spot. Both hands of the dead male were found tied behind its back with the crape bandage and his mouth and eyes were found wrapped with the doctor tape. The body and clothes of the deceased were in semiburnt condition. One plastic bottle in semiburnt condition was also found lying and some smell like petrol was coming from the said bottle. One lid was found lying near the dead body on which 'Kinley' was engraved. There were injuries on the dead body and one punctured wound was found on his stomach.
33. PW42 also deposed that on the call of PW49, the Crime Team reached at the spot and inspected the spot and took the photographs Ex.PW30/A1 to A10. PW49 lifted the pieces of burnt clothes of the deceased, one partly crape bandage (garam patti) and white doctor tape stained with blood and hair which was used for tying the mouth and eyes of deceased and sealed the same. Half burnt plastic bottle along with its lid, bloodstained concrete from near the head of the deceased and the blood which had come out when the tape was removed from the eyes and mouth of deceased and burnt concrete from near the body of deceased were lifted and sealed. Earth control near the body of deceased was also lifted from the spot and sealed. PW49 gave serial number 1 to 7 to the said pullandas and seized them vide seizure memo Ex. PW42/A. Three coins of Rs. 2/ each were found lying near the dead body and were sealed and seized vide seizure memo Ex. PW42/B. Dead body was shifted to BJRM hospital mortuary in a tempo through PW47. PW49 pre pared the rukka Ex. PW49/A and handed over the same to him for registration of the FIR. PW49 made inquiries regarding identification of the dead body from the public persons. PCR staff was saying that one boy had seen the persons while throwing the body there, who had come in a car but the boy could not be found. He identified Ex.P14 to Ex.P20.
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FIR No. 180/2012PS: Maurya Enclave
34. PW47 Ct. Sandeep deposed on the line of PW42 from reaching the spot along with PW42 and seizure of the articles from there. He also deposed that he took the dead body of the deceased to BJRM Hospital where family members of the deceased came on the same day and identified the dead body and he informed PW49 accordingly. He also deposed that on 19.07.2012, on direction of PW49, he brought the body to BSA Hospital where relatives of the deceased identified the dead body of the deceased and postmortem was got conducted. After postmortem the dead body was handed over to the family members of the deceased. The con cerned doctor of BSA Hospital handed over some parcels which were seized vide five memos Ex.P47/A1 to Ex.P47/A5. PW47 identified plastic bottle and cap Ex. P15, burnt pieces of cloth Ex. P16 (collectively), partially burnt crape bandage Ex. P17 (collectively), burnt concrete Ex. P18, earth control concrete Ex. P19, three coins of Rs. 2/ each Ex. P20 (collectively).
35. PW11 HC Madan Lal deposed that on 18.07.2012, 19.07.2012, 26.07.2012, 27.07.2012 and 22.08.2012, various exhibits were deposited in Malkhana vide rel evant entries in the register no.19 Ex.PW11/A to Ex.PW11/F. On 22.08.2012, PW21 HC Vinod Kumar had taken one sealed pullanda containing bloodstained paper cutter from him vide RC no. 70/21 to BSA Hospital for subsequent opinion. After depositing the sealed pullanda, PW21 handed over the receipt to him and he made entry to this effect in the register no. 19 Ex. PW11/D. He proved copy of RC Ex. PW11/E and copy of receipt Ex. PW11/F.
36. PW21 HC Vinod Kumar also deposed on the line of PW11. He also de posed that on 28.08.2012, he went to Mortuary, BSA Hospital and obtained subse quent opinion and sealed pullanda containing weapon of offence and deposited the sealed pullanda in the malkhana and handed over the subsequent opinion to PW49.
Page no.13 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
37. PW13 Angad Singh deposed that on 05.09.2012, he handed over one sealed plastic box and 05 pullandas to PW22 for depositing with FSL Rohini Delhi vide entry at point B of Ex.PW11/A. That day, he also handed over 7 sealed pullandas with seal of BSA hospital and 17 sealed pullandas with seal of "AS" again to PW22 vide entry at point D of Ex.PW11/A for depositing with FSL. He proved the road certificate Ex.PW13/A and Ex.PW13/C and receipts Ex.PW13/B and Ex.PW 13/D to that effect. The exhibits were not tempered with by any one till it re mained in his possession. He also proved copy of the entry at serial no. 534/12 in Register no. 19 Ex. PW13/E regarding deposite of one sealed pullanda in the malkhana by PW49 on 07.09.2012. PW22 corroborates the testimony of PW13 to this effect and deposed that on 05.09.2012, he deposited the exhibits vide two RC Ex.PW22/A and Ex.PW22/B with FSL and submitted the receipts of acknowledg ment Ex.PW22/C and Ex.PW22/D with MHC(M).
38. PW26 Ct. Surender deposed that on 27.09.2012, he took three sealed pul landas from PW13 vide RC No. 79/21 & 80/2 and deposited the same with FSL. He also relied upon copy of RC Ex. PW13/F and copy of receipt acknowledgment Ex. PW13/G. He also deposed that on 04.01.2013, took one sealed pullanda from PW13 vide RC No. 1/21/13 and deposited the same with FSL. He relied upon copy of RC Ex. PW13/L and copy of receipt acknowledgment Ex. PW13/M.
39. PW34 Ct. Sukhbir also deposed about deposit of exhibit with FSL and relied upon copy RC no. 104/21/12 Ex. PW13/J and copy of receipt acknowledgment Ex. PW13/K.
40. PW44 Ct. Mukesh also deposed about deposit of exhibits with FSL and re lied upon copy of RC no. 88/21/12 Ex. PW44/A (also Ex. PW13/H) and copy of acknowledgment Ex. PW44/B (also Ex. PW13/I).
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FIR No. 180/2012PS: Maurya Enclave
41. PW29 SI Ramesh Chand proved the crime team report Ex. PW29/A.
42. PW30 HC Sudhir proved the photographs Ex. PW30/A1 to A10 and nega tives strip Ex. PW30/A11.
43. PW4 SI Manohar Lal proved the site plan of the spot where the dead body of the deceased was found i.e. Ex. PW4/A.
44. PW25 HC Manaj Raghav deposed that on 25.07.2012, he joined the inves tigation along with PW49 and other police officials. PW49 arrested the accused no. 3 vide arrest memo Ex. PW25/A. PW9 took his personal search and recovered one visiting card, three passport size photograph of the accused no. 1 and Rs. 100 and prepared his personal search memo Ex. PW25/B. One mobile phone make Sam sung of silver color (dual sim) was also recovered from the personal search of the accused no. 3 which was seized vide seizure memo Ex. PW25/C. Thereafter, PW49 arrested the accused no. 1 vide arrest memo Ex. PW25/D. PW49 also took his per sonal search and recovered one voter ID card, one credit card of HDFC Bank, visit ing card casino Nepal and one metro card and cash Rs. 1000/ and one mobile phone make Nokia E63. He proved the personal search memo to this effect Ex. PW25/E. The said mobile phone was seized vide seizure memo Ex. PW25/F. Thereafter, PW49 arrested the accused no. 4 vide arrest memo Ex. PW25/G. PW49 took his personal search and recovered two visiting cards and cash Rs. 500/ and two mobile phones, one make Samsung of white color and one make Spice of black color were recovered. He proved the personal search memo Ex. PW25/H to this effect. He deposed that aforesaid two mobile phones seizure memo Ex. PW25/J. PW49 thoroughly interrogated all the three accused persons separately and recorded the disclosure statement of the accused no. 3 Ex. PW25/K1, that of the accused no. 1 Ex. PW25/K2 and that of the accused no. 4 Ex. PW25/K3.
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FIR No. 180/2012PS: Maurya Enclave
45. PW25 also deposed that thereafter, he along with PW49, other police offi cials and the accused no. 1, 3 and 4 had gone to Prem Bari Pul in TATA 407 bear ing Regn. no. 9989. At that time, the said accused were in muffled face. At the said place, the vehicle was stopped on the pointing out of the accused no.3. The ac cused no. 3 led them on the left side of the road towards Kanhiya Nagar side at a distance of about 100 mtrs. from the flyover and pointed out the place where he had thrown the purse and the key of scooter of the deceased. They searched the said place with the help of torchlight. One leather purse of black color and one key ring containing two keys were found lying there which the accused no. 3 had handed over to PW49. On checking the purse, the driving licence of the deceased and some visiting cards were found. PW49 seized the same vide seizure memo Ex. PW25/L. Thereafter, the said accused persons led them to outer ring road near Haider Pur Water Works Bus Stand, VIPS Institute and had pointed out the place that was the left side of the road where they had thrown dead body of the de ceased. PW49 prepared separate pointing out memos Ex. PW25/M1, Ex. PW25/M2 & Ex. PW25/M3.
46. PW25 also deposed that thereafter, the accused no.1,3 and 4 had led them at house no. C2/16, Sector15, Rohini, Delhi. There, the accused no. 1 led them to the unused bathroom situated on third floor of his said house and had taken out one pistol which he had hidden inside the cistern in a black color polythene. PW49 checked the said pistol and separated the magazine from said pistol and one live cartridge was found in it. PW49 prepared the sketch memo of the said recovered pistol, live cartridge and magazine after putting the same on a plain paper i.e. Ex. PW25/N. PW49 measured the size of the said pistol. "Only for USA Joen' was en graved on the barrel and "Only for Army Supply Use USA" was engraved on the upper side of the barrel. PW49 seized the pistol with magazine and the said live cartridge vide seizure memo Ex. PW25/P. Thereafter, the accused no. 1 had led them on the second floor of the said house in the room adjacent to lobby and from the said room, he took out one blue color jeans and one green color Ishirt from Page no.16 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave one cloth bundle (gathari) and stated that these were the same clothes which he was wearing at the time of incident. PW49 seized the same vide seizure memo Ex. PW25/Q. Accused no. 1 had also taken out key of the swift car from the almirah of the said room and handed over to PW49 which he seized vide seizure memo Ex. PW25/R. Thereafter, the accused no. 1 had also handed over key of the ascent car to PW49 which he seized vide seizure memo Ex. PW25/S. Then, the accused no. 1 had led them to the ground floor in front of his house where he had parked the ac cent car. PW49 instructed PW35 to take the said car to the police station. Accused no. 1 had also pointed out the place in front of his house where he along with the accused no. 3 had parked the swift car along with the deceased. PW 49 prepared the pointing out memo in this effect Ex. PW25/T. Thereafter, the accused no. 3 had also led them at the aforesaid place and pointed out the place where they had parked the swift car after putting the deceased on the back seat of said car. PW49 prepared pointing out memo in this regard Ex. PW25/U.
47. PW 25 also deposed that thereafter, they along with the said accused per sons reached at KP complex, Pitam Pura. At the said place, the accused no. 3 and 1 had pointed out the place which was opposite Nursing Sewa Sadan, near KP Com plex where the accused no. 1 had fired bullet on the deceased in the swift car. PW49 prepared pointing out memos in respect of the accused no. 1 Ex.PW25/V and Ex. PW25/W in respect of the accused no. 3. After that, they along with the said accused persons had gone to Malka Ganj Gurudwara, where the accused no. 3 and 1 had got down from the TATA 407 and pointed out the place where they had kidnapped the deceased in the car and proved the pointing out memo Ex. PW25/TI. Separate pointing out memo regarding the accused no. 3 was also pre pared i.e. Ex. PW25/X.
48. PW25 also deposed that thereafter, they along with the said accused per sons reached at Ring Road, Laipat Nagar near double storey market, where at the instance of the accused no. 1 and 4 they stopped the vehicle and both the said ac Page no.17 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave cused had led them to the gutter (sewer) and got recovered one mobile phone claiming that it was of the deceased which was lying at a dry place within the gut ter. He proved the pointing out cum seizure memo Ex.PW25/Y. A sketch of the place was also prepared by the PW 49 i.e. Ex. PW25/Z. Thereafter, the accused no. 4 revealed that a short distance from there, they had washed the car and had thrown the car seat cover, two head rest and three shades in drain. At their point ing out, all the aforesaid articles were also recovered and proved the pointing out cum seizure memo Ex. PW25/Z1. Then, the accused no. 1 and 4 led them to the place where they had parked the car after that i.e. near DMS booth. The swift car was seized vide pointing out cum seizure memo Ex.PW25/Z2. HC Devender was left there to ensure that the swift car was not tampered with by anyone. PW 49 was already having the key of the same as it was got recovered by the accused no. 1 from his house. The swift car was opened and was checked. PW 49 wanted the same to be kept under vigil as he wanted the same to be examined through foren sic experts as there were some blood spots inside the car.
49. PW 25 also deposed that from there, they went to Naraina Flyover, Ring Road for recovery of slippers and clothes at the instance of the accused no. 1 and
4. They searched but those articles could not be recovered either beneath the fly over or on the flyover. The accused persons were muffled throughout during that period. PW 49 deposited the recovered case property with the malkhana.
50. PW 25 also deposed that he along with PW 49 and Ct Pyare Lal and PW43 along with the driver, in a gypsy, went to the house of the accused no. 1 at Sector 15, Rohini and met the accused no. 2. PW49 interrogated her and arrested her through PW43. He proved her personal search memo Ex. PW25/Z3 and arrest memo Ex.PW25/Z4. PW 49 recorded her disclosure statement Mark PW25/Z5. Ac cused no. 2 had produced one mobile phone make I phone on the demand of PW 49 which was seized vide seizure memo Ex.PW25/Z6. On the demand of PW 49, Page no.18 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave the accused no. 2 also taken out one Top and lower which she was wearing at the time of incident which were seized vide seizure memo Ex. PW25/Z7. After that, the accused no. 2 had led them at NorthEx Mall, Sector9, Rohini and pointed out at the Apollo Pharmacy, from where, she had purchased the bandages and Suthol in the night of incident. PW 49 prepared pointing out memo Ex. PW25/Z8. After that, the accused no. 2 led them to Outer Ring Road near VIPS Institute, the place where they had thrown the dead body. PW 49 prepared pointing out memo.
51. PW 25 also deposed that after that, PW 49 along with him and Ct. Pyare Lal had taken out the accused 4 and 1 to Naraina Flyover and made efforts to trace out the clothes and slippers once again, but the same could not be recovered. After that, they had gone to Amar Colony, Lajpat Nagar, where the swift car was found parked. HC Devender was present there. Crime team officials who were already in formed, had reached at the spot and they had inspected the car and had also taken the photographs of the car. One clip of bandage, one bandage, one empty car tridge case, which was found lying on the middle of both front seats, one front pel let, which was found lying inside the adjacent seat of the driver seat of the car and some coins were also recovered. PW 49 seized the same vide seizure memo Ex. PW25/Z9. Three SIMs of mobile phone were also found lying in the said car which were seized vide seizure memo Ex. PW25/Z10. One paper cutter and one water bottle, on which, blood spot was found, which were not separately seized and were kept inside the car for the purpose of FSL inspection. The crime team officials had thoroughly inspected the car and then the car was taken to the police station with the help of crane and was deposited in the malkhana.
52. PW 25 identified the one mobile phone of silver color make Samsung recovered from the accused no. 3 Ex. P22, one mobile phone of make Nokia E63 recovered from the accused no. 1 Ex. P23, two mobile phones of one make Samsung (white color) and other make Spice (black color) recovered from the accused no. 4 Ex. P24 (Samsung) & Ex. P25 (Spice), one purse and one key of Page no.19 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave scooter recovered at the instance of the accused no. 3 from near Prem Bari Pul, Ex. P3 and key Ex.P4 respectively, one pistol along with magazine recovered at the instance of the accused no. 1 from his house Ex. P26, one empty cartridge case recovered from Swift car Ex. P.27, one key of car and one small key (in loose condition) handed over by the accused no. 1 to PW 49 Ex. P28 (collectively), jeans pants and Tshirt handed over by the accused no. 1 Ex. P29 and Tshirt Ex. P30 respectively, one mobile phone make Samsung recovered from the sewer situated at Ring Road Lajpat Nagar near Double Storey Market at the instance of the accused no. 1 and 4 Ex. P31, one car seat cover, two head rest covers and three window jaali (shades) recovered at the instance of the accused no. 4 from nala, Lajpat Nagar i.e. three window jaali collectively Ex. P5, two head rest cover Ex. P6 and car seat cover Ex. P7, one mobile phone make I Phone handed over by the accused no. 2 Ex. P21, one top and lower handed over by the accused no. 2 Ex. P12 and Lower Ex. P13 respectively, one crap bandage recovered from the swift car at the instance of the accused no.1 and 4 along with other articles Ex. P 32, one clip of crap bandage recovered from swift car Ex. P11, six coins of rupee two and three coins of rupee one recovered from swift car Ex. P34, three SIM cards of mobile phone recovered from said swift car. Ex. P35, swift car bearing no. DL2CAN3335 Ex. P2 and Accent car bearing no. DL4CAJ9666 Ex. P1.
53. PW43 W/Ct. Rakhi deposed about her joining the investigation on 26.07.2012 and visiting the house of the accused no. 1 and proceeding conducted in relation to the accused no. 2 on the similar lines as deposed by PW25. He relied upon arrest memo Ex.PW25/Z4, seizure memo Ex.PW25/Z6 and Ex.PW25/Z7. She also deposed that the accused no.2 took them to the place where they thrown the dead body of the deceased and PW49 prepared the pointing out memo Ex.PW 43/A.
54. PW48 Insp. Sanjeev Verma, Incharge, Mobile Crime Team, NorthWest Dis trict deposed that he along with PW20 and finger print proficient reached oppo Page no.20 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave site to the house no. B140/141, Amar Colony, Lajpat Nagar, near the boundary of the pump house and DMS booth and met PW49 and other police staff. Maruti Swift car bearing registration No. DL2CAN3335 was parked there and at the in stance of PW49, PW20 took the photographs of the said car from different angles. He relied upon the photographs Ex. PW20/A1 to A24 and CD of photographs Ex. PW20/B. He inspected the said car and on the front platform of the said car situ ated above the dashboard, a crape bandage clip was found lying; inside the dash board, one crape bandage and one paper cutter were found kept. Empty cartridge was also found lying in between the front seats of the car. Three SIM cards were lying in the slot of front left side door of said car. One bullet pellet was lying on the backside of the adjacent seat of the driving seat. From the floor of the said car, six coins of two rupee and three coins of one rupee were also found lying. On the space behind the backside seat, one plastic bottle having bloodstains was lying. There were some bloodstains on the floor and also on the inner side of left rear door and seat cover of the back of the driving seat was also missing and smaller window pane on the right rear side was missing. He proved his report Ex. PW48/A.
55. PW20 Ct. Subash deposed on the lines of PW48 and proved the photo graphs Ex. PW20/A1 to A24 and CD of the photographs Ex. PW20/B.
56. PW46 HC Baljeet Singh deposed that on 27.07.2012, he joined the investi gation and FSL Team visited the police station and inspected the swift Car in his presence and presence of PW49. FSL team lifted 10 exhibits from the said car in cluding one paper cutter and proved its sketch memo Ex.PW46/A. All the exhibits were seized vide seizure memo Ex.PW46/B. At about 5:00pm, PW49 recorded the supplementary disclosure statement of the accused no.1 and 4 Ex. PW46/C and Ex.PW46/D respectively. On 07.09.2012, he again joined the investigation and had gone to Apollo Pharmacy where they met PW38 and PW40. PW38 handed over one CD containing CCTV footage of that night to PW49 and CD was played.
Page no.21 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave PW40 identified one lady who had purchased the said articles. On the basis of the dossiers, PW40 identified the accused no.2 as that lady. PW49 seized the CD vide seizure memo Ex.PW38/A. He relied upon the bill Ex.PW40/A and its seizure memo Ex.PW40/C. He identified ExP36 to Ex.P44.
57. PW35 Ct. Sandeep deposed that on 27.07.2012, he joined the investigation along with Ct. Pyare Lal and HC Prithvi Singh and PW49. The accused no. 1 and 4 led the police to underpass of Naraina flyover and at their instance, one Grey colour pant belonging to the accused no. 3 which was stained with mud and some bloodstains was lifted from the pile of the garbage. Pant was having the label of "POE District SouthEast" and was sealed and seized vide seizure memo Ex.PW35/A. He also deposed that the accused no.1 and 4 led them to Lajpat Nagar Flyover southern side and then to a park opposite Evergreen Medicos. The accused no. 4 got recovered one underwear from the corner of the park which was kept be neath the bushes and claimed that he was wearing the same at the time of inci dent. It had blood stains and the same was sealed and seized vide memo Ex. PW35/B.
58. PW49 Inspector Anil Sharma deposed on the similar lines as deposed by PW42 from receipt of information regarding finding the dead body till seizure of the exhibits on 18.07.2012. He also deposed that PCR team had reached at the spot before his arrival. Inquiry was made from various people of that area to ascer tain the identity of the deceased. He also tried to contact PCR caller but could not contact him. He learnt through PCR officials that they had come to know that dead body had been thrown from the swift car of white colour. Crime team was also summoned. Crime team inspected the said spot and also took the photographs of the spot from various angles. Nothing was recovered from the clothes of the de ceased for his identification. He also deposed about registration of the FIR at his instance. He got issued the Hue and Cry notice Ex. PW49/C and tried to gather the local information about the deceased. He deposited the exhibits seized from the Page no.22 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave spot in the malkhana of PS Maurya Enclave. Wireless message was flashed and also got uploaded the details of dead body on ZIP net. He also deposed that PW35 informed him that the said recovered dead body was identified as Shivam Kapoor @ Pandey son of PW18. He also came to know about missing report Ex. PW3/A. He also deposed about the identification of the dead body. Inquest papers were prepared i.e. Ex. PW49/D. Post mortem was got conducted and after postmortem, the dead body was handed over to PW18. After post mortem, the doctor had handed over sealed pullandas containing viscera, clothes of the deceased, blood gauze, left and right nail clippings and bullet which was recovered from the body of deceased during the postmortem along with sample seal and the same were seized vide seizure memos Ex. PW47/A1 to A5.
59. PW49 also deposed that thereafter, he went to the house of the accused no. 3 and made inquiries from PW19. Subsequently, he made inquiries from PW23 and the suspect i.e. the accused no.3. He also obtained CDRs of mobile phones of suspect the accused no. 3 and the deceased. He also made inquiries from the fam ily members of the accused no. 3. Accused no. 1 and 4 were not found present at their respective addresses.
60. PW49 also deposed that on 24.07.2012, the accused no. 1, 3 and 4 came to the police station and were interrogated thoroughly and were also confronted with regard to their locations on the date of incident. All three accused were interro gated separately and their versions were confronted with each other. Again on 25.07.2012, they were called at PS Maurya Enclave and sustained interrogation was conducted. Finally, they confessed about their involvement in the aforesaid case and having satisfied their role in the present case, he arrested them. He relied upon the documents Ex. PW25/A, Ex. PW25/D & Ex. PW25/G; Ex. PW25/B, Ex. PW25/E and Ex. PW25/H; Ex. PW25/C, Ex. PW25/F and Ex. PW25/J; and Ex. PW2S/K1, Ex. PW25/K2 and Ex. PW25/K3.
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FIR No. 180/2012PS: Maurya Enclave
61. PW49 also deposed about the recoveries made at the instance of the ac cused no. 1, 3 and 4; the arrest of the accused no. 2 and the recoveries made at her instance on the lines as deposed by PW25 and PW43.
62. PW49 also deposed about the inspection of the swift car by FSL experts on 27.07.2012 and seizure of the articles and recording of the supplementary disclo sure statements Ex. PW46/C and Ex. PW46/D as deposed by PW46. He also de posed about the recoveries made in pursuance their said disclosure statements on the similar lines as deposed by PW35.
63. PW49 also deposed that on 29.07.2012, he recorded the statement of PW16 and PW28. On 30.07.2012, PW17 and PW18 came to the police station and handed over the bill of the mobile phone of the deceased Ex. PW17/D which he seized vide seizure memo Ex. PW17/C. On 22.08.2012, PW21 was sent to BSA hospital along with sealed pullanda of recovered knife for seeking subsequent opinion vide RC No. 70/21/12. On 28.08.2012, the opinion as well as the case property in sealed condition having seal of concerned doctor were received through PW21. Case property was redeposited in the malkhana. PW4 was called on 29.08.2012 and he accompanied him to the spot where he took rough notes and measurements on the basis of which he later on submitted scaled site plan Ex. PW4/A. On 01.09.2012, he along with PW46 went to the jhuggi of PW28 and shown him the dossiers and he identified the accused no. 2 and 4 through such dossiers and claimed that they were the same whom he had seen in the morning of 18.07.2012 in the swift car. On 05.09.2012, Ct Mahesh was directed to go to FSL along with six sealed pullandas for depositing in FSL (Chemistry Division) and 24 sealed pullandas for depositing with Biology division of FSL. He took the same. He recorded statements to that effect of concerned witnesses.
Page no.24 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
64. PW49 also deposed about the seizure of the CCTV footage and proceeding related thereto on the lines as deposed by PW38 to PW40. He deposed that case property was deposited in the malkhana. He had obtained certificate u/s 65B In dian Evidence Act regarding said CD Ex. P11.
65. PW49 also deposed that on 09.09.2012, he along with PW46 visited Kamla Nagar to verify the fact whether the mobile handset in question belonged to the deceased. He met PW24 who confirmed the correctness of the bill provided to him by PW18. Same day, he also went to residence of PW19 and recorded his statement. He also showed the dossier of the accused no. 1 to him who identified his photograph and revealed that he was the one whom he had seen in the car that night. On 27.09.2012, Ct Surender took the pullanda of recovered pistol, live car tridges and empty cartridge case vide RC No. 80/21/12 for depositing the same at FSL Rohini and he deposited the same. On 12.10.2012, Ct Mukesh took five sealed pullandas containing mobile phones of all the four accused and of the deceased to FSL vide RC No. 88/21/12 and deposited the same there. On 15.10.2012, PW18 participated in TIP proceedings and identified the keys of scooter and purse be longing to the deceased. During investigation, he collected the CDRs of mobile of the accused persons and the deceased. Chargesheet was prepared and filed in the Court.
66. PW49 also deposed that he sent a letter to National Highway Authority of India for getting the location of movement of the accent car which was used by the accused no. 1 and 2 for transporting the accused no. 4 from Faridabad to Delhi. Report to that effect was received which corroborated the said fact. The timings of transportation as per said report also matched with the CDR of the accused. On 04.01.2013, Ct Surender was directed to take sealed pullanda containing pistol as well as two fired cartridges to FSL for obtaining further expert opinion. He also ob tained permission u/s 39 Arms Act after receiving report of FSL.
Page no.25 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
67. PW49 also deposed that supplementary chargesheet was filed after thor ough analysis. Report from the chemistry division of FSL confirmed presence of kerosene in burnt clothes of the deceased as well as one bottle found from near the body. As per report of biology division of FSL, the blood of deceased was found to be matching with the blood recovered from the swift car used by the accused. As per DNA report, the blood on gauze of the deceased matched with the blood stains on the Tshirt of the accused no. 1, lower of the accused no. 2, pant of the accused no. 3 and Barmooda of the accused no. 4. Report regarding analysis of handsets of the accused no. l indicated some text messages which were to the ef fect that "aaj paise chahiya". "bhai men gadi de do please', "gadi kee insurance hai"
etc. Ballistic report also indicated the involvement of the accused. Supplementary chargesheet was accordingly filed.
68. PW49 further deposed that scrutiny of CDRs of mobile of the accused indicated that all the accused were continuously in touch with one another. The mobile phone numbers 9717444448 i.e. of the accused no. 1 and 9999294987 i.e. of the accused no. 3 were switched off at 8:07pm on 17.07.2012 and their location was of Rohini that time. Mobile phone number of the deceased was 8586807081. Last call received on the mobile of the deceased was at about 11.05 p.m. It was from PW16. The mobile phone used by the accused no. 2 was 9811149379. It was also switched off from 12.40 a.m. on 18.07.2012 till morning. Accused no. 1 was also having mobile no. 9999994129. Cell ID Chart reflected that the accused no. 1 was carrying such phone with him when he had gone from Delhi to Faridabad and when he returned to Delhi with the accused no. 4. Mobile phone number of the accused no. 4 i.e. 9990626272 was switched off at 1.37 am on 18.07.2012 after he was pickedup and had crossed the toll between Faridabad and Haryana and remained switched off till 12.30 am. or so.
69. PW49 identified the case properties as identified by PW25 also i.e. Ex. P7, Ex.P13 and Ex.P 21 and Ex. P22 to Ex. P35. W49 also identified piece of gauze Page no.26 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave lifted from the Swift car by the FSL team Ex. P36 to Ex. P39; piece of seat cover of the swift car Ex. P40; bunch of papers having blood stains pickedup from the car Ex. P41; tool kit cover Ex. P42; one plastic bottle having blood stains seized from the same car Ex. P43; one piece of floor mat of said swift car containing blood stains Ex. P44; one pant recovered at the instance of the accused no. 1 and 4 which belonged to the accused no.3 Ex.8; one bermuda/underwear recovered at the instance of the accused no. 4 from the corner of said park Ex. P9; one paper cutter/knife recovered from the dashboard of the car Ex. P10; bloodstained concrete material lifted from the spot Ex. P14; one plastic bottle and its lid lifted from the spot Ex. P15; burnt pieces of cloth lifted from the spot Ex. P16 collectively; partially burnt crape bandage lifted from the spot Ex. P17 collectively; burnt concrete lifted from the spot Ex. P18; earth control concrete lifted from the spot Ex. P19; three coins of Rs. 2/ lifted from the spot Ex. P20 collectively; one fired bullet recovered from the Swift car Ex. P45; one bullet recovered from the body of Shivam at the time of the postmortem Ex. P46; and swift car bearing no. DL2CAN3335 & the Accent car bearing no. DL4CAJ9666.
70. PW51 Dr. P. Karunakaran, Joint Deputy Director, Ministry of Home Affairs, New Delhi deposed that after going through the record, he accorded sanction un der section 39 Arms Act for prosecution against the accused no. 1 for offence un der section 25 Arms Act. He proved the sanction/order Ex. PW51/A. MEDICAL EVIDENCE
71. PW37 Dr. Vijay Dhankar, Specialist and HOD, Forensic Medicine, BSA Hos pital, Rohini deposed that on 19.07.2012, he conducted the postmortem on the body of Shivam Kapoor @ Pandey (the deceased) and noticed burn marks present at places all over the body with singeing of hair at places and there were stain marks over the skin indicating contact with corrosive liquid and base of the burn was pale and dry friable blisters were present at places. However, there was no ev Page no.27 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave idence suggestive of vital reaction with the burns or the margins. On examination, he found following external injuries:
(i) Punctured wound 0.7 cm x 0.6 cm present over the left side of front of forehead. The margins are inverted and abraded. Tattoing could not be ascertained due to burns present in the area.
(ii) Cruciate laceration 2cm x 1cm present over the front of middle of forehead. 5 cm to the right of injury no. 1. The margins were averted.
(iii) Punctured would 0.5cm x 0.5cm with contused and abraded margins present over the front of middle of ab domen just above the umbilicus. No blackening or tattooing was present around the wound.
(iv) Incised wound 8cm x 2.5 cm present over the left tem poral region.
(v) Multiple parallel superficial incised wounds present over the front of middle of left arm.
(vi) Laceration 3 cm x 1 cm present over the back of left forearm just above the wrist.
(vii) Incised wound 1cm x 0.5cm present over the back of left little finger.
(viii) Incised wound 1cm x 0.5cm present over the back of right little finger.
(ix) Superficial to deep burn injuries present over the front of forehead, top of head, right cheek, parts of face, front and back of right arm and forearm, front and back of left arm, forearm and hand, pubic region, inner aspect of right and left thigh and leg, lateral aspect of right and left side of abdomen. The base was pale and there was no evidence of vital reaction at the margins. There was burning and singe Page no.28 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave ing of hair at places mainly on face and scalp. There were dry fragile blisters at places on both upper limbs measuring 2 mm to 5 mm in size.
72. As per the postmortem examination, injury no. 1 was entry wound which made its exit through injury no. 2. Track of such injury has been given in detail in paraxi (1) of the report. Injury no. 3 was also entry wound of a bullet and track of injury has been mentioned in para (xi) (2) of the report and such bullet could not exit and during the postmortem, a jacketed bullet around 7 mm in diameter was found lodged in para spinal muscle. Such bullet was preserved, sealed and handed over to the police. Cause death was due to combined effect of craniocerebral dam age and hemorrhagic shock consequent to the firearm injury to the head and ab domen. All injuries were antemortem and fresh at the time of death. Injury no. 1 to 3 and corresponding internal injuries were caused by a projectile discharged through some firearm. Injury no. 1 to 4 were sufficient to cause death in the ordi nary course of nature individually as well as combined with other injuries present on the body. All burn injuries were postmortem in nature. Rigor mortis was com plete and evident at the joints and probable time since death was about one day and PW37 also observed that the approximate time since death was twothree hours after the last meal and such last meal included pieces of potatoes. He proved the post mortem report PW37 Ex. PW37/A.
73. PW37 also deposed that after postmortem, he had handed over sealed pul landas containing viscera, clothes of the deceased, blood gauze, left and right nail clippings and bullet recovered from the body of deceased along with sample seal.
FORENSIC EVIDENCE
74. PW1 Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL deposed that on 27.07.2012, she visited PS Maurya Enclave and examined Maruti Swift Car Page no.29 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave bearing no. DL2CAN3335 LXI White Colour. After examination, she collected following exhibits from the car and handed over the same to PW49 and advised him to send the same to FSL for further examination. She proved her Crime Scene Report Ex. PW1/A.
(i) One Bloodstain prepared from inner side of left side of rear door
(ii) Bloodstains prepared from backside of left front seat.
(iii) Bloodstains prepared from rear seat of car.
(iv) Bloodstains prepared from right corner of rear seat.
(v) Bloodstains piece of seat cover (rear seat).
(vi) Bloodstain pieces of papers (dickey).
(vii) Bloodstain tool bag cover from (dickey).
(viii) Bloodstain plastic bottle (from dickey).
(ix) Bloodstain piece of mat.
(x) Bloodstain paper cutter (from dashboard).
75. PW1 also deposed that on 05.09.2012, 24 sealed parcels were received in FSL and she marked those parcels as Parcel No. 1 to Parcel No. 24 and such parcels were found containing following articles:
(i) Parcel No. 1 was found containing one dirty blackish brown cloth tape along with hair kept in a plastic container described as bloodstain medical/doctor tape and was marked as Ex. 1.
(ii) Parcel No. 2 was found containing bloodstain concrete and was marked as Ex. 2.
(iii) Parcel No. 3 was found containing brownish blackish TShirt, one brownish blackish (Jeans with belt), one brownish blackish banyan and one brownish blackish underwear and were marked as Ex. 3a, Ex. 3b, Ex. 3C & Ex. 3c.
Page no.30 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
(iv) Parcel No. 4 was found containing blood on gauge and was marked as Ex. 4.
(v) Parcel no. 5 was found containing nail clippings (left) and was marked as Ex. 5.
(vi) Parcel No. 6 was found containing nail clippings (right) and was marked as Ex. 6.
(vii) Parcel No. 7 was found containing bunch of hairs and was marked as Ex. 7.
(viii) Parcel No. 8 was found containing dirty metallic piece described as fired bullet and was marked as Ex. 8.
(ix) Parcel No. 9 was found containing dirty metallic piece containing in a plastic container described as fired bullet (front side of round) and was marked as Ex. 9.
(x) Parcel No. 10 was found containing one Tshirt and one Pants (Jeans) and were marked as Ex. 10a & Ex. 10b.
(xi) Parcel No. 11 was found containing one lady's top and one pajama (lower) and were marked as Ex. 11a & Ex. 11b.
(xii) Parcel No. 12 was found containing one pants and was marked as Ex. 12.
(xiii) Parcel No. 13 was found containing one dirty nicker described as Barmuda/kacha and was marked as Ex. 13.
(xiv) Parcel No. 14 was found containing few dirty muddy netted cov ers described as removable sun shade (jaali), two pieces of dirty muddy seat covers described as car seat cover and were marked as Ex. 14a, Ex. 14B and Ex. 14c.
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FIR No. 180/2012PS: Maurya Enclave
(xv) Parcel No. 15 was found containing dirty brownish gauge cloth piece described as bloodstain gauge cloth (BSGC) and was marked as Ex. 15.
(xvi) Parcel No. 16 was found containing was found containing one dirty light brownish gauge cloth piece described as BSGC and was marked as Ex. 16.
(xvii) Parcel No. 17 was found containing one dirty light brownish gauge cloth piece described as BSGC and was marked as Ex. 17.
(xviii) Parcel No. 18 was found containing one dirty light brownish gauge cloth piece described as BSGC and was marked as Ex. 18.
(xix) Parcel No. 19 was found containing a piece of seat cover and was marked as Ex. 19.
(xx) Parcel No. 20 was found containing few dirty brownish blackish pieces of paper and were marked as Ex. 20.
(xxi) Parcel No. 21 was found containing one tool bag cover and was marked as Ex. 21.
(xxii) Parcel No. 22 was found containing one plastic bottle having lit tle water and was marked as Ex. 22.
(xxiii) Parcel No. 23 was found containing one dirty piece of mat and was marked as Ex. 23.
(xxiv) Parcel No. 24 was found containing one paper cutter and was marked as Ex. 24.
76. PW1 examined all the aforesaid exhibits biologically and blood was de tected on them. She proved the biological report Ex. PW1/B. Page no.32 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
77. PW1 also examined aforesaid exhibits serologically and found human blood on aforesaid exhibits. She also found Blood Group B on exhibits 1, 3a, 3b, 3c, 4, 10a, 10b, 11a, 11b, 12, 13, 15, 16, 18 & 20. She proved the serological report Ex. PW1/C and forwarding letter Ex. PW1/D.
78. PW32 Dr. Lingaraj Sahoo, SSO (Chemistry), FSL Rohini deposed that on 05.09.2012, six sealed parcels were received in FSL and were marked to him for chemical examination. One parcel was containing exhibits 1A, 1B, 1C and 1D and rest of the five parcels were containing one exhibit each which were described as exhibit 2 to exhibit 6 respectively. He carried out the chemical examination by the method of TLC and GC and exhibits no. 2 (black burnt clothes stated to be of de ceased), 3 (partially burnt crape bandage) and 4 (partially burnt, melted bulged plastic bottle) were found containing residue of kerosene. However, these were not found on Ex. 5 and 6 and exhibits 1A, 1B, 1C and 1D which were contained in parcel no.1. No common poison, tranquilizer or pesticides etc. could be detected. He proved the report Ex. PW32/A.
79. PW41 V. Shankarnarayanan, SSO, Regional Forensic Laboratory, deposed that on 05.09.2012, twentyfour sealed parcels were received in the office of FSL Rohini, Delhi and after the biological examination, eight parcels out of the afore said 24 parcels were received in DNA Division of FSL for further DNA analysis. He examined those eight parcels received in DNA Division and conducted biological examination as well as DNA analysis. On biological examination, blood was de tected on exhibits 4, 10a, 10b, 11a, 11b,12, 13, 14,19 and 24 and on DNA analy sis, exhibit 4 i.e. bloodstained gauze cloth piece of deceased, exhibit 10a i.e. T shirt of the accused no.1, exhibit 10b i.e. pants of the accused no. 1, exhibit 11a i.e. lady's top of the accused no. 2, exhibit 11b i.e. pyjama of the accused no. 2, ex hibit 12 i.e. pants of the accused no. , exhibit 13 i.e. knickers of the accused no. 4 and Ex. 24 i.e. paper cutter, were subjected to DNA isolation. DNA were isolated from exhibit 4, exhibit 10a, exhibit 10b, exhibit 11a, exhibit 11b, exhibit 12, ex Page no.33 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave hibit 13 and exhibit 24 and were amplified using AmpF/STR identifiler plus kits and these data were analysed by using GeneMapper IDx software. DNA profile was generated from exhibit 4, exhibit 10a, exhibit 11b, exhibit 12, exhibit 13. A com plete DNA profile could not be generated from exhibit 10b, exhibit 11a and exhibit 24 due to inhibitors/degradation of samples. However, DNA could not be isolated from the exhibit 14 i.e. the exhibit said to be recovered from uncovered Naala and the exhibit 19 said to be recovered from car due to degradation of samples.
80. PW41 also deposed that alleles from Ex. 4 i.e. bloodstained gauze cloth piece of deceased were accounted in exhibits 10a i.e. Tshirt of the accused no. 1, Ex. 11B i.e. pyjama of the accused no.2, Ex. 12 i.e. pants of the accused no. 3 and Ex. 13 i.e. knickers of the accused no.4.
81. PW41 also deposed that as per report Ex. PW41/A, DNA analysis/STC anal ysis performed on the source of exhibit 4 i.e. bloodstained gauze cloth piece of de ceased were sufficient to conclude that it was similar with that of the source of ex hibit 10 i.e. Tshirt of the accused no. 1, Ex. 11B i.e. pyjama of the accused no.2, Ex. 12 i.e. pants of the accused no. 3 and Ex.13 i.e. knickers of the accused no. 4.
82. PW50 V.R. Anand, Assistant Director (Ballasitc), FSL, Rohini, Delhi de posed that on 04.01.2013, three sealed parcels were received in the office of FSL, Rohini and were marked to him for examination. Sealed parcel no. 1 was contain ing one improvised pistol 7.65 mm caliber marked Ex. F1 in case FSL No. 2012/F7200. Sealed parcel No. 2 was containing one bullet marked Ex. EB1. Sealed Parcel No. 3 was containing one bullet marked Ex. EB2. On examination, the bullets marked Ex. EB1 & Ex. EB2 corresponded to the bullets of 7.65mm car tridges. Two 7.65mm cartridges taken from laboratory stock were test fired through the improvised pistol marked Ex. F1. The test fired cartridge cases were marked as TC1 & TC2 and recovered bullets were marked as TB1 & TB2. The indi Page no.34 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave vidual characteristics of rifling marks/striation marks present on evidence bullets marked Ex. EB1 & EB2 and on test fired bullets TB1 & TB2 were examined under comparison microscope and were found identical. Hence, the evidence bullets marked Ex. EB1 & EB2 had been discharged through the improvised pistol marked Ex. F1 in case FSL No. 2012/F7200. Exhibit EB1 & EB2 were ammunition as de fined in the Arms Act 1959. He proved the report dated 05.04.2013 Ex. PW50/A.
83. PW52 R. Eniyavan, Assistant Chemical Examiner (Ballistics), FSL Rohini, Delhi deposed that three sealed pullandas were received in FSL. First pullanda contained one improvised pistol of 7.65mm which was marked as F1. Second pul landa contained one standard 7.65mm cartridge which was marked as A1. Third pullanda contained one standard 7.65mm cartridge case which was marked as EC1. On examination, exhibit F1 was found to be a firearm capable of chambering and firing and it was also found in normal working order after test firing and car tridge A1 was also found to be live ammunition before it was test fired. The perti nent characteristic marks of improvised pistol F1 present on crime cartridge case i.e EC1 were compared with the test cartridge case, fired through same pistol F1. Comparison was done with the help of comparison microscope and keeping in mind the firing pin and breech face marks, it was opined that EC1 had been fired through said firearm F1. Mark A1 as well as mark EC1 were accordingly opined as ammunition and part of ammunition respectively. He proved the report Ex. PW52/A.
84. PW52 also deposed that one sealed parcel was also received in FSL and was found containing three SIM cards which were given marking as SC1, SC2 and SC3 respectively and these were analyzed by Dr. Waghmare on Universal Forensic Ex traction Device of Cell Brite's vide his report Ex. PW52/B. Page no.35 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
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85. PW52 also deposed that five sealed parcels were also received in FSL and parcels were opened and found containing following objects:
S. Description of exhibit Number given by
No. FSL
1 Samsung mobile phone MP1
Vodafone SIM card (inside said phone) SC1
2 Samsung mobile phone MP2
Two Vodafone SIM cards (inside said SC2 and SC3
phone)
3 Nokia mobile phone MP3
Vodafone SIM card (inside said phone) SC4
4 Spice mobile MP4
Two SIM cards (Vodafone SIM and Aircel SC5 & SC6
SIM inside said Spice mobile)
Samsung mobile
MP5
Idea SIM card (inside said Samsung mo
bile) SC7
5 Iphone MP6
One Vodafone SIM (inside said Apple I SC8
phone)
86. Vide report Ex. PW52/C, (i) the exhibit mobile phone marked 'MP3' was an alyzed on Universal Forensic Extraction Device (UFED) of Cell Brite's and the re trieved mobile phone report along with SMS and other data are given in CDR, (ii) the exhibit SIM cards marked "SC1" to "SC7" were analyzed on Universal Forensic Page no.36 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave Extraction Device (UFED) of Cell Brite's and the retrieved SIM Card reports are given in CDR and (iii) The exhibit mobile phone marked Ext. "MP1, MP2, MP4 to MP6 were unable to attach to UFED. No data could be retrieved from "MP1, MP2, MP4 to MP6. CDR in which the data was provided by FSL is Ex. PW52/D. NODAL OFFICER
87. PW2 Israr Babu, Nodal Officer Vodafone deposed that the mobile phone number 9999994129 was issued in the name of Abhay Dewan vide copy of CAF (Ex. PW2/A) along with ID proof as DL and Voter ID Card is Ex. PW2/B. Certified copy of CDR of aforesaid mobile phone number for the period 01.05.2012 to 25.07.2012 is Ex. PW2/C. Certificate under Section 65B of Indian Evidence Act re garding the aforesaid CDR is Ex. PW2/D.
88. PW2 also deposed that the mobile phone number 9811149379 was issued in the name of Ajay Dewan son of Sh. Govind Dewan resident of D1/3, Sector15, Near Vidhya Bharti School, Rohini, Delhi vide copy of CAF (Ex. PW2/E) along with ID proof as Ration Card and Voter ID Card is Ex. PW2/F. Certified copy of afore said mobile phone number for the period 01.05.2012 to 25.07.2012 is Ex. PW2/G. Certificate under Section 65B of Indian Evidence Act regarding the aforesaid CDR is Ex. PW2/H.
89. PW2 also deposed that mobile phone number 8586807081 was issued in the name of Shivam Kapoor son of Sanjeev Kapoor resident of 14, Gandhi Square, Malka Ganj, Delhi vide copy of CAF (Ex. PW2/I) along with ID proof as DL is Ex. PW2/J. Certified copy of the CDR of the aforesaid mobile phone number for the period 01.05.2012 to 25.07.2012 is Ex. PW2/K. Certificate under Section 65B of Indian Evidence Act regarding the aforesaid CDR is Ex. PW2/L. Page no.37 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
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90. PW2 also deposed that the mobile phone number 9999294987 was issued in the name of Seema wife of Sh. Som Nath resident of D41, Malka Ganj, Near Hindu Rao Hospital, Old Subzi Mandi, Delhi vide copy of CAF (Ex. PW2/M) along with ID proof as Voter Card is Ex. PW2/N. Certified copy of the CDR of aforesaid mobile phone number for the period 01.05.2012 to 25.07.2012 is Ex. PW2/O. Cer tificate under Section 65B of Indian Evidence Act regarding the aforesaid CDR is Ex. PW2/P.
91. PW2 also deposed that the mobile phone number 9986869861 was issued in the name of Kamra Prince son of Lekh Raj Kamra resident of YH No. 871/24, Dev Nagar, Near Shiva Shikha Sadan School, Sonepat, Haryana and 32/A 11 th Cross 8th Lane, Shivaji Nagar, Bangalore vide copy of CAF (Ex. PW2/Q) along with ID proof as Copy of Passport is Ex. PW2/R. Certified copy of CDR of aforesaid mo bile phone number for the period 01.05.2012 to 25.07.2012 is Ex. PW2/S1 and Ex. PW2/S2. Certificate under Section 65B of Indian Evidence Act regarding the aforesaid CDR is Ex. PW2/T.
92. PW6 Pawan Singh Nodal Officer Idea Cellular deposed that the mobile phone number 9990626272 was issued in the name of Dhaneshwar Nang son of Sh. Dhanetri Nang resident of G323, Shakur Pur, Delhi vide copy of CAF (Ex. PW6/A) along with ID proof as DL is Ex. PW6/B. Certified copy of CDR of the aforesaid mobile phone number for the period 01.05.2012 to 25.07.2012 is Ex. PW6/C. Certificate under Section 65B of Indian Evidence Act regarding the afore said CDR is Ex. PW6/D.
93. PW7 Shishir Malhotra Nodal Officer Aircel deposed that the mobile phone number 9716444448 was issued in the name of Abhay Dewan vide copy of CAF (Ex. PW7/A) along with ID proof as DL is Ex. PW7/B. Certified copy of CDR of aforesaid mobile phone number for the period 01.05.2012 to 13.10.2012 is Ex.
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FIR No. 180/2012PS: Maurya Enclave PW7/C. Certificate under Section 65B of Indian Evidence Act regarding the afore said CDR is Ex. PW6/D. Cell ID Chart of said mobile phone is Ex. PW7/E. STATEMENT OF ACCUSED
94. After completing the prosecution evidence, statement of all the accused was recorded under Section 313 Code of Criminal Procedure, 1973 in which the in criminating evidence/material was put to them to which they have denied. All the accused stated that they are innocent and have been falsely implicated in this case.
DEFENCE EVIDENCE
95. The accused have examined 06 witnesses in their defence.
96. I have heard the ld. Addl. PP and counsel for the accused and have perused the material available on record.
97. Firstly it is to be seen as to how the wheel of criminal justice system has been set into motion.
98. It is evident from the record that firstly, PW18, father of the deceased, lodged a missing report about his son namely Shivam (the deceased) at PS Subji Mandi and raised suspicion on the accused no. 3. PW3 recorded the DD no.8A Ex.PW3/A on 18.07.2012 at 2:34 am to this effect and handed over the same to PW31. PW31 tried to contact the deceased on his mobile number 8586807089 but the same was switched off. Consequently, he flashed wireless message through Zip Net.
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99. In the intervening night of 17.07.2012 and 18.07.2012 at about 4:27 am, PW8 received a call from the mobile phone number 9990787947 and forwarded the same for circulation. PW8 proved PCR form Ex.PW8/A to this effect. Perusal of the said PCR form reveals that the said information was received through mo bile phone number 9990787947 and name of the informant was Rajan Kumar. PW36 deposed that it was he who gave the said information through his mobile phone number i.e. 9990787947. In his cross examination, he deposed that Rajan was the name of his friend in whose name the said phone number existed. No sug gestion was given to him in his cross examination that he was not using the said mobile number that time or had not given the said information to the police. Therefore, it can be held that it was PW36 who gave the information recorded in PCR form Ex.PW8/A.
100. It is evident from the record that at about 4.27 am, PW5 received the infor mation through wireless from the control room regarding a dead body lying at Ekta Camp Jhuggi AE Block, Near VIPS College (the spot). Consequently, he along with Ct. Ajeet and Ct. Shamsher reached at the spot and found the dead body of a male. On the other hand, PW9 received a PCR Call regarding the dead body of a boy at about 4:30 am and he recorded DD no.6A Ex.PW9/A to this effect and handed over the same to PW42 who along with PW 47 reached at the spot. Si multaneously, PW49 also reached at the spot. Subsequently, PW49 handed over DD no.6A with his endorsement to PW42 for registration of the case which PW42 handed over to PW10 who made a DD no. 9A Ex.PW10/A at about 8:10am on 18.07.2012 and got recorded the FIR Ex.PW10/B. Copy of the said FIR was deliv ered through PW12 (Special Messenger) to concerned MM, DCP North West and Joint C.P. Northern Range on 18.07.2012.
101. It is evident from the testimony of PW29 that on 18.07.2012, on receipt of information, the crime team consisted of PW29, PW30 and Ct. Tinu Pal (Finger Page no.40 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave Proficient) reached at the spot. PW29 inspected the spot and prepared his report Ex.PW29/A. PW30 took the photographs from different angles. PW30 corrobo rated the testimony of PW29 and deposed that after developing the photographs, he handed over the same to PW49 and proved 10 photographs Ex.PW30/A1 to A10 and also the negatives PW30/A11. The said testimony of PW29 and PW30 remained unrebutted.
DEAD BODY OF THE DECEASED
102. It is evident from the testimony of PW42, PW47 and PW49 that when they reached at the spot, they found the dead body of a male. The said dead body was sent to BJRM Hospital, Mortuary in the custody of PW47.
103. PW49 got issued the Hue and Cry notice Ex. PW49/C. According to PW49, wireless message was flashed and he also got uploaded the details of dead body on ZIP net. The said facts are not disputed by the accused.
104. It is evident from the record that at afternoon of 18.07.2012, PW31, through Zip Net, learnt about recovery of one unidentified dead body and that such information was with PS Maurya Enclave. Accordingly, he contacted PS Mau rya Enclave and learnt that the dead body had been preserved at Mortuary of BJRM Hospital and learnt that it was of the missing boy i.e. Shivam. Accordingly, he informed PW18.
105. As evident from the testimony of PW47, he remained in BJRM Hospital where PW18 and other relatives of the deceased came and identified the dead body as the dead body of Shivam i.e. the deceased.
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106. Next morning i.e. on 19.07.2012, on the direction of PW49, PW47 brought the dead body of the deceased at BSA Hospital where PW17 and PW18 identified the dead body of the deceased vide Ex.PW17/A and Ex.PW18/A. Thereafter, the postmortem was conducted on the said dead body. After post mortem, PW17 and PW18 took the dead body of the deceased vide memo Ex.PW 17/B. Hence, it can be held that PW17 and PW18 identified the dead body of the deceased, the postmortem on the body of the deceased was conducted at BSA Hos pital and thereafter, the dead body was handed over to PW17 and PW18 vide Ex.PW17/B. MEDICAL EVIDENCE
107. Case of the prosecution is that death of the deceased was resulted due to two bullet injuries sustained by him and the same was attributable to all the accused. Not only that, the accused had also tortured the deceased by cutting his body at different places through the paper cutter Ex.P10. After committing the murder of the deceased, the accused had burnt the dead of the deceased to conceal his identity. To prove the same, the prosecution examined PW37 who proved the postmortem report of the deceased Ex.PW37/A. According to the said report, the following external injuries were noticed on the dead body of the deceased:
(i) Punctured wound 0.7 cm x 0.6 cm present over the left side of front of forehead. The margins are inverted and abraded. Tattoing could not be ascertained due to burns present in the area.
(ii) Cruciate laceration 2cm x 1cm present over the front of middle of forehead. 5 cm to the right of injury no. 1. The margins are everted.
(iii) Punctured would 0.5cm x 0.5cm with contused and abraded margins present over the front of middle of ab Page no.42 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave domen just above the umbilicus. No blackening or tattooing was present around the wound.
(iv) Incised wound 8cm x 2.5 cm present over the left tem poral region.
(v) Multiple parallel superficial incised wounds present over the front of middle of left arm.
(vi) Laceration 3 cm x 1 cm present over the back of left forearm just above the wrist.
(vii) Incised wound 1cm x 0.5cm present over the back of left little finger.
(viii) Incised wound 1cm x 0.5cm present over the back of right little finger.
(ix) Superficial to deep burn injuries present over the front of forehead, top of head, right cheek, parts of face, front and back of right arm and forearm, front and back of left arm, forearm and hand, pubic region, inner aspect of right and left thigh and leg, lateral aspect of right and left side of abdomen. The base is pale and there is no evidence of vital reaction at the margins. There is burning and singeing of hair at places mainly on face and scalp. There are dry frag ile blisters at places on both upper limbs measuring 2 mm to 5 mm in size.
108. Regarding the bullet injuries, PW37 deposed that as per the postmortem examination, the injury no. 1 was entry wound which made its exit through injury no. 2. Injury no. 3 was also entry wound of a bullet and track of injury has been mentioned in para (xi) (2) of the report and such bullet could not exit. During the postmortem, a jacketed bullet around 7 mm in diameter was found lodged in para spinal muscle and the said bullet was preserved, sealed and handed over to the police. Injury no. 1 to 3 and corresponding internal injuries were caused by a projectile discharged through some firearm.
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FIR No. 180/2012PS: Maurya Enclave PAPER CUTTER OPINION
109. Regarding the cut injuries, it is mentioned in the PMR Ex. PW37/A that the injuries no. (iv) to (viii) were the incised wounds. According to the prosecution, the said injuries were inflicted through the paper cutter Ex.P10.
110. As evident from the testimony of PW49 and PW11, PW49 deposited the ex hibits in the malkhana at earliest and there was no tampering with the same. It is evident from the testimony of PW21 that on 22.08.2012, vide RC no.70/21 Ex.PW21/A, he took 01 sealed pullanda from the malkhana to the mortuary BSA Hospital with a request letter of PW49 for the subsequent opinion on the weapon of offence i.e. the paper cutter. On 28.08.2012, he went to the mortuary BSA Hos pital to take the opinion on weapon of offence and after getting it in sealed cover, he deposited the pullanda in Malkhana and handed over the opinion to PW49. He deposed that till the pullanda remained in his possession, it was not tampered with. To this effect, PW13 deposed that on 28.08.2012, PW21 deposited 01 pul landa containing blood stained paper cutter from the mortuary of BSA Hospital in a sealed condition and he deposited the same vide entry at point C of Ex.PW11/D. In their cross examination, the accused failed to shake the credibility of the said witnesses. In view of the foregoing discussions, it can be held that the paper cutter Ex.P10 was deposited in malkhana at earliest and till its sending to BSA hospital for subsequent opinion, the same was not tampered with.
111. PW37 proved the sketch of the paper cutter/ knife and opined that the in juries no. (iv) to (viii) mentioned above were possible with such knife/paper cut ter. The accused have failed to shake the credibility of the said witness to this ef fect.
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112. Hence, it can be held that the injuries no. (iv) to (viii) mentioned above were inflicted upon the deceased with the paper cutter Ex. P10.
BURN INJURIES
113. It is evident from the post mortem report Ex. PW37/A, the injuries no. (ix) were the burn injuries and the same were post mortem in nature.
114. Counsel for the accused pleaded that according to the prosecution, the petrol was used to burn the dead body of the deceased. However, as per FSL report, presence of the kerosene was noted and not that of petrol. Further, PW49 has failed to disclose the source of petrol. Hence, it is fatal to the case of the prosecution.
115. PW49 specifically deposed that in the rukka dated 18.07.2012, it was mentioned that substance used to burn the body was inflammable (jawalan sheel). As per FSL report, it was kerosene. As per PM report Ex.PW37/A, the burn injuries were found on the body of the deceased. Hence, it can be held that some inflammable substance was used to burn the dead body of the deceased. Hence, whether it was the kerosene or the petrol is not of much relevance.
116. Regarding the cause of death, PW37 deposed that as per the postmortem report Ex.PW37/A, cause of death was due to combined effect of craniocerebral damage and hemorrhagic shock consequent to the firearm injury to the head and abdomen. All injuries were antemortem and fresh at the time of death. Injury no.
(i) to (iv) were sufficient to cause death in the ordinary course of nature individually as well as combined with other injuries present on the body.
117. In cross examination of PW37, counsel for the accused has not disputed the nature of injuries sustained by the deceased, their cause and cause of death of the deceased.
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118. In view of the foregoing discussions, it can be held that the cut injuries were inflicted on the deceased with the paper cutter Ex.P10 and the same were antemortem in nature. Two bullets were fired on the deceased due to which he sustained two bullet injuries and the combined effect of the said bullet injuries resulted in the death of the deceased. After death of the deceased, the dead body of the deceased was burnt. Hence, the injuries sustained by the deceased, their cause and cause of his death stand proved. It is also proved that after the death of the deceased, his body was set on fire due to which burn injuries were noticed on his body.
TIME SINCE DEATH
119. Regarding the probable time since death, in the postmortem report Ex.PW37/A, it is mentioned that rigor mortis was complete and evident at the joints and probable time since death was about one day (body preserved in cold storage). It was also observed that the approximate time since death was two three hours after the last meal and such last meal included pieces of potatoes.
120. Counsel for the accused pleaded that PW37 in his cross examination specifically deposed that probable time of death of the deceased was 12:45 pm on 18.07.2012. Ld. APP for the State has not reexamined the said witness to this effect. As such, the testimony of PW37 to this effect remained unrebutted. Hence, it stands proved that the deceased had died at 12:45pm on 18.07.2012 and not in the intervening night of 17.07.2012 and 18.07.2012 as alleged by the prosecution. This fact falsifies the entire case of the prosecution. This fact also proves that when the body of the deceased was noticed and attended by the police officers in the morning of 18.07.2012, the said person was alive but PW49 had not taken any steps to provide medical aid to him. In that case, if the immediate medical aid would have been provided to the deceased, then his life could have been saved. Instead, PW49 got it removed to the BJRM Hospital Mortuary directly Page no.46 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave which proved fatal to the life of the deceased. To support his submissions, counsel for teh accused relied upon the judgment "Anjan Kumar Sarma and Others vs. State of Assam, (2017) 14 SCC 359".
121. It is evident from the record that Ld. APP for the State, for the reasons best known to him, has not reexamined PW37 as to the probable time of death as deposed by him in his cross examination.
122. Now the question arises as to whether the testimony of PW37 as to the probable time of death as mentioned by him in his cross examination is the conclusive proof to that effect.
123. In the judgment titled as "Umesh Singh v. State of Bihar", reported in (2013) 4 SCC 360, the Honb'le Supreme Court held:
14. Further, the learned Senior Counsel contended that the High Court has failed to consider the medical evidence, which does not support the prosecution case. According to the prosecution, the oc currence of the incident is said to have taken place on 1671996 at 3.30 p.m. when the deceased was going to join his duty from his vil lage home. On the basis of the postmortem report on record, in Col umns 21 to 23, PW 8, the doctor clearly stated that not only stom ach of the deceased but both bladders were empty and the time elapsed since death was 30 to 36 hours. Thereby the occurrence of the incident must have taken place in the early hours of 1671996 as the deceased must have empty stomach. Further, in the evidence of PW 8, the description of the injuries in the postmortem report is also not in accordance with the allegations made by the witnesses.
PW 8 the doctor has categorically admitted in his evidence that the deceased must have died before 30 hours from the time of the post mortem examination. It means that no occurrence of the incident took place at 3.30 p.m. on 1671996 as alleged by the prosecution and the deceased was dead before the alleged time of occurrence. Therefore, the medical evidence is not in conformity with the prose cution case rather it supports the defence version making the entire prosecution case false. In this regard he has placed strong reliance upon the proposition of law laid down by this Court to the effect that once the time of death as claimed by the prosecution is drastically different from the one as per the medical evidence, the case of the Page no.47 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave prosecution becomes doubtful and the benefit of doubt must be given to the appellant................"
22. Insofar as the medical evidence of the doctor, PW 8 read with the postmortem report upon which strong reliance is placed by the learned Senior Counsel for the appellant that death must have taken place prior to 30 to 36 hours as opined by the doctor that means it relates back to the early hours of 1671996 but not at 3.30 p.m. as mentioned in the FIR. Once the time of death is drastically different from the one claimed by the prosecution its case is vitiated in law. In support of the abovesaid contention strong reliance placed upon the decisions of this Court in the aforesaid cases are all misplaced as the same are contrary to the law laid down by this Court in Abdul Say eed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] The relevant paragraphs are extracted hereunder: (SCC pp. 27274, paras 3336 & 39) "33. In State of Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] it was held as follows: (SCC p. 101, para 15) '15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or prob able. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.'
34. Drawing on Bhagirath case [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] , this Court has held that where the medical evidence is at vari ance with ocular evidence, 'it has to be noted that it would be erroneous to accord undue pri macy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "con stant"'.
35. Where the eyewitnesses' account is found credible and trustwor thy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, Page no.48 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave including medical evidence, as the sole touchstone for the test of such credibility.
'21. ... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undis puted facts, the 'credit' of the witnesses; their performance in the wit ness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumula tive evaluation.' [Ed.: As observed in Krishnan v. State, (2003) 7 SCC 56 at pp. 6263, para 21 : 2003 SCC (Cri) 1577.]
36. In Solanki Chimanbhai Ukabhai v. State of Gujarat [(1983) 2 SCC 174 : 1983 SCC (Cri) 379] this Court observed: (SCC p. 180, para 13) '13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner al leged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewit nesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged in consistency between it and the medical evidence.'
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value visàvis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant fac tor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibil ity of the ocular evidence being true, the ocular evidence may be dis believed."(emphasis in original)
23. The learned State counsel has rightly urged that if the medical and ocular evidence is contrary then the ocular evidence must prevail..........."
124. It is evident from the record that it was PW36 who gave the first information to the police about lying of the dead body at the spot. In cross examination of PW36, counsel for the accused has not given any suggestion that his said observation was wrong and in fact, the said person was alive.
Page no.49 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
125. PW5, PW8, PW9 deposed about the receipt of the information regarding lying of a dead body at the spot on 18.07.2012 at about 4:30 am. PW5 specifically deposed that when he reached at the spot, he found a dead body of a young male person. In his cross examination also, counsel for the accused has not put any suggestion that his said observation was wrong and in fact, the person was alive.
126. Perusal of the crime team report Ex.PW29/A reveals that the crime time reached at the spot at about 5:10am and remained there upto to 6.40 am on 18.07.2012. The crime team found a dead body of unidentified male lying at the spot. No question was put to PW29 to dispute the said finding.
127. PW42, PW47 and PW49 specifically deposed that when they reached at the spot, they found a dead body of a male person and the same was in the burnt condition. They also gave the complete description in what condition the said body was lying and about the condition of the clothes on the body of the said person. Again, in their cross examination, no suggestion was given that the said person was not dead but was alive at that time. No suggestion was given to any of the abovementioned witnesses that the body of the said person was not in the burnt condition.
128. PW47 in his cross examination specifically deposed that he reached at the spot at about 4:45am and remained there till 7:50am. As such, PW47 remained at the spot for considerable time. In his cross examination, no question was put to him to ascertain as to whether he noticed any movement in the body during the said period. PW47 in his testimony also specifically deposed that as directed, he removed the dead body to BJRM Hospital Jahangirpuri where it was kept in the mortuary. In his cross examination, no question was raised as to whether he noticed any movement in the body of the said person when he removed the said body to the mortuary or that the person was alive that time.
Page no.50 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
129. PW 49 in his cross examination deposed that he did not call any doctor at the spot to assess the condition of the deceased and was certain that he was dead. It was based on his observation. He also deposed that since he was sure that he was dead, he sent the body to the mortuary straightway. No suggestions to the contrary was given to him in his cross examination.
130. PW49 also deposed that the body was shifted to the mortuary in a private tempo through PW47 and there was no chance of any further injury being received by the deceased during such transportation. He denied the suggestion that he had not taken any precaution during such transportation or that he had deliberately not sent the deceased to any doctor for medical examination for confirmation about his death. In cross examination of PW49, no suggestion was given that the said person was alive when he reached at the spot in the morning on 18.07.2012 but later he died as he (PW49) had not taken the steps to get him medically examined by the doctor. Further, counsel for the accused has failed to explain as to what benefit PW49 would have got by not sending the said body for medical examination.
131. As mentioned above, death of the deceased was the result of two bullet injuries. Cut marks were also noticed on the body of the deceased. The body was already in burnt condition. The postmortem report Ex. PW37/A is also silent about any other injury of the body of the deceased. As such, no other injury had facilitated the death of the deceased. Counsel for the accused has also not pointed out any injury as mentioned in the post mortem report of the deceased which would have resulted during its transportation in the tempo. Even no question was put to PW37 to this effect. Therefore, sending the body in tempo to the mortuary in no manner had facilitated the death of the death nor caused any new injury on the said body.
132. FIR Ex. PW10/B was lodged on 18.07.2012 at about 8:10am under section 302/201 IPC. As such, the FIR was lodged at earliest. In cross examination of Page no.51 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave PW49, no suggestion was given that he got lodged the said FIR under incorrect provision of law.
133. In view of the foregoing discussions, it can be held that all the police officials and the public persons who attended the body of the deceased at the first instance and also spent considerable time with it, had noticed that the person was dead and the accused have not disputed the said fact in their testimonies.
134. In the postmortem report Ex.PW37/A, it is mentioned that on 19.07.012, the postmortem started at 12.45 pm and concluded at 06.40 pm. In the said report, under the heading "Probable time since death", it is mentioned "about one day, (body preserved in cold storage). Approximately 23 hours after the last meal. The last meal included pieces of potatoes.
135. In the post mortem report Ex. PW37/A, it was mentioned "stomach was distended with the gas and contained about 400 cc of semi digested food. Pieces of potato 0.5 cm1.5 cm in size were identifiable." It implies that the pieces of potato in remarkable size were present in the stomach of the deceased.
136. Regarding the time since death, PW37 had given a finding that the deceased would have died approximately after 23 hours after his last meal because of presence of potatoes and the state in which they were found. In his cross examination, he deposed that it could be more than three hours also with further margin of one hour. Hence, it can be held that according to PW37, the death of the deceased would have taken place between 3 and 4 hours of his taking the last meal.
137. As held above, at about 4:30am on 18.07.2012, the body of the deceased was found lying at the spot and everybody noticed that the person was dead. Since thereafter till its removal to BSA hospital for the postmortem, it remained in the BJRM Hospital Mortuary. According to PW37, the deceased died on Page no.52 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave 18.07.2012 at about 12:45pm. In that case, the deceased must have taken his last meal between 4:30am and 12:45pm and more precisely between 8.45 am and 12.45 pm on 18.07.2012. Firstly, it is nowhere the case of the accused also. Secondly, it is apparent from the photographs of the body of the deceased Ex.PW 30/A1 to Ex.PW30/A10 and condition under which the body of the deceased was found at the spot that it is beyond imagination that the said person would have consumed the food during the said period. As such, there exists material contradiction in the statement of PW37 and finding given in the postmortem report Ex.PW37/A.
138. As held above, at the spot, the body of the deceased was found in burnt condition and the said fact has not been disputed by the accused also. As evident from the record, the dead body of the deceased had been directly removed to the mortuary from the spot. According to PMR Ex. PW37/A, all the burn injuries were postmortem in nature. It implies if the deceased had died at 12.45 pm on 18.07.2012, then the said dead body must have been burnt thereafter. However, this is not the case of the accused also. This fact also verify the testimony of the abovementioned witnesses that when the noticed the body of the deceased in the morning, the deceased had already died. In the given circumstances, there was no occasion for PW49 to send the body of the deceased to the hospital for medical examination and MLC.
139. In view of the foregoing discussions, it can be held that the testimony of PW37 as to probable time of death is not only contradictory to his own report Ex. PW37/A but also to the testimony of the abovementioned witnesses. Hence, in view of the judgment Umesh Singh (supra) and forgoing discussions, it can be held that in the present case, the ocular evidence must prevail over the testimony of PW37 as the time of death of the deceased. Therefore, it can be held that the deceased had died in the intervening night of 17.07.2012 and 18.07.2012 and not on 18.07.2012 at 12.45 pm. Hence, the judgment relied upon by counsel for the accused is of no benefit for the accused.
Page no.53 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave BALLISTIC REPORT
140. Case of the prosecution is that the pistol recovered in the present case and the bullets recovered from the body of the deceased & from the swift car were sent to FSL for examination. PW50 examined the said exhibits and proved his report Ex. PW50/A according to which the bullets Ex.EB1 & Ex.EB2 were fired through the pistol Ex. F1. PW52 also deposed to that effect.
141. PW37 deposed that after postmortem, he handed over the parcels to PW49. It is evident from the testimony of PW47 and PW49 that after the postmortem, PW37 handed over the sealed pullandas containing viscera, clothes of the de ceased, blood gauze, left and right nail clippings and bullet which was recovered from the body of deceased during the postmortem along with sample seal to PW49 which were seized vide seizure memos Ex. PW47/A1 to A5. The said testimonies remained unrebutted. Hence, it can be held that immediately after the postmortem on the body of the deceased, the sealed parcel containing the exhibits was handed over to PW49 which he seized vide seizure memo Ex.PW47/A to Ex.PW47/A5. As evident from the testimony of PW11, the said exhibits were deposited in the malkaha, the same day and remained untampered with.
142. As held above, after postmortem, PW37 handed over the parcels containing the exhibits including the bullet recovered from the body of the deceased to PW49 who duly sealed and seized the same and deposited in the malkhana at earlies. As held in later part of the judgment, the pistol and another bullet recovered in the present case were sealed and seized and deposited in the malkhana at earliest. As evident from the testimony of PW11, the said exhibits were deposited in the malkaha the same day and remained untampered with.
143. It is evident from the report dated 05.04.2013 Ex. PW50/A that PW50 ex amined one improvised pistol 7.65 mm caliber Ex. F1, one bullet Ex. EB1 and one Page no.54 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave bullet Ex. EB2. On examination, the bullets Ex. EB1 & Ex. EB2 corresponded to the bullets of 7.65mm cartridges. Two 7.65mm cartridges taken for test fired through the improvised pistol Ex. F1. The test fired cartridge cases are TC1 & TC2 and re covered bullets are TB1 & TB2. On examination, the individual characteristics of rifling marks/striation marks present on evidence bullets Ex. EB1 & EB2 and on test fired bullets TB1 & TB2 were found identical. Hence, it was reported that the evidence bullets Ex. EB1 & EB2 had been discharged through the improvised pistol Ex. F1. Exhibit EB1 & EB2 were ammunition as defined in the Arms Act 1959.
144. Counsel for the accused pleaded that in the said report, PW50 has not disclosed the source from where he procured the test bullets TB1 and TB2. There was delay of three months in test firing. No date of test firing is mentioned. The characteristics and expression of the striation mark/character mark are not filed by PW50. Hence, the testimony of PW50 and the report proved by him are not reliable on nature.
145. Regarding procurement of the test cartridges, PW50 in his cross examination specifically deposed that the official procedure was followed to obtain the same from the stock and there was entry in the relevant register which might have been signed either by him or his subordinate staff. In his cross examination, no suggestion to the contrary was given by counsel for the accused.
146. PW50 specifically deposed that he had maintained a file wherein details of the test performed were mentioned, however, he did not carry the same. But the said file was in the office and he could produce the same if directed so by the court. In his cross examination, no suggestion to the contrary is given. Counsel for the accused has failed to point out any law or rule to the said witness under which PW50 was mandated to file the said record along with the report. Further, if according to the accused, the said record was important for them qua that witness to test his veracity, then they should have prayed to the court for necessary direction to that effect but that was not done.
Page no.55 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
147. PW50 in his cross examination had specifically mentioned the period within which he had carried out the said examination and admitted that the date of examination was not mentioned in the said report. No specific suggestion was given to PW50 that no examination was conducted by him during the said period. Further, non mentioning of the specific date when the examination was conducted is not fatal to the case of prosecution.
148. Counsel for the accused cross examined PW50 regarding the rifling mark and striation mark which were found on the evidence bullet and test bullet. PW 50 had explained to that effect. Counsel for the accused pleaded that PW50 had not filed the expression of the said marks to have the idea whether they were similar or not. Firstly, in his cross examination, no specific suggestion was given that the findings given by him regarding the characterization /expression of the marks on the bullet were incorrect or were incomplete in absence of filing the expression of the same along with the report itself. No suggestion was given to him that as per the procedure followed in the FSL lab regarding the ballistic examination, it was mandatory for him to file the expression of those marks on record itself. In his cross examination, no suggestion was given to him that he had tempered with the exhibits.
149. In view of the foregoing discussions, it stands proved that the pistol Ex.F1 was in working condition and was used to fire shot on the deceased and the bullets Ex. EB1 and Ex. EB2 were fired through the said firearm and had caused the injury no. 1 to 3 on the deceased and resulted in his death. Therefore, the nexus between the nature of injuries sustained by the deceased, their cause, the weapon of offence i.e. the pistol & the paper cutter, and cause of the death of the deceased stands proved.
150. Case of the prosecution is that in the intervening night of 17.07.2012 and 18.07.2012 at about 10:30 pm, the deceased visited the house of PW19 on his Page no.56 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave scooty. Later on, the accused no.3 who was in the white colour Swift Car in which one more person was sitting whose identity was later on disclosed as that of the accused no.1, met them at Malka Ganj Chowk. Accused no.3 told the deceased that he wanted to talk with him. At about 11:00 pm, the deceased dropped PW 19 at his house and left saying that he was going to meet the accused no.3. To prove the said facts, the prosecution examined PW19.
151. It is also the case of prosecution that on 17.07.2012, once the deceased did not came back to the house by 11:00 pm, PW16 made a call from his mobile phone no.9871410509 on the mobile phone number of the deceased 8586807081 who told him that he would return within 15 minutes. Once, the deceased did not come back to his house, PW16 to PW18 started contacting the friends of the deceased to know his whereabouts. In that process, at about 11:30 pm, PW19 received a call from PW16 who inquired from him about the whereabouts of the deceased. At about 11:40 pm, PW16, PW17 and PW18 visited the house of PW19 who told them about his meeting with the deceased and their meeting with the accused no. 3. Thereafter, they visited the house of the accused no.3 but the accused no. 3 was not present at his house. However, they met mother of the accused no.3 who gave them the mobile phone of the accused no.3. However, on being contacted, the said mobile phone was found switched off. Consequently. PW16 & PW19 on the one hand and PW17 & PW18 on the other hand searched for the deceased at different places. Later on, PW18 found the scooter of the deceased without key at Gurudwara Chowk and informed so to PW16. Since the deceased could not be found, hence, PW18 lodged a missing complaint Ex. PW3/A at about 2.45 am at PS Sabji Mandi. To prove the said facts, the prosecution examined PW16 to PW19.
TESTIMONY OF PW19
152. Counsel for the accused pleaded that the last seen theory of the prosecution is based on the testimony of PW19. However, first statement of PW19 was Page no.57 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave recorded on 23.07.2012. As such, there was delay in recording the first statement of PW19 which the prosecution has failed to explain.
153. Counsel for the accused also pleaded that according to the prosecution, the incident took place in the intervening night of 17.07.2012 and 18.07.2012. Ac cording to PW18, PW19 met them in the intervening night of the incident and informed them about his meeting with the deceased and had also joined them to find out the deceased. However, the missing report Ex.PW3/A lodged by PW18 is silent about the name and presence of PW19. The facts narrated by PW19 to PW18 also do not find mention in the said report. This proves that PW19 was not present at the spot.
154. Counsel for the accused also pleaded that PW19 mentioned in his testi mony that the accused was wearing Tshirt and Pant/Jeans. However, as per the missing report Ex.PW3/A, the deceased was wearing the Pajama not the jeans.
155. Counsel for the accused also pleaded that PW19 in his testimony deposed that the accused no. 1 and 3 were in the swift car that night and mentioned the make and registration of the car. However, PW19 in none of his statements given to the police mentioned the said number. As such, PW19 has made improvement in his testimony.
156. Counsel for the accused also pleaded that according to PW19, on 30.03.2013 at about 7 pm, he was threatened by two persons who came on the motorcycle to turn hostile in this case. Accordingly, he lodged a complaint to this effect with the police and he relied upon the complaint Ex.PW19/B. However, the said complaint is not proved as per law. Further, PW19 delayed in lodging the said complaint which he failed to justify. More so, the said complaint was lodged in the police station of different jurisdiction. According to PW19, the said persons had not named the accused no.1 and no.3 on whose behalf they threatened him, not to depose. In view of the foregoing submissions, counsel for the accused Page no.58 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave pleaded that the testimony of PW19 is not reliable in nature. In fact, PW19 is a planted witness.
157. At the very outset, counsel for the accused disputed the presence of PW19 in the said intervening night on the ground that if PW19 was present along with the deceased that night, then PW18 must have mentioned the said fact in the missing report Ex. PW3/A which is completely silent to this effect.
158. PW16, PW 18 and PW19 in their testimony deposed that in the intervening night of 17.07.2012 and 18.07.2012, they visited the house of the accused no.3 where they met his mother who informed that the accused no.3 was not at his home and gave them his mobile phone number and on being contacted, the mobile phone was found switched off. Testimony of the said witnesses to that effect remained consistent and corroborated each other in material particulars. Further, PW19 in his cross examination specifically deposed that after 11:45pm, on 17.07.2012, he along with the brother and father of the deceased visited the house of the accused no.3. No suggestion to the contrary was given by counsel for the accused. Above all, the accused no. 3 in reply to the question no. 7 of his statement u/s 313 CrPC, admitted the visit of PW16, PW18 and PW19 at his house and that he was not present at his home and stated that he was at her sister place. The accused no. 3 also stated that his mother had given his mobile phone number and it might be due to low battery the call could not be connected. He nowhere stated that the battery of his mobile phone had actually discharged and only raised a presumption that might be due to the battery discharge, the call could not be connected. As such, he has not raised a specific plea that the battery of his mobile phone was discharged, hence, the calls could not be connected. The said statement of the accused no. 3 itself proves the presence of PW19 and his meeting with PW16 and PW18. These facts also prove that PW19 had informed PW18 about his meeting with the deceased and the accused no. 3 that's why they visited house of the accused no. 3 otherwise there was no occasion for PW18 to visit the house of the accused no.3 along with PW19 that night. This also proves Page no.59 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave that mother of the accused no. 3 had given his mobile phone number to PW16, PW18 and PW19.
159. Regarding the delay in recording the statement of PW19 u/s 161 CrPC, PW 19 in his cross examination admitted that on 18.07.2012 at about 22:30 pm, he visited PS Sabji Mandi where several police officials were present and he narrated the facts whatever he knew to the police that day. However, his statement was not recorded that day and the same was recorded 45 days after the incident, though, the police made inquiries from him during the said period. Hence, it is evident from the testimony of PW19 that on 18.07.2012, he narrated the facts to the police, however, his statement was not recorded that day. In fact, his first statement was recorded on 23.07.2012. However, during the said period, the inquiry was being made from him. In cross examination of PW19, no suggestion was given that the facts narrated by him on 18.07.2012 were different or he made improvement in the said facts when he made his statement on 23.07.2012. No suggestion was given to him that his first statement dated 23.07.2012 was not his voluntary statement or was made at the instance of family members of the deceased or PW49. In cross examination of PW49 also, no suggestion was given that he had deliberately delayed in recording the statement of PW19 or that PW 19 made the statement on 23.07.2012 on his behest. As such, it can be held that PW19 had informed the police about the facts at earliest.
160. In the judgment titled as "Santosh Kumar Singh v. State", reported in (2010) 9 SCC 747, the Hon'ble Supreme Court held:
"50..............The only argument against PW 2 is that his statement under Section 161 of the Code of Criminal Procedure had been recorded after three days. We find nothing adverse in this matter as there was utter confusion in the investigation at the initial stage. Moreover, PW 2 was a next neighbour and a perfectly respectable wit ness with no bias against the appellant."
161. In the present case, PW19 specifically deposed that he knew the accused no.3 since his childhood. In cross examination of PW19, no suggestion to the Page no.60 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave contrary was given by counsel for the accused. Hence, it stands proved that PW19 knew the accused no. 3 since his childhood. As such, the identity of the accused no. 3 stands proved. It is evident from the testimony of PW19 that the deceased was known to him. It is also evident from the record that the deceased was also known to the accused no. 3. The said facts have not been rebutted by the accused persons. Hence, it can be held that PW19, the deceased and the accused no. 3 were known to each other prior to the date of incident.
162. In cross examination, PW19 denied a suggestion that he made a false statement at the instance of the prosecution and family of the deceased. The accused have not cited any reason for PW19 to do so. Further, no suggestion was given to PW19 that he had any enmity with the accused no.3 that's why he has deposed against him. The accused no.1 and 3 even in their statement u/s 313 CrPC have not stated that PW19 or the family members of the deceased had any enmity with them. As discussed above, PW19 knew the accused no. 3 since his childhood and had no enmity with him. The accused no. 3 has not cited any reason as to why his child hood friend would depose against him. Not the least, the role of PW19 in the present case is that that night, the deceased met him and they met the accused no.1 and 3 at Malka Ganj who were in the Swift Car and the accused no.3 wanted to talk to the deceased and on that pretext, the deceased left him at his house to meet the accused no.3. Therefore, whether PW19 raised suspicion for murder against the accused no.3 or not is not relevant. Rather, the said conduct of PW19 shows that he is a natural witness who has deposed what he had actually seen. If PW19 had to depose falsely against the accused no. 3 at the instance of PW49 or the family members of the deceased, then he would have stated more than that. In view of the judgment Santosh Kumar Singh (supra) and foregoing discussions, it can be held that the delay in recording the statement of PW19 u/s 161 CrPC is not fatal to the case of the prosecution.
163. Regarding the clothes worn by the deceased that night, PW19 deposed that the deceased was wearing a TShirt and Jeans that night and denied a suggestion Page no.61 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave that he was wearing a pajama, not a jeans. It is evident from the record that once the dead body of the deceased was found, the deceased was wearing the TShirt and Jeans. It is evident from the testimony of PW19 that on 18.07.2012 at 34 pm, he came to know that the deceased had died. As evident from the record, in between, the dead body of the deceased had already sent to BJRM mortuary and thereafter to BSA Hospital for postmortem and during that period, PW19 had no occasion to see the clothes worn by the deceased at the time of his death. It is not the case of the accused that it was PW49 or any other police official who had disclosed about the clothes worn by the deceased at the time of his death to PW
19. As such, there was no occasion for PW19 to know about the clothes worn by the deceased that night, unless and until he had actually met him over there. This fact proves that PW19 met the deceased that night, otherwise, there was no occasion for him to know the said fact.
164. Regarding the identity of the car, PW19 in his cross examination specifically deposed that it was a white colour swift car, having the registration no.DL2CAN 3335 and identified it as Ex.P2. In his cross examination, in response to a question, PW19 specifically deposed that the accused no. 3 was driving the said swift car. No suggestion to the contrary was given by counsel for the accused. PW19 in his cross examination failed to specifically mention the time or how long he had seen the said car. However, in reply to a specific question, he stated that he noticed the colour of the car which was white and its number was interesting. In reply to a specific question as to whether he had told the said interesting number to the police in any of his statement, he stated that he did not remember. At that juncture, the witness was allowed to answer the said question after going through his statements dated 23.07.2012, 09,09,2012 and 15.10.2012 recorded u/s 161 CrPC. In reply, PW19 stated that he did not tell the number of the car to the police. However, perusal of the statement of PW19 recorded u/s 161 CrPC on 23.07.2012 reveals that PW19 specifically stated that for the last few days, the accused no.3 was roaming in the area Malka Ganj in the white swift car bearing no. DL 2CAN 3335 and that night, he came at Malka Ganj Page no.62 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave Chowk in the above said car. As such, it can be held that PW19 in his very first statement had not only disclosed the description of the said car but had also disclosed its registration number. However, the prosecution has not examined the said witness to that effect in its entirety for the reason best known to it. However, it is evident that in his statement dated 23.07.2012, PW19 had disclosed the registration of the Swift car. As such, the said finding is contrary to the judicial record. Hence, it can be held that PW19 had not mentioned the make, colour and registration number of the said car for the first time before the court but he had already mentioned the said facts in his first statement dated 23.07.2012.
165. Further, in his cross examination PW19 deposed that another boy whom he later on was identified as the accused no.1 was also sitting in that car. In his cross examination, in response to a question, PW19 has shown his ignorance as to whether the accused no. 1 and 3 had also left Chowk of Gurudwara when he and the deceased left the said place. PW19 in his cross examination also deposed that when they met the accused no.3 at Chowk Gurudwara Malka Ganj, their scooter moved a little and then stopped. These facts prove the presence of the accused no. 1 and 3 in the swift car and their meeting with PW19 and the deceased that night at Gurudwara Chowk.
166. It is evident from the record that PW19 in his testimony specifically deposed that he met the deceased in the intervening night of 17.07.2012 and 18.07.2012 who was on his scooty; he and the deceased met the accused no.3 at Malka Ganj Chowk where he was in the white colour swift car in which one more person was sitting whom he later on identified as the accused no. 1; the accused no.3 wanted to talk with the deceased, and in pursuance thereto, the deceased left him at his house at about 11:00 pm; and then left stating that he was going to talk with the accused no.3.
167. In cross examination of PW19, no suggestion was given to PW19 that the accused no.1 and 3 were not present at the spot or that he had not met them in Page no.63 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave the intervening night of 17.07.2012 and 18.07.2012 or that accused no.1 and 3 were not in the Swift Car that time or that the Swift Car identified by him was the result of mistaken identity or that he identified the Swift Car at the instance of PW19 or that the deceased had not dropped him at his house and then left by saying that he was going to the accused no.3. In cross examination of PW19, no suggestion was given that he was not present with PW16 and PW18 on that night and had not searched the deceased along with them.
168. According to the complaint Ex. PW19/B, PW19 was threatened at about 7:00pm on 30.03.2013 and the said complaint was lodged on 31.03.2013 at 12:10pm at PS Sabji Mandi i.e. within the jurisdiction where the house of PW19 was situated. It is evident from the testimony of PW19 that on the date, when the threat was given to him he was a witness in one criminal case only i.e. the present case. No doubt that there was some delay in lodging the said complaint, however, keeping in view that the nature of case in which PW19 had to depose and his age, it was quite natural on the part of PW19. Therefore, there is no substance in the said plea raised by the counsel for the accused. Hence, it implies that the threat was given relating to this case only.
169. Counsel for the accused further pleaded that PW19 in his cross examina tion deposed that he had not raised any suspicion against the accused in his first statement. PW49 has not collected the CDR of the mobile phone of PW19. In the said background, he argued to the extent that PW19 may have murdered the de ceased, however, PW49 has falsely implicated the accused persons. PW19 in his statement nowhere stated that he raised any suspicion against the accused no.3 rather he simply mentioned about his meeting with accused no.3 and one more person i.e. the accused no.1. Further, no suggestion to that extent was given to PW19 or PW49. No suggestion was given to PW49 that to save PW19, he has falsely implicated the accused in the present case.
Page no.64 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
170. In view of the foregoing discussions, it can be held that PW19 is not a planted witness and the testimony of PW19 is trustworthy and reliable in nature.
TESTIMONY OF PW18
171. Regarding testimony of PW18, counsel for the accused pleaded that according to PW18, before 12:00 mid night, he along with PW19 reached at the place of the accused no.3 in search of the deceased. The said plea is contrary to the missing report Ex.PW3/A wherein he has stated that till 12 mid night, they waited for the deceased and thereafter, started his search. It implies that before that, they had not met PW19. However, PW18 in his testimony deposed about his meeting with PW19 before that. As such, the testimony of PW18 to this effect is not reliable in nature. This also shows that there was no meeting of PW18 with PW19 as deposed by him. He also pleaded that PW18 in his cross examination deposed that he has not stated the facts narrated by PW19 in missing report Ex.PW3/A as he was not anticipating the death of his son, and DD entry was lodged keeping in mind that his son might not have met with any road accident. However, before that, the scooter of the deceased had already been traced out. It is no where the case of the PW18 that the said scooter was in damaged condition. In view of the foregoing discussions, he pleaded that the testimony of PW18 is not reliable in nature.
172. PW18 deposed that once they failed to trace out the deceased, they visited PS Sabji Mandi at about 2:45am and he lodged the missing report of the deceased Ex. PW3/A and had raised suspicion on the accused no.3. The said fact remained unrebutted. Hence, it can be held that the missing report was lodged earliest in time wherein name of the accused no. 3 as a suspect was specifically mentioned. By that time, no one had expected the murder of the deceased, a young boy aged about 1819 years, which was, otherwise also, very difficult for a father i.e. PW18 to expect so, therefore, merely a missing report was lodged. PW18, being the father of a young boy, whose son was missing that night may have stated the Page no.65 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave deceased might have met with an accident being under tension or upset and it is quite natural one.
173. Further, PW18 in his cross examination admitted one suggestion that before lodging the missing report Ex.PW3/A, they had already gone to the house of PW19 where he informed him that the deceased met the accused no.3 who was in the swift car with someone and was eating noodles and thereafter, they went to the house of the accused no.3 and made a call to him.
174. In view of the foregoing discussions, it can be held that merely because the details of the meeting with PW19, visit to the house of accused no.3, search for the deceased by them, the finding of the scooter without key of the deceased are not mentioned in the report are not the material omissions in the given circumstances. Even otherwise, there is no requirement in law that in the said missing report, all the facts as narrated by PW19 and other witnesses must have been mentioned. In fact, the scope of the missing report was very limited.
175. Merely because PW18 stated that the deceased was wearing pajama that night, though, he was found to have wearing the jeans is not the material contradiction to discredit his testimony because it stands proved that the deceased left that night. Rather, this substantiates the testimony of PW19 who stated that the deceased was wearing the TShirt and Jeans that day.
176. Counsel for the accused pleaded that PW3 in his cross examination deposed that he asked for the mobile phone number of the accused no. 3 from PW18 but he stated that he did not have the same. This fact shows that PW18 did not visit the house of the accused no. 3 that night. Once, the accused no.3 himself admitted the visit of PW18 at his house that night and that his mother had given his mobile phone number to them, the said plea is not sustainable in law.
177. Counsel for the accused pleaded that PW18 in his cross examination stated Page no.66 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave that on 18.07.2012 at about 7.30am, he met the accused no.3 in PS Sabji Mandi and by that time, the dead body of the deceased had not been recovered. This falsifies the claims of the prosecution that dead body of the deceased was found at 4:45am on 18.07.2012. There is no substance in the said plea raised by counsel for the accused because by that time, the dead body of the deceased was unidentified; and hue and cry notice & zipnet notice had already been issued to that effect. Even by that time, PW18 was not even aware that any such dead body had been found by the police.
TESTIMONY OF PW16
178. Counsel for the accused pleaded that PW16 has failed to mention the phone number from which he contacted PW19. The prosecution has also failed to prove that PW16 contacted various friends of the deceased. Hence, testimony of PW16 is not reliable in nature.
179. PW16 in his testimony deposed that once the deceased did not came back to the home by 11:00 pm, he contacted the deceased on his mobile phone number 8586807081 from his mobile phone number 9871410501 and the deceased told him that he would be returning in 15 minutes. In cross examination of PW16, no suggestion was given to him that the mobile phone number 9871410501 did not belong to him. As held in later part of the judgment, the mobile phone number 8586807081 belonged to the deceased and that intervening night, he was using the said number. CDR data Ex. PW2/K of the mobile phone number 8586807081 proves that on 17.07.2012 at 11.05.40 pm, one call was received on the mobile phone number 8586807081 from the mobile phone number 9871410501 and since thereafter, the mobile phone number 8586807081 remained switched off. Hence, it stands proved that PW16 made call to the deceased that night.
Page no.67 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
180. No doubt that the prosecution has not lead any evidence to prove that PW 16 contacted the friends of the deceased. However, the fact remains that as held above, the accused no.3 himself admitted that PW19 visited his place along with PW16 and PW18 and met his mother. This very fact proves that family members of the deceased had contacted PW19 who had given some clue to them that the deceased was with him and they met the accused no.3 and that's why they visited the house of accused no.3, otherwise there was no reason for them to visit the residence of the accused no.3 specifically. It is worth to note that their said visit was earliest in time. Therefore, it can be held that it was merely procedural lapses on the part of PW49 which is not material in the given circumstances.
181. Further, in cross examination, no suggestion was given to PW16 that he along with PW18 did not visit the place of PW19 or the accused no.3 or that they had not searched for the deceased in many areas. No suggestion was given to him that he had not made a call to the deceased at about 11:15pm.
182. Counsel for the accused pleaded that PW17 deposed that many public persons accompanied them in the search of the deceased at PS Sabji Mandi, however, PW49 has not examined the same. As held above, the missing report Ex. PW3/A stands proved. Hence, their non examination is not an material omission on the part of PW49. Further, it was the prerogative of PW49 to decide to whom to examine or not. As such, there is no substance in the said plea of counsel for the accused.
183. In view of the foregoing discussions, it can be held that the testimony of PW16 and PW18 is also trustworthy and reliable to this effect. Hence, it stands proved that in the intervening night of 17.07.2012 and 18.07.2012, the deceased along with PW19 met the accused no.3 who along with the accused no.1 was in the Swift Car at Malka Ganj Chowk.Accused no.3 told the deceased that he wanted to talk with him. At about 11:00pm, the deceased dropped PW19 at his house Page no.68 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave and left saying that he was going to meet the accused no.3. Once, the deceased did reach his house, at 11.05.20 pm, PW16 made a call from his mobile phone no.9871410509 on the mobile phone number of the deceased 8586807081. Once, the deceased did not come back to his house even thereafter, PW16 to PW18 reached at the house of PW19 and inquired from him about the whereabouts of the deceased. Thereafter, PW16, PW18 and PW19 visited the house of the accused no.3 but the accused no. 3 was not present at his house. They met mother of the accused no.3 who gave them the mobile phone of the accused no.3. However, on being contacted, the said mobile phone was found switched off. On search, PW18 found the scooter of the deceased without key at Gurudwara Chowk. Since the deceased could not be found, hence, PW18 lodged a missing complaint Ex. PW3/A at about 2.45 am at PS Sabji Mandi. However, it is evident from the record that PW19 had not seen the deceased in the company of the accused no.1 and 3 after the deceased had dropped him at his residence.
IDENTIFICATION
184. The question arises as to how the name of the accused persons came into picture and how their identity is proved in the present case.
185. As held above, in the missing report Ex.PW3/A, the accused no.3 was specifically named as the suspect. As such, name of the accused no.3 came into picture at earliest.
186. It is evident from the testimony of PW18, PW49 and DW4 and statement of the accused no. 3 u/s 313 CrPC that in the morning of 18.07.2012, the accused no. 3 visited PS Sabji Mandi for inquiry. It is also evident from the testimony of PW49 that from 18.07.2012 to 25.07.2012, the accused no.3 was called for investigation on several occasions at the police station. PW49 in his testimony Page no.69 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave specifically deposed that he also obtained the CDR data of the accused no.3 and made inquiries. It is also evident from the testimony of PW49 that during the said period, he also made effort to make inquiry from the accused no.1 and 4 however, they were not found at their respective houses. In his cross examination, the accused have not disputed the said facts. These facts are further substantiated from the reply of the accused no. 2 to the question no. 42 of her statement u/s 313 CrPC wherein she admitted that the police made inquiries about all the accused and did not deny that the accused no.1 and 4 were not found at their places. The accused have tried to build up a case that during the said period, the police exercised the pressure and illegally detained their family members, however, they have failed to prove the same. However, from the said suggestion it can be inferred that during the investigation, PW49 had come across some information against the accused no.1 and 4 also and therefore, he wanted to make inquiry from them, however, the same could not be done because they were not present at their houses. It is evident from the testimony of PW49, on 24.07.2012 and 25.07.2012, the accused no.1 and 4 also came to the police station and were interrogated. .
187. So far as the accused no.2 is concerned, PW49 specifically deposed that her name came in the disclosure statement of the accused no.1,3 and 4. As such, name of the accused no.2 was disclosed by the accused no.1,3 and 4 in their disclosure statements.
188. Before proceeding further, it is to ascertained as to whether all the accused were known to each other on or before the date of the incident.
189. Accused no.1 is the husband of the accused no.2. As such, they were known to each other on or before the date of incident.
190. As discussed in later part of the judgment, it is evident from the CDR data of the mobile phone of the accused persons that they were not only known to each Page no.70 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave other but also were in contact of each other at that night.
191. Further, in cross examination of PW49, one suggestion was given that the accused 1 to 4 were illegally detained in the police station since 6.00 am of 24.07.2012 after they were brought from Nepal Border. It implies that the accused no.3 and 4 were the friends of the accused no.1 and were also known to the accused no.2 on and before the date of incident. The acquaintance of the accused no.1 and 2 with the accused no.3 and 4 was to the extent that once the accused no.1 had gone to Nepal along with his wife i.e. the accused no.2 as alleged, he had taken the accused no.3 and 4 with them also and the accused no.2, being the only female, had no objection to joining of the accused no.3 and 4 with them. This proves that all the accused were known to each other and there existed good understanding among them and they were in comfort zone in the company of each other.
Test Identification Parade
192. Counsel for the accused pleaded that PW49 has not got conducted the Test Identification Parade (TIP) of the accused person, hence, their identification in the court is of no consequence.
192 A. In the judgment titled as "Mukesh v. State (NCT of Delhi)", reported in (2017) 6 SCC 1, the Hon'ble Supreme Court held:
144. In Malkhansingh v. State of M.P. [Malkhansingh v. State of M.P., (2003) 5 SCC 746 : 2003 SCC (Cri) 1247] , it has been held thus: (SCC pp. 75152, para 7) "7. ... The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investi gating agency to hold, or confers a right upon the accused to claim a test identifi cation parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. ..."
Page no.71 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave And again: (SCC p. 755, para 16) "16. It is well settled that the substantive evidence is the evidence of identifica tion in court and the test identification parade provides corroboration to the iden tification of the witness in court, if required. However, what weight must be at tached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. ..."
145. In this context, reference to a passage from Visveswaran v. State[Visveswaran v. State, (2003) 6 SCC 73 : 2003 SCC (Cri) 1270] would be apt. It is as follows: (SCC p. 78, para 11) "11. ... The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. ..."
193. In the above cited judgment, it was held that the identification of the accused in an identification parade is only a circumstance corroborative of the identification in the court. This a rule of prudence subject to exceptions.
194. As evident from the record, the accused no.3 was the childhood friend of PW19 and was specifically named as a suspect in the missing report Ex.PW3/A. Therefore, there was no need for TIP of the accused no.3.
195. Regarding the identity of the accused no. 1, case of the prosecution is that PW19 identified the accused no. 1 on 09.09.2012 and also in the court.
196. Counsel for the accused pleaded that according to PW19, the accused no. 3 met him while another boy kept sitting in the Swift Car. However, PW49 had made no effort to conduct the TIP of the accused no. 1 and 3. According to PW 19, PW49 visited his place and had shown him the document i.e. Ex.PW19/A and on that basis, he identified that another boy as the accused no.1. However, in Ex.PW19/A, only one photograph was shown and that was of the accused no.1. As such, the said identification is not reliable in nature. Even otherwise, the prose cution has failed to justify the delay in recording of the statement of PW19 to this Page no.72 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave effect on 09.09.2012. Hence, the identification of the accused no. 1 by PW19 on 09.09.2012 and in the court is doubtful.
197. Regarding TIP of the accused no.1, PW19 deposed that between 18.07.2012 and 09.09.2012, he visited PS Maurya Enclave 56 times but the accused no.1 and 3 were not shown to him for the purpose of the identification nor he was not called for their TIP at any point of time. On 09.09.2012, PW49 came to his house and showed 56 photographs and he identified the accused no.1 out of the said photographs.
198. As held above, name of the accused no.1 came into picture on the basis of the investigation conducted with the accused no.3. As discussed in later part of the judgment, the accused no.1 was arrested on 25.07.2012. Hence, it can be held that PW19 had no role to play in the arrest of the accused no. 1 so far as his identity is concerned. In other words, the accused no.1 had been arrested much prior to his identification by PW19. Prior to that, all the recoveries at the instance of the accused no.1 had been effected. As such, it is not the case where the accused no.1 was arrested on the basis of his identification by PW19 and thereafter, the recoveries were effected from him. On the contrary, it is a case where all the proceedings qua the accused no.1 had already been effected and his identification by PW19 came at the last.
199. Further, as discussed above, PW19 in his first statement specifically stated that that night, the accused no 3 was accompanied with one more person. In his cross examination, in response to a question, PW19 has shown his ignorance as to whether the accused no. 1 and 3 had also left Chowk of Gurudwara when he and the deceased left the said place. This very fact proves the presence of the accused no. 1 and 3 in the swift car and their meeting with PW19 and the deceased that night at Gurudwara Chowk. Therefore, even if it is presumed for the sake of arguments only that the mode and manner and time of identification of the accused no.1 by PW19 was not proper, but the same is not fatal to the case of Page no.73 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave prosecution because in view of the suggestions given to PW19, it stands proved that another boy who was sitting the swift car that night was the accused no. 1.
200. Regarding the identity of accused no.2, the prosecution relied upon the testimony of PW40 who identified the accused no.2 in the CCTV footage contained in CD Ex.P11 and also in the court.
201. Counsel for the accused raised the objection that according to the prosecution, on 26.07.2012, the accused no.2 disclosed a fact that she purchased 4 bandages and one suthol from Apollo Pharmacy and also pointed out the said pharmacy. Despite that PW49 made no effort to conduct the TIP of the accused no.2 through PW40.
202. In the present case, the accused no.2 had been arrested much prior to her identification by PW40. Prior to that, the recoveries at the instance of the accused no.2 had been effected. As such, it is not the case where the accused no.2 was arrested on the basis of her identification by PW40 and thereafter, the recoveries were effected at her instance. On the contrary, it is a case where all the proceedings qua the accused no.2 had already been effected and her identification by PW40 came at the last. As held in later part of the judgment, the CCTV footage seized from the said pharmacy stands proved and proves the presence of the accused no.2.
203. Regarding the identification of the accused no. 2 and 4, the prosecution examined the only eye witness PW23 who had seen them throwing the dead body of the deceased from the swift car. However, PW23 had not supported the case of the prosecution.
204. In view of the abovecited judgment and foregoing discussions, and on perusal of the record, it can be held that though the TIP of the accused no. 1, 2 and 4 was not got conducted by PW49 but the same is not fatal to the case of Page no.74 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave prosecution. Hence, the judgments State of U.P. vs Ashok Dixit (2033) 3 SCC 70 and Kanan and Others vs State of Kerala (1979) 3 SCC 319 relied upon by counsel for the accused are of no benefit to the accused persons.
PRESENCE OF THE ACCUSED PERSONS
205. Case of the prosecution is that in the intervening night of 17.07.2012 and 18.07.2012, PW19 abducted the accused no.1 & 3 at Malka Ganj Chowk and thereafter, they along with the accused no.2 and 4 committed the murder of the deceased.
206. The accused no. 1 to 4 raised the plea of alibi.
206 A. In the judgment Mukesh (supra), the Hon'ble Supreme Court held:
247. Presently, we shall deal with the plea of alibi as the same has been advanced with immense conviction. It is well settled in law that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. In this context, we may usefully reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar [Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 :
1997 SCC (Cri) 333] : (SCC p. 293, paras 2223) "22. We must bear in mind that an alibi is not an exception (special or gen eral) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evi dence recognised in Section 11 of the Evidence Act that facts which are inconsis tent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:
'(a) The question is whether A committed a crime at Calcutta on a certain date. The fact that, on that date, A was at Lahore is relevant.'
23. The Latin word alibi means "elsewhere" and that word is used for conve nience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely im probable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has Page no.75 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave been discharged by the prosecution satisfactorily. But once the prosecution suc ceeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counterevi dence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposi tion to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. ..."
THE ACCUSED NO. 3207. Counsel for the accused pleaded that in the intervening night of 17.07.2012 and 18.07.2012, the accused no.3 was not at the spot but he stayed at the residence of his sister at house no. 7/130, Sector6, Rohini, Delhi. To prove the same, he examined DW4.
208. To prove the plea of alibi, the accused no.3 examined DW4 (brotherin law/Jija of the accused no.3) who deposed that on 17.07.2012, the accused no.3 came to his house at 9:00 pm and slept at his house at Rohini that night.
209. In cross examination, DW4 deposed that mother of the accused no.3 called him at 7:30 am on 18.07.2012 and asked him to call at PS Sabji Mandi. Once he called on that phone number, he came to know that it was of PS Sabji Mandi and the police inquired about the accused no.3 from him. It is not the case of DW4 that mother of the accused no.3 contacted him since she was not able to contact the accused no.3 on his mobile phone. It is also not the case of DW4 that the mobile phone of the accused no.3 was not working that night, hence, she called on his mobile phone. It is very surprising that she did not ask anything about the accused no.3 at that time though the police and PW18 had been inquiring about Page no.76 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave the accused no.3 since that night. It is also very surprising that mother of the accused no.3 had not even tried to contact DW4 or her daughter i.e. wife of DW4 during that entire night to know about the whereabouts of the accused no.3 despite the fact that during the late night hours, PW16, PW18 and PW19 had visited her place to know about the accused no. 3 and she kept on waiting for the police call to that effect. It is even more surprising that according to DW4, even on 18.07.2012, the accused no.3 had not visited his house at Malka Ganj to meet his mother and even that night, he stayed at his house. Even mother of the accused no. 3 had made no attempt to meet her son, though, the police was enquiring about him.
210. DW4 further deposed that the accused no.3 was carrying his mobile phone when he along with him left his house at Rohini for PS Sabji Mandi at about 8:00 am on 18.07.2018. It implies that from the time when the accused no. 3 came to the house of DW4 till he left his house along with him, the said mobile phone remained with the accused no. 3 only. However, as per CDR data Ex.PW2/O, the mobile phone of the accused no.3 was switched on at 5:27am on 18.07.2012 and its location was shown at Malka Ganj. It is not the case of the accused no. 3 that in the meantime, his mobile phone being used by some other person. As such, the statement of DW4 is contrary to that effect.
211. Regarding the status of the mobile phone of the accused no.3, DW4 has nowhere stated that the said mobile phone was not working or its battery had been discharged or that during the said period, the accused no. 3 had charged his mobile phone. Hence, it implies that the accused no. 3 had deliberately switched off his mobile phone that night.
212. In view of the foregoing discussions, it can be held that DW4 is a interested witness. Testimony of DW4 is full of contradiction and is not reliable in nature. Hence, the accused no. 3 has failed to prove the plea of alibi.
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FIR No. 180/2012PS: Maurya Enclave THE ACCUSED NO.1, 2 AND 4
213. In cross examination of PW49, counsel for the accused tried to build up a case that the accused no. 1, 2 and 4 were in Nepal prior to the incident for their vacation or that they had been illegally detained since 24.07.2012 in his police station after they were illegally detained at the Nepal border while entering in India and gave the suggestion to him that effect which he denied. However, the accused no. 1 , 2 and 4 have not disclosed the exact date when they left from Delhi to Nepal and via which mode. The statement of the accused no. 1 and 2 u/s 313 CrPC is silent to this effect.
214. Accused no. 4 in reply to question no. 144, took a plea that on the date of incident, he was present at the house of his sister. Firstly, no such suggestion was given to any of the prosecution witness. Secondly, address of house of his sister was not mentioned. Thirdly, this is contrary to the suggestion given to PW49 that he along with the accused no.1 and 2 was on vacation at Nepal prior to date of incident. Fourthly, the accused no.4 has not led any evidence to prove the same. Fifthly, he has nowhere stated that the accused no. 1 and 2 were with him.
215. As discussed below, DW5 deposed that the accused no. 1 took his car to go to Nepal between 16.07.2012 and 20.07.2012. Firstly, he has not disclosed the exact date to this effect. Secondly, the said statement of DW5 is hearsay in nature. Thirdly, no such suggestion was given to any of the prosecution witnesses. Fourthly, the statement of the accused no. 1, 2 and 4 u/s 313 CrPC is silent to this effect.
CDR DATA
216. The prosecution also relied upon the CDR data of the mobile phones of the accused persons to prove their presence in Delhi and the spot at that night. It is evident from the testimony of PW25 which is corroborated with the testimony of Page no.78 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave PW43 and PW49 that the mobile phones of the accused no. 1 to 4 were seized as mentioned below:
(i) One mobile phone make Samsung of silver color (dual sim) Ex. P22 seized from the accused no. 3 vide seizure memo Ex. PW25/C.
(ii) One mobile phone make Nokia E63 Ex. P23 which was seized from the ac cused no. 1 vide seizure memo Ex. PW25/F.
(iii) Two mobile phones, one make Samsung of white color Ex. P24 and one make Spice of black color Ex. P25 which were seized from the accused no. 4 vide seizure memo Ex. PW25/J.
(iv) One mobile phone make I phone Ex. P21 which was seized from the accused no. 2 vide seizure memo Ex.PW25/Z6.
217. Accused no. 1 to 3 in their statement u/s 313 CrPC admitted seizure of their mobile phones. The accused no. 1 also admitted seizure of the mobile phones of the accused no.2 and 4. As such, seizure of the mobile phones of the accused persons stands proved.
218. PW2 proved that the mobile phone numbers 9999994129 and 9811149379 were issued in the name of the accused no. 1. PW7 also proved that the mobile phone number 9716444448 was issued in the name of the accused no. 1. In their testimony, no suggestions to the contrary were given. Further, the accused no. 1 in reply to question no. 110 and 111 of his statement u/s 313 CrPC admitted that the mobile phone numbers 9999994129 and 9716444448 were in his name and were used by him. He also admitted that the mobile number 9811149379 was also in his name but was used by the accused no.2 i.e. his wife. The accused no. 2 in her statement u/s 313 also admitted the said facts. Hence, it stands proved that the mobile phone numbers 9999994129, 9716444448 and 9811149379 were issued in the name of the accused no. 1, out of which first two mobile phone numbers were used by the accused no. 1 while the third number was used by the accused no. 2.
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FIR No. 180/2012PS: Maurya Enclave
219. PW2 proved that the mobile phone number 9999294987 was issued in the name of Seema. Case of the prosecution is that the said mobile phone number was issued in the name of mother of the accused no.3 but was used by the accused no.3 at the time of the incident. DW4 in his cross examination deposed that the accused no.3 was carrying his mobile phone having the number 9999294987 dur ing his stay at his home on 17.07.2012. Hence, it stands proved that the mobile phone number 9999294987 though was issued in the name of mother of the ac cused no. 3 but it was being used by the accused no.3 in the intervening night of 17.07.2012 and 18.07.2012.
220. PW6 proved that the mobile phone number 9990626272 was issued in the name of Dhaneshwar Nang. Case of the prosecution is that in the intervening night of incident, the accused no.4 was using the mobile phone no. 9990626272. PW 49 specifically deposed about the seizure of the mobile phone of the accused no.4 and usage of the said mobile phone number by him at the time of incident. The said testimony of PW49 remained unrebutted to this effect. Further, as held above, seizure of the mobile phone of the accused no.4 vide seizure memo Ex.PW 25/J stands proved. In the said seizure memo, the IMEI number of the Samsung mobile phone Ex.P25 seized from the accused no.4 was mentioned as 357125041750930. Perusal of the CDR data of the said mobile phone number Ex.PW6/C reveals that the mobile phone number 9990626272 was used on the mobile phone having the said IMEI number. It implies that the said mobile phone number was used on the mobile phone seized from the accused no.4. Hence, it can be held that the mobile phone number 9990626272 was being used by the ac cused no.4 in the said intervening night.
221. As held above, the mobile phone no.9999994129 was in the name of the accused no.1 and was used by him even on the date of the incident. As per the CDR data Ex.PW2/C, in the intervening night of 17.07.2012 and 18.07.2012, Page no.80 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave between 23:30:45 hrs. and 00:27:20 hrs., there was exchange of 15 calls on the mobile phone no. 9811149379 i.e. the mobile phone number used by the accused no.2. The location of both the said numbers was at Sector 15, Rohini Delhi where the house of the accused no.1 and 2 was located. It is very strange that the husband and wife were in the same area where their house was located but were communicating so frequently on their mobile phones. This shows that the accused no.1 was not inside his house. Rather, he was communicating with the accused no.2 from outside his house but from the same area. The accused no.1 and 2 have failed to disclose as to what was the reason due to which they were communicating through the mobile phones despite the fact that they were in the same locality.
222. As held above, the mobile phone number 9717444448 was issued in the name of accused no.1. Perusal of the CDR data Ex.PW2/C reveals that between 00:40:24 hrs. and 2:3214 hrs. that night, 18 calls were exchanged between this number and 9999994129. During the said period, the location of mobile phone number 9717444448 was at house no. C2/24, Sector 15 Rohini, Delhi110085 i.e. the area where the house of the accused no. 1 and 2 was situated. However, the location of the mobile phone number 9999994129 started changing from Sector 15, Rohini at 00.40.24 hrs. to Faridabad Sector 37 market at 1:58.38 and then from Faridabad to Delhi where its location is shown at Pitampura, Delhi at 2:34.14 hrs. when this mobile phone was switched off. It cannot be believed that both the said numbers belonging to the accused no.1 were used by him only during the said period. Further, as per the CDR data Ex.PW2/C, at 00:29.58 hrs., one call was made from the mobile phone number 9999994129 to 9990626272 i.e. the mobile phone number used by the accused no.4 and location of the mobile phone number 9999994129 was at Sector 15 Rohini, Delhi. As per CDR data Ex. PW2/G, at about 00.28:43 hrs., one call was made from the mobile phone number 9717444448 to 9811149379 i.e. from the mobile phone number used by the accused no.1 to the mobile phone number used by the accused no. 2 and location of both the mobile phone numbers was at Sector 15 Rohini, Delhi. It implies that Page no.81 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave at a particular period, the three mobile phone numbers 9717444448, 9811149379 and 9999994129 were used from the same area almost at same time. It is not the case of the accused no.2 that she ever used the mobile phone number 9717444448. Rather, she was communicating with the accused no. 1 on his mobile phone number 9999994129. As revealed from CDR data Ex.PW6/C, that time, the location of the mobile phone number used by accused no.4 was at Faridabad. Now the question arises who was using the mobile phone number 9717444448 that night at Sector 15 Rohini, Delhi. According to the prosecution, it was the accused no.3 who was using that mobile phone that time. In view of the foregoing discussion, it can be held that there was no possibility that the said mobile phone number was used by the accused no.1, 2 or 4 that time. Therefore, in the given circumstances, the only inference which can be drawn is that it was the accused no.3 who was using that mobile number and his position was at Sector 15 Rohini, Delhi. So far as the accused no.1 is concerned, he moved from Sector 15, Rohini, Delhi and reached at Faridabad.
223. As per CDR data Ex.PW2/O and Ex.PW7/C, the location of mobile phone number 9999294987 and mobile phone number 9717444448 was at Sector 15 Rohini, Delhi at 8:07 pm on 17.07.2012 when both the said phones were simultaneously switched over. As held above, at 12:40:24 am on 18.07.2012, the mobile phone number 9717444448 was switched on and thereafter, there was continuous communication through the said mobile phone number on the mobile phone no. 9999994129. It is not the case of the accused no.1 that at 8:07pm, the battery of his mobile phone was discharged, therefore, it was switched off and thereafter, he recharged the battery and switched on the said number. Similarly, it is not the case of the accused no. 3 that the battery of his mobile phone was discharged, hence, it was switched off and thereafter, he recharged the battery and the said mobile phone was switched on at 5:27 am on 18.07.2012. It implies that the switching off the said mobile phone numbers at that time was not mere a coincidence. Rather, the accused no.1 & 3 had deliberately switched off their mobile phone. Hence, it can be inferred that at that time, the accused no.1 and Page no.82 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave 3 were together.
224. In cross examination, PW49 specifically deposed that during the investigation, he received the CDR data of all the accused persons. In his cross examination, no suggestion was given that the accused persons were not using the mobile phone numbers as deposed by him on the date of incident. In his cross examination, no suggestion was given that the CDR data showing the manner of usages of the mobile phone of the accused on the date of incident was incorrect. In fact, counsel for the accused has not raised any plea to question the usage of the said mobile phone numbers, their connection with the accused persons as stated by PW49 and their locations.
225. PW49 in his cross examination denied a suggestion that it was his presumption that the mobile phone numbers mentioned in the charge sheet were switched off on various dates. As held above, CDR data proved by the prosecution reveals the usage of the mobile phones of the accused. Hence, it was for the accused persons to discharge their onus as to how their mobile phones were switched off at a particular time and then how it were switched on at a particular time. However, they have failed to discharge the said onus.
225. In view of the above cited judgment and foregoing discussions, it can be held that DW4 and DW5 are the interested witnesses. Their testimony is contrary to the judicial record. Hence, their testimony is not reliable in nature. Hence, the accused have failed to prove the plea of alibi.
ACCENT CAR
226. Case of the prosecution is that the accent car registration no. DL4CAJ9666 Ex. P1 belonged to PW14, father of the accused no.1 and at the night of incident, the accused no.1 and 2 used the said car to go to Faridabad from Delhi to pick the accused no.4 and after picking him, they came back to Delhi.
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227. PW14 in his testimony specifically deposed that the accent car belonged to him. As such, ownership of the accent car stands proved.
228. The prosecution examined PW45 to prove that the accent car crossed the Lane no. 13 of Toll Plaza at Sarai (Faridabad) on 18.07.2012 from Delhi to Faridabad at 1:29:22 hrs. and returned from Faridabad to Delhi from same Toll Plaza through Lane no. 6 on 18.07.2012 at around 1:57:23 hrs.. PW45 relied upon the mails Mark PW45/A & Mark PW45/B; and printout of system generated reports Mark PW45/C and Mark PW45/D respectively to prove the same. However, the said documents are not proved by the prosecution as per law. Further, no certificate u/s 65B of Evidence Act was filed along with the reports generated from the computer. Hence, the said reports cannot be considered in the evidence. Hence, the testimony of PW45 is of no benefit for the prosecution.
229. In the present case, to prove the visit of the accused no. 1 to Faridabad, the prosecution also relied upon the CDR data of the mobile phone no. 9999994129 Ex. PW2/C.
230. As held above, the mobile phone no. 9999994129 stood in the name of the accused no. 1 and was used by him.
231. As held above, the mobile phone number 9990626272 was used by the accused no.4.
232. Perusal of the CDR data Ex. Ex. PW2/C reveals that in the said intervening night, the location of the mobile phone number 9999994129 started changing from Sector 15, Rohini at 00.40.24 hrs. to Faridabad Sector 37 market at 1:58.38 hrs. and then from Faridabad to Delhi where its location is shown at Pitampura, Delhi at 2:34.14 hrs. when this mobile phone was switched off. As revealed from CDR data Ex. PW6/C and the record, from 17.07.2012 at 11.44.59 pm to Page no.84 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave 18.07.2012 at 01.37.15 am, the location of the mobile phone number 9990626272 was at Faridabad and there were total 12 calls between the said two mobile phone numbers during the said period. At one point of time i.e. at about 01:37:15 hrs. on 18.07.2012, the location of both the said mobile phone numbers was at Sector 21, Faridabad. It is not the case of the accused no.1 and 4 that their said mobile phones were not with them that night or that the said mobile phones or the mobile phone numbers were being used by some other person and not by them. It implies that it was the accused no.1 who was using the mobile phone number 9999994129 while the accused no.2 was using the mobile phone number 9990626272 that night. Hence, it stands proved that the accused no.1 visited Faridabad to pick the accused no.4.
233. Now the question arises whether the accused no.2 had accompanied the ac cused no.1 when he left for Faridabad to pick the accused no.4.
234. As held above, as per the CDR data Ex.PW2/C, that night, between 23:30:45 hrs. and 00:27:20 hrs., the accused no. 1 and 2 were frequently talking with each other through their mobile phones that night. Their location was at Sector 15, Rohini Delhi. As per the CDR data Ex.PW2/G, at 00:40.03 hrs., one call was made from the mobile phone number 9717444448 to 9811149379 i.e. the mobile phone used by the accused no.2 that time and the call duration was 72 seconds and location of both the said mobile phone number was at Sector 15 Rohini, Delhi. Thereafter, the mobile phone of the accused no.2 was switched off all of a sudden. It is surprising that the accused no.2, wife of accused no.1, was talking to him so frequently, which shows that there was some urgency, but after 00:40:03 hrs., switched off her mobile phone and she had not contacted the accused no.1 on his mobile phone. The said conduct of the accused no.2 being a wife is very unnatural. In the given circumstances, it can be inferred that once the accused no.1 left for Faridabad, the accused no.2 was with him, therefore, there was no need for her to make a call to the accused the no.1. Hence, it can be held Page no.85 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave that once the accused no.1 visited Faridabad, the accused no.2 was along with him.
235. Now the onus has shifted upon the accused no.1 to explain as to how i.e. via which mod he had reached at Faridabad and for what purpose. However, the accused no.1 has completely failed to answer the same. Time period shown in the CDR data Ex. PW2/C to reach Faridabad from Delhi and to come back to Delhi, reveals that the accused no. 1 had not used the public transport for the said purpose. Further, it is nowhere the case of the accused no.1 that the accent car remained in Rohini Delhi only on that night.
236. In view of the forgoing discussions, it can be inferred that in the intervening night of 17.07.2012 and 18.07.2012, the accused no.1 had used the accent car which belonged to his father, to go to Faridabad from Delhi to pick the accused no. 4 and that time, the accused no.2 had also accompanied the accused no.1.
CCTV FOOTAGE
237. Case of the prosecution is that in the intervening night of 17.07.2012 and 18.07.2012, the accused no.2 had visited Apollo Pharmacy outlet situated at NorthEx Mall, Sector9, Rohini, Delhi from where she purchased the suthol liquid/spray and 4 bandages. During investigation, the pointing out memo Ex.PW 25/Z2 was prepared at the instance of the accused no.2. To prove the said facts, the prosecution examined PW38, PW39 and PW40 and relied upon the CD Ex. P11.
238. Counsel for the accused pleaded that according to the prosecution, the ac cused no.2 made the disclosure statement on 26.07.2012 wherein she stated that in the intervening night of 17.07.2012 and 18.07.2012, she purchased the ban dages and suthol from the Apollo Pharmacy, NorthEx Mall, Sector9, Rohini, Page no.86 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave Delhi and also pointed out that place to PW49 vide pointing out memo Ex. PW25/Z8. According to PW40, the inquiry was made from him to this effect on 07.09.2012. As such, PW49 had delayed in recording his statement.
239. Counsel for the accused also pleaded that according to PW38, PW39 handed over him the CD Ex.P11. On the contrary, PW39 stated that he had not handed over the said CD to him. As such, there exists contradiction.
240. Counsel for the accused pleaded that in ever system, the CCTV Footage can be stored for 30 days only. As such, CCTV footage provided in the court is a forged one.
241. Counsel for the accused further pleaded that according to PW40, he gener ated the bill Ex. PW40/C on 07.09.2012. As per the said bill, one customer Somvir visited the said outset and purchased some articles. According to PW40, he pre pared a consolidated bill in the name of Somvir wherein at serial no. 5 and 6, the bandages and suthol purchased by the lady who visited the outlet, had been men tioned. However, according to the said bill, the entire payment was made through ATM card. Therefore, even if it presumed that a consolidated bill was prepared at subsequently stage, then, why the alleged Somvir would pay the entire payment via ATM card. Further, Somvir has not been examined at all. Hence, the bill Ex.PW40/C is a forged and fabricated bill.
242. As held below, it stands proved that the accused no. 2 made the disclosure statement.
243. PW25 in his testimony specifically deposed that in pursuance to the disclo sure statement, the accused no. 2 had led them at NorthEx Mall, Sector9, Rohini and pointed out at the Apollo Pharmacy, from where, she had purchased the ban Page no.87 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave dage and Suthol in the said night. PW 49 prepared pointing out memo Ex. PW25/Z8. PW43 and PW49 in their testimony also deposed to that effect.
244. In cross examination, PW25 deposed that PW49 did not record any pro ceeding except pointing out memo in the Apollo pharmacy. No suggestion to the contrary was given. In cross examination of PW25 and PW43, no suggestion was given that the accused no.2 had not pointed out the pharmacy shop at North Ex Mall or that the said pointing out memo is a forged and fabricated documents.
245. To this effect, PW49 deposed that he prepared the said pointing out memo which also borne his signature at point B. In his cross examination, one suggestion was given that the said memo is manipulated and fabricated document. However, no such suggestion was given to PW25 and PW43.
246. It is nowhere the case of the accused that PW49 knew about visit of the ac cused no. 2 at the said pharmacy that night and purchases made from there. Hence, it can be held that PW49 came to know the said fact in pursuance to the disclosure statement made by the accused no. 2 and thereafter, she led them to the said pharmacy and pointed out that place.
247. It is evident from the testimony of PW38, PW39 and PW40 that during the relevant period, they all were associated with the Apollo Pharmacy in their official capacity. The accused have failed to rebut the said fact.
248. It is also evident from the testimony of PW40 that in the intervening night of 17.07.2012 and 18.07.2012, he was on night duty at the said outlet of the Apollo Pharmacy. This fact is further substantiated from the attendance record Ex.PW40/B. In cross examination of PW40, no suggestion to the contrary was Page no.88 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave given by counsel for the accused. The accused have also not questioned the authenticity of the said attendance record. Hence, it stands proved that in the intervening night of 17.07.2012 and 18.07.2012, PW40 was on duty at the said outlet.
249. As evident from the testimony of PW38 and 39, on 04.09.2012, for the first time, they got a query from the police regarding availability of the CCTV camera at the said outlet and footage of one particular date and to provide the said CCTV footage, if available. Therefore, merely because no such written request was produced on record is not relevant since in their cross examination, no suggestion was put to them to discredit their testimony to this effect. Hence, it can be held that on 04.09.2012, PW49 contacted the official of the said pharmacy and made inquiry about the availability of the CCTV and its footage of the intervening night of 17.07.2012 and 18.07.2012. It is also evident from the testimony of PW38 that he apprised the police about the availability of the CCTV footage of that day. No suggestion to the contrary was given to the said witness in his cross examination.
250. According to PW39, the requisite footage as authentically retrieved from the hard disc of Apollo Pharmacy situated at shop no. A16, North Exr. Mall Sector9 Rohini and was put in the compact disc (CD). As evident from the cross examination of PW39, he called for DVR from the concerned outlet and he did not prepare any CD before 05.09.2012. As held above, PW39 received the first request to this effect from the police on 04.09.2012. In view of the said testimony, it can be held that PW39 called for DVR from the concerned outlet on 05.09.2012 and before that no CD was prepared from the same. Further, CD Ex.P11 was prepared from the said DVR but not before 05.09.2012. In other words, CD Ex.P11 was the first CD of the said footage from the DVR for that particular period and that was prepared by PW39 from the hard disc received from the said outlet. To this effect, PW38 deposed that such footage was put in CD by PW39, the I.T. Head. In his cross examination, no suggestion to the contrary was given.
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251. It is evident from the testimony of PW38 and PW40 that on 07.09.2012, the said CD was seized vide seizure memo Ex.PW38/A on 07.09.2012. In their cross examination, no suggestion to the contrary was given. Hence, it can be held that CD was seized by PW49 on 07.09.2012 vide seizure memo Ex.PW38/A and authenticity of the said seizure memo remained unrebutted in their testimony. As held above, the preparation of the CD and its seizure by the official of the Apollo Pharmacy stands proved. Therefore, the minor contradiction in the testimony of PW38 and PW39 as to who handed over the said CD to PW38 is not the material contradiction to discredit their testimony.
252. In view of the foregoing discussions, it can be held that at the request of PW49, PW39 prepared the CD Ex.P11 containing the CCTV footage of the inter vening night of 17.07.2012 and 18.07.2012 which was seized by PW49 vide seizure memo Ex.PW38/A. In support the said CD, PW 39 produced the certificate u/s 65B Indian Evidence Act Ex.PW39/A.
253. Counsel for the accused questioned the admissibility of the said CD in the evidence on the ground that certificate u/s 65B Evidence Act filed in support thereof was not produced by PW39 at the time of seizure of the CD. Further, the said certificate is not in compliance of the provision of section 65B(4) Evidence Act. Therefore, the CD Ex.P11 is of no consequence. In support of his submissions, counsel for the accused relied upon judgment titled as "Anwar P.V. vs. P.K.Basheer and others", reported in (2014) 10 SCC 473.
254. It is evident from the record that a certificate u/s 65B Evidence Act dated 16.10.2012 Ex. 39/A was filed in support of the said CD. As such, that certificate was not handed over along with handing over of the said CD and its seizure memo by PW49. In the judgment tiled as "Eli Lilly and company vs. Maiden Pharmaceuticals Limited" reported in (2016) 235 DLT 381, the Hon'ble Delhi Page no.90 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave High Court held that the certificate under section 65B of Indian Evidence Act, 1872 can be filed even at the stage of evidence. In the present case, the said certificate was filed by PW39 much before that. As such, there is no substance in the said plea raised by counsel for the accused.
255. Admittedly, PW39 has filed the certificate u/s 65B (4) of Indian Evidence Act, 1872. In terms of the said provision, one of the things mentioned in section 65B (4) of the said Act and competency of the person filing the certificate is to be specifically mentioned. In his cross examination, he specifically deposed that he called for DVR from the concerned outlet. In the certificate Ex. PW39/A, PW39 specifically mentioned that CD was prepared from the original hard disk contain ing CCTV footage for the relevant period of the said pharmacy was original and authentic. No suggestion to the contrary was given to PW39. No suggestion was given to PW39 that there was tampering with the CD P11.
256. Further, in cross examination, no suggestion was given to PW39 who prepared the CD that the CD prepared was a fabricated or the manufactured one or he had played mischief with the contents of the hard disc from which the CD was prepared. No suggestion was given to PW38 or PW40 that they had tampered with the CCTV footage and thereafter, prepared the CD from the same. Hence, the objections raised by the counsel for the accused regarding the admissibility of the CD Ex.P11 are not sustainable in law.
257. PW40 specifically deposed that at about 2:45 am, one lady customer came to the said outlet and purchased one liquid suthol and 4 bandages. That lady looked to be in hurry and was looking outside. She paid Rs.50/ for the said items. She remained in the shop for about four minutes and then left. In cross examina tion of PW40, no suggestion was given the no lady customer had visited the said outlet and purchased the suthol liquid and four bandages as deposed by him dur ing the said period at that night.
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258. Now the question arises, who was that lady?
259. PW40 deposed that it was the accused no.2 and he identified her on two accounts (i) on the basis of the dossier shown to him, and (ii) on the basis of the CCTV Footage.
260. Regarding the identity of the lady shown in the CD Ex.P11, PW40 deposed that before handing over the said CD to PW49, it was played and he had seen the said footage. He was also shown some dossiers of some ladies as produced by PW49 and he identified the photograph of that lady customer in one such dossiers and that lady customer was visible in CCTV footage also. Not only that PW40 had described the demeanor of the said lady that night. Counsel for the accused no.2 has not cross examined the said witness to that effect. No suggestion was given to PW40 that the accused no.2 had not visited the said outlet at all or that she had not purchased 4 bandages and one liquid suthol and paid a sum of Rs.50/ for the same. As such, testimony of PW40 to that effect remain unrebutted. He identi fied the accused no.2 as that lady in the court.
261. PW40 also deposed that as seen in the said CD, that lady was wearing one white colour top and black trouser and identified that top as Ex.P12 and that lower as Ex.P13. In his cross examination, one suggestion was given that he iden tified the cloths at the instance of the PW49. However, no suggestion was given to him that the clothes worn by the lady as shown in the CCTV footage were not the same cloths as identified by him as Ex.P12 and PW13 in the court. As discussed in later part of the judgment, it stands proved that the said clothes belong to the accused no. 2 and had the blood stains of the deceased.
262. In cross examination, no suggestion was given to PW40 that the lady shown in that CCTV footage is not the accused no.2 but is some other lady.
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263. In his cross examination, PW49 specifically deposed that he took the ac cused no.2 to Apollo Pharmacy for the first time on 26.07.2012 after her arrest at about 88:30pm. As such, PW49 took the accused no. 2 to the said pharmacy at earliest. He deposed that as per the statement of PW40, the accused no.2 entered the pharmacy at 2:43:30am and exited at 2:46:33 am. No suggestion to the con trary was given. No suggestion was given to PW49 that the accused no.2 had not visited the said pharmacy in the intervening night of 17/18.07.2012 at all. PW49 deposed that he knew about the CCTV footage prior to 07.09.2012 but the same could not be seized earlier as there server was at Sarai Kale Khan. No suggestion to the contrary was given. He denied a suggestion that the fact of the lady shown in the said CCTV footage is a morphed footage. Firstly, vide said suggestion, the accused admitted seizure of CCTV. Secondly, no suggestion to this effect was given to PW38 to PW40. Thirdly, as held above, there was no tampering with the same. The accused have failed to prove that it was the morphed one. Further, no suggestion was given to PW49 that he had deliberately delayed in examining PW38 to PW40. No suggestion was given to PW49 that in ever system, the CCTV footage can be stored for 30 days only and since in the present case, it was ob tained after 30 days, hence, CCTV footage provided in the court is a forged one. More so, the accused has failed to prove the said fact.
264. Accused no.2 in his statement u/s 313 CrPC has merely denied the said facts. Accused no. 2 in reply to question no. 98 & 101 of her statement u/s 313 CrPC, regarding the CCTV Footage in CD Ex.P11, she showed her ignorance. She had not stated that she had not visited the said pharmacy and that the said picture was not of her or that the said CCTV footage was tampered one or her face has been morphed.
265. Perusal of the CCTV Footage contained in CD Ex.P11 reveals that the accused no.2 entered the said pharmacy at 2.43.30 hrs. and left at 2.46.29 hrs. on 18.07.2012. During the said period, she had picked up certain items and then Page no.93 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave purchased the same from the said pharmacy by paying certain amount to the attendant at the said pharmacy and then left the pharmacy.
266. Case of the prosecution is that the accused no.2 purchased four bandages and one suthol liquid/spray. In the CD Ex. P11, it is clearly visible that the accused no.2 purchased some items from the said pharmacy. Hence, the onus has shifted upon the accused no.2 to prove as to what she had purchased that time, if not four bandages and suthol liquid as stated by the prosecution, which she has failed to discharge. The accused no.2 has failed to disclose as to why she had paid the amount to the attendant at the said pharmacy if she had not purchased anything as argued before this court. It is apparent that the accused left the said outlet without obtaining the receipt of the payment. In view of the foregoing discussions, the visit of accused no.2 to the said pharmacy, purchase of four bandages and suthol and payment made by her stand proved. Therefore, the discrepancy in the purchase bill Ex.PW40/C if any, as pointed out by the counsel for the accused is of no consequence. This fact also proves that the accused no.2 was present in Delhi in the intervening night of 17.07.2012 and 18.07.2012.
267. Now the question arises whether the accused no. 2 was alone during the said visit to the pharmacy or was accompanied by the other accused persons.
268. It is evident from the record that the residence of the accused no.2 was at Sector 15 Rohini and the said outlet was at Sector 9 Rohini. The accused no.2 has failed to disclose as to what was the urgency which forced her to visit the said outlet which was at a considerable distance from her house that too at the dead night hours. Secondly, the items purchased by the accused no.2 were not in the nature of life saving drugs, therefore, the accused no.2 had to disclose the reason to purchase such items, which she has failed to disclose. As discussed above, there was a considerable distance between the house of the accused no.2 and the said outlet, hence, the accused no.2 must not have visited the said outlet alone. Even otherwise, it is not the case of the accused no.2 that her husband i.e. the accused Page no.94 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave no.1 was at the home. It implies that once the accused no.2 visited the said outlet, she was accompanied by the accused no.1.
269. As per the CDR data Ex.PW2/C the mobile phone number 9999994129 was switched off at 2:32:14 hrs. on 18.7.2012 and its location was Pitampura Delhi.
270. As per the CDR data Ex.PW2/G, the mobile phone number 9811149379 was switched off at 00:40:00 hrs. on 18.7.2012 and its location was Sector 15, Rohini, Delhi.
271. As per the CDR data Ex.PW6/C the mobile phone number 9990626272 was switched off at 1:37:15 hrs. on 18.7.2012 and its location was Sector 21, Faridabad. As held above, thereafter, the accused no.2 had accompanied the accused no.1 to Faridabad from where they along with accused no.4 came back to Delhi. In view of the foregoing discussions, it can be held that at 2:34:14 hrs. on 18.07.2012, the accused no.1, 2 and 4 were together at Pitampura, Delhi.
272. As per CDR data Ex.PW7/C, the mobile phone number 9717444448 was switched off at 2:31:10 hrs on 18.7.2012 and its location was at Sector 15, Rohini Delhi.
273. In view of the foregoing discussions, it can be held that prior to switching off all the said mobile phones, there was active and very frequent communications from the mobile phone number 9999994129 on the other three mobile phone numbers i.e. 9999294987, 9717444448 and 9990626272 in that night. However, all of the sudden, the said mobile phones were switched off. In the given circumstance, it can be held that it was not a mere coincidence. On the other hand, the accused have failed to give any explanation for the same. Hence, it can be held that the same were deliberately switched off by the accused persons.
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274. In view of the foregoing discussions, it can be held that once, the accused no. 2 visited the said pharmacy, she was accompanied by not only the accused no. 1 but also the accused no. 3 and 4.
275. The question arises as to why the accused no.2 had purchased the said items. If the deceased had died before 2.43.30 hrs. on 18.07.2012, then there was not need to purchase the bandages from the said outlet because there cannot be any resistance from the deceased. Hence, purchasing of the bandages implies that the same were purchased to have control over the deceased. As evident from the testimony of PW42, both the hands of the deceased were found tied behind his back with the crape bandage and his mount and eyes were found wrapped with the doctor tape. Meaning thereby by that time the deceased was alive.
276. As per the CDR data of the above said mobile phone numbers, all the said mobile phones were not switched on before 4:30am of 18.07.2012.
277. It is evident from the record that at about 4.27 am, PW5 received the information through wireless from the control room regarding a dead body lying at the spot which was identified as that of the deceased. As held above, that time, all the above mobile numbers were switched off. As held above, at about 2.43.30 hrs. on 18.07.2012, the deceased was alive. It implies that the murder of the deceased was committed between 2.43.30 am and 4.30 am on 18.07.2012., the period during which all the said mobile numbers remained switched off. It is very surprising that all the accused persons who were communicating with each other through their mobile phone numbers very frequently and actively, after a particular period they had not contacted each other and their mobile phones were switched off. In the given circumstances, it can be held that it was not mere a coincidence. Rather, the same were switched off by the accused persons in a planed manner. On the other hand, the accused have failed to give any Page no.96 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave explanation to this effect. As such, an adverse inference can be drawn against them. Further, the accused persons have failed to disclose the urgency in calling each other so actively and frequently. All the accused persons have also failed to explain as to why they were out of their houses at that night. As such, an adverse inference can be drawn against all the accused.
ARREST OF THE ACCUSED PERSONS
278. Case of the prosecution is that that on 25.07.2012, firstly, PW49 arrested the accused no.3 vide arrest memo Ex.PW25/A; secondly, he arrested the accused no.1 vide memo Ex.PW25/D; and thirdly, he arrested the accused no.4 vide arrest memo Ex.PW25/G. Lastly, the accused no.3 was arrested vide arrest memo Ex.PW25/Z4 on 26.07.2012. To prove the arrest of the accused no. 1 to 4, the prosecution examined PW25, PW43 and PW49.
279. On the contrary, counsel for the accused hotly contested the point of arrest of the accused no. 1 to 4 and vehemently pleaded that the accused no.3 had been illegally detained from 18.07.2012 to 25.07.2012, however, PW49 has shown his arrest on 25.07.2012 at PS Maurya Enclave. Regarding the arrest of the accused no.1, 2 and 4, he pleaded that the said accused were apprehended at Nepal Boarder when they were entering in India. Thereafter, the said accused were brought in Delhi and were illegally detained in the police station from 24.07.2012 till their arrest as shown in their respective arrest memos i.e. the arrest of the ac cused no. 1 and 4 as shown on 25.07.2012 and that of the accused no. 2 as shown on 26.07.2012 at Delhi. To prove the same, the accused examined DW4 to DW5.
280. Testimony of PW25, PW43 and PW49 remained consistent and corrobo rated each other in material particulars regarding the arrest of the accused no.1 to
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281. Perusal of the arrest memos of the accused no. 3, the accused no. 1 and the accused no. 4 Ex. PW25/A, Ex. PW25/D and Ex. PW25/G respectively reveal the time of arrest of the accused no. 3 at 5.15 pm, that of the accused no. 1 at 5.30 pm and that of the accused no. 4 at 5.45 pm on 25.07.2012 at PS Maurya Enclave. The said memos bear the signature of the respective accused. No specific sugges tion was given to PW25 or PW49 that those signatures were not that of the ac cused no. 1, 3 and 4 or their signatures were forcibly obtained on the said memos. Even, the statement of the said accused persons u/s 313 is silent to this effect. Hence, it can be held that the said memos bear the signature of the respective ac cused and each accused had voluntarily signed the same.
282. Perusal of the record reveals that on 05.02.2014, the accused no.1 and 2 moved an application under 91 of CrPC seeking production of the call details record of the mobile phone numbers mentioned therein from 17.07.2012 to 26.07.2017. In para no.2 of the said application, it is mentioned that on 22.07.2012, the accused no.1 and 2 were forcibly and illegally arrested from Nepal where they had gone for a vacation. Thereafter, on 23.11.2012, they were brought in India and were detained in India till 25.11.2012 and 26.11.2012. It is evident from the record that the accused no.1 and 2 have wrongly mentioned the dates as 23.11.2012, 25.11.2012 and 26.11.2012 instead of 23.07.2012, 25.07.2012 and 26.07.2012. Hence, the said dates are read accordingly. As such, according to the accused no.1 and 2, they had gone to Nepal for a vacation where they were arrested on 22.07.2012; and subsequently, they were brought to India on 23.07.2012 and were detained till 25.07.2012 and 26.07.2012. In the said application, the accused no. 1 and 2 have not mentioned the date and time when they left from Delhi to Nepal. The said application is completely silent that that time the accused no. 4 had also accompanied them from Delhi to Nepal or that he joined them in Nepal and thereafter, he was also illegally detained along with them and was brought to Delhi.
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283. On 02.02.2018, the accused moved an application under 233 (3) CrPC and in para no.11 of the said application, it is mentioned that the accused no.1, 2 and 4 were taken from Nepal boarder on 24.07.2012. As discussed above, in application dated 05.02.2014, there was no mention of the accused no. 4. Further, there exists contradiction in the averments made in both the applications as to when the accused no.1, 2 and 4 were arrested i.e. on 22.07.2012 or 24.07.2012 and from where i.e. whether in Nepal or on Nepal boarder.
284. Regarding the arrest of the accused no. 1, 2 and 4, in cross examination of PW25, one suggestion was given which he denied that the accused no.1, 2 and 4 were brought from Uttrakhand in the night of 23.07.2012 or that they were ille gally detained till 25.07.2012. Firstly, the said suggestions are contrary to the stand taken by the said accused in the applications dated 05.02.2014 and 02.02.2018 as mentioned above. Secondly, if the accused no.2 was illegally de tained from 23.07.2012 till 25.07.2012, then PW49 could not have shown arrest on 26.07.2012 because it is not the case of the accused no.2 that she was freed on 25.07.2012 and thereafter, was arrested on 26.07.2012.
285. In cross examination of PW28, counsel for the accused gave a suggestion which he denied that the accused no.1 was at the police station on 23.07.2012 and he had even met him and talked to him. This suggestion shows that according to the accused, the accused no. 1 was in the police station on 23.07.2012. However, this is contrary to the case of the accused no. 1 and 2 that on 23.07.2012, they were in Nepal and were apprehended over there.
286. In cross examination of PW43, one suggestion was given which she denied that the accused no.2 was detained in the police station since 23.07.2012 and her Page no.99 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave arrest memo was got signed by her under duress and threat of third degree. Firstly, the said suggestion is contrary to the stand taken by the said accused in the applications dated 05.02.2014 and 02.02.2018 as mentioned above. Secondly, no such suggestion was given to PW25. Thirdly, the said suggestion implies that since 23.07.2012, the accused no.2 was illegally detained which continued till her ar rest as shown in her arrest memo Ex.PW25/Z4 i.e. on 26.07.2012. However, the said suggestion is contrary to the suggestion given to PW25 that the accused no.2 was illegally detained till 25.07.2012. Fourthly, no suggestion was given to PW43 that the accused no.2 was illegally detained at Uttrakhand as given to PW25. Fifthly, no suggestion was given to her that the accused no. 2 was illegally lifted from Nepal border while she along with the accused no. 1 and 4 was entering in India as given to PW49.
287. To this effect, in cross examination of PW49, one suggestion was given which he denied that the accused no.1, 2 and 4 were brought from Nepal Boarder while they were entering in India and apprehended by his colleagues and were brought to Delhi. However, no such suggestion was given to PW25 and PW43. In his cross examination, PW49 denied one suggestion that they were illegally de tained in the police station from 24.07.2012 to the time when their arrest were shown in the said arrest memos. However, the said suggestion to the contrary to the suggestion given to PW35 and PW43 that they were illegally detained since 23.07.2012 till 25.07.2012 or 26.07.2012. Further, if according to the said sugges tion, the accused no.2 was illegally detained from 24.07.2012 to 26.07.2012 when her arrest was shown, the same is contrary to the suggestion given to PW25 that the accused no.2 was illegally detained till 25.07.2012. The said suggestions are contrary to the stand taken by the said accused in the applications dated 05.02.2014 and 02.02.2018 as mentioned above.
288. PW49 also denied a suggestion that the accused no. 1, 2 and 4 were in Nepal prior to the incident for their vacation or that he had illegally detained them Page no.100 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave since 24.07.2012 in the police station after they were illegally detained at the border while entering in India. He denied a suggestion that the accused 1 to 4 were illegally detained in the police station since 6.00 am of 24.07.2012 after they were brought from Nepal Border. This suggestion is not only contradictory to the stand taken by the said accused in the applications dated 05.02.2014 and 02.02.2018 as mentioned above but also contradictory to the stand taken by the accused no. 3 that he was illegally detained on 18.07.2012.
289. The accused examined DW1, DW2, DW3 and DW5 to prove that they were arrested at Nepal boarder. As held above, the mobile phone numbers 9999994129 and 9811149379 were issued in the name of the accused no. 1, out of which first mobile phone number was used by the accused no.1 while the second mobile phone number was used by the accused no.2. DW1 proved the CDR data of the mobile phone number 9999994129 for the period 18.07.2012 to 26.07.2012 Ex.DW1/B, perusal of which reveals that the said mobile phone was switched off at 2:32:14 hrs. and was switched on 4:40:18 hrs. on 18.07.2012. Since thereafter, the said mobile phone remained switched on till 1:46:37 hrs. on 20.07.2012. During the said period, as per the location chart Ex.DW1/G, the location of the said mobile phone is shown at Sector 15, Rohini, Delhi. Thereafter, the said mobile phone remained switched off.
290. Perusal of the CDR data Ex.DW1/E reveal that the mobile phone number 9811149379 was switched off 12:40:03 hrs. onwards and was switched on at 5:24:37 hrs. till 10:18:11 hrs. on 18.07.2012. During the said period, the mobile phone location of the said number was in Delhi. The said mobile number was again switched on at 11:37:46 hrs. on 23.07.2012 and switched off at 8:24:33 pm and its location is shown of West U.P. On 24.07.2012, three calls are shown on the said number and its location is shown at Pitampura, Delhi.
291. Perusal of the CDR data Ex.PW6/C reveals that the mobile phone number 9990626272 was switched off 1:37:15 am onwards and was switched on at Page no.101 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave 10.29.16 am till 7:37:24 pm on 18.07.2012. During the said period, the mobile phone location of the said number was not of Nepal.
292. It is not the case of any of the accused that the mobile phones carrying the said phone numbers were not used by them during the said period or that they had given the same to some other person for uses. As such, the accused have failed to explain if they were not in Delhi then how their mobile numbers were being used in Delhi. As such, an adverse inference can be drawn against them.
293. In view of the foregoing discussions, it can be held that the accused no.1, 2 and 4 have failed to show that before 18.07.2012 they left for Nepal.
294. In their defence, the accused no.1 and 2 have also examined DW5 to prove that the accused no.1 had taken the civic car 6589 of the DW5 to go to Nepal where they were illegally detained and thereafter, their arrest was shown at Delhi on 25.07.2012 and 26.07.2012.
295. According to DW5, the police had illegally lifted his son Ankush from the house of the accused no.1 and thereafter, on the pretext of releasing him, they asked him about the whereabouts of the accused no.1. It is very surprising neither DW5 nor parents of the accused no. 1 had lodged any police complaint against the said illegal lifting of Ankush. Further, DW5 has not disclosed the date when the police illegally lifted his son. More so, according to DW5, in July 2012, he had gone on business trip in Chhatisgarh where he got a call from his home informing that the police had taken his younger son Ankush at police station. Further, DW5 could not disclose the exact date when the accused no. 1 took his car and deposed that it may be between 16.07.2012 and 20.07.2012. DW5 has not disclosed as to which particular person of his family informed him so. The accused has not examined that person or Ankush to this effect in the court. As such, firstly, the Page no.102 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave said statement of DW 5 is hearsay in nature. Secondly, no such suggestion was given to any of the prosecution witnesses. Thirdly, the statement of the accused no. 1 and 2 u/s 313 CrPC is silent to this effect.
296. According to DW5, on 23.07.2012, one SI Kunsal called him from Nepal Border and informed him that his car was parked over there for last two days. Accused no.1 also talked to him. Firstly, it is contrary to the averments made the applications dated 05.02.2014 and 02.02.2018 that the accused no. 1 was illegally detained on 22.07.2012. Secondly, it is nowhere the case of DW5 that when he had the said talk with so called SI Kunsal, by that time, the accused no. 1 had been detained. Rather, according to DW5, he had a talk with the accused no. 1 and he (DW5) himself told the said caller about the police inquiry being made against the accused no. 1 in Delhi. However, this fact is very surprising in nature because DW5 had not given such information to the accused no. 1 but had given to the said caller once no such information was sought by the said caller that too once DW5 did not know him. It is also surprising that once, the accused no. 1 had not been detained by that time and the said person did not ask for any police inquiry against him then as to why he (the accused no.1) himself had not called DW5 and instead, it was alleged SI Kunsal called him once he did not have his mobile phone number. In other words, the accused no. 1 had all freedom to call and talk with DW5 instead to get it routed through the alleged Kunsal. It is also surprising that instead to call his parents either directly or through the alleged Kunsal, the accused no. 1 called DW5.
297. According to DW5, later on, he informed SI Kunsal about the inquiry being made in Delhi. Simultaneously, he informed PW49 about the said fact. Very surprising, DW5 did not disclose the said fact to the accused no. 1 at all against whom the said enquiry was being conducted by the police and who was known to him. Instead, DW5 disclosed the said fact to a stranger.
298. DW5 deposed that he gave the said information to PW49 who arranged the Page no.103 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave private vehicle and constituted a team to arrest the accused no.1. Firstly, no such suggestion was given to PW49. Secondly, if PW49 had to illegally detain the accused no. 1, then he, being the police officer, must not be foolish enough to have done so in the presence of DW5.
299. According to DW5, on 23.07.2012 at about 8:309:00 pm, the police released his son once got the information that the accused no.1 and 2 had been arrested at Nepal Border and were brought to Delhi on 24.07.2012. Firstly, no such suggestion was given to PW49 in his cross examination. Secondly, the said statement is contrary to the averments made in the applications dated 05.02.2014 and 02.02.2018.
300. Accused no. 1 in reply to question no. 43 of the statement u/s 313 CrPC stated that the police took him to PS Maurya Enclave on 25.07.2012 only and no interrogation was made from him on 24.07.2012. No such suggestion was given to PW49. This is contrary to the stand taken in the applications dated 05.02.2014 and 02.02.2018 and suggestions given to PW49 regarding his arrest. Accused no. 1 in reply to question no. 44 admitted his arrest as well as arrest of accused no.3 and 4. Accused no. 1 in reply to question no. 65 admitted arrest of the accused no.2. He has nowhere stated that he illegally detained at Nepal border and thereafter, was brought to Delhi. Later on, his arrest was shown as on 25.07.2012.
301. Accused no. 2 in reply to question no. 65, stated that the police took her and the accused no.1 & 4 to the police station and kept all of them there for 23 days. Thereafter, the police arrested them. According to arrest memo Ex.PW 25/Z4, the accused no.2 was arrested on 26.07.2012. As evident from the record, before that accused no.1 and 4 had already been arrested.
302. Accused no. 4 in reply to question no. 44, stated that he was brought from Nepal boarder but did not remember the date and was not arrested in the manner as stated by the police. He nowhere stated that he was illegally detained with Page no.104 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave accused no.1 and 2 or that he visited with them for vacation prior to date of incident.
303. The statement of the accused no. 1 is completely silent to the fact that he alone or along with the accused no. 2 and 4 was illegally arrested in or at Nepal border. His said statement is also silent to the fact that between 16.07.2012 and 20.07.2012, he took the car of DW5 and had gone to Nepal.
304. In view of the foregoing discussions, it can be held that DW5 is a interested and a tutored witness. Hence, his testimony is not reliable in nature.
305. In view of the foregoing discussions, it can be held that the accused no 1, 2 and 4 have failed to prove that they were arrested at Nepal border and thereafter, were brought to Delhi and were illegally detained from 24.07.2012 till the time there arrested was shown by PW49.
ARREST OF THE ACCUSED NO.3
306. Regarding the arrest of the accused no. 3, in the application dated 02.02.2018, it is mentioned that the accused no.3 was illegally detained by PW49 from 18/19.07.2012 and same continued till 25.07.2012. However, his arrest was shown on 25.07.2012.
307. In cross examination of PW18, the accused no.3 tried to build up a case that the accused no. 3 was illegally detained in PS Sabji Mandi since the evening of 18.07.2012 and was shown arrested on 25.07.2012. However, according to DW4, on 18.07.2012, as asked by the police, he along with the accused no.3 firstly, visited PS Sabji Mandi in the morning hours and then, in the evening hours. From 19.07.2012 till 25.07.2012, the accused no.3 was illegally detained in the police station. As such, the suggestion given to PW18 is contrary to testimony of Page no.105 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave DW4 who stated that the accused no.3 was detained on 19.07.2012. This is also contrary to the averment made in the application dated 02.02.2018. Even the said statement is contrary to the suggestion given to PW49 that the accused no. 1 to 4 were illegally detained in the police station since 6 am of 24.07.2012 after they were brought from Nepal Border. As such, an adverse inference can be drawn against the accused no.3. Further, in cross examination of PW25, no suggestion was given to question the arrest of the accused no.3 on 25.07.2012 vide arrest memo Ex.PW25/A.
308. DW4 in his testimony admitted that he has not lodged any complaint against the police for illegal detention of the accused no.3. PW25 showed his ignorance to the fact that the entire family and relative of all the accused were illegally detained from 20.07.2012 to 24.07.2012 in the police station for which a telegram was sent to Commissioner of Police. The accused have failed to lead any evidence to this effect. Further, the testimony of DW4 and DW5 is silent to this effect.
309. Accused no. 3 in reply to question no. 44, admitted his arrest as well as arrest of the accused no.1 and 4 vide their arrest memos. He stated that after inquiry on 18.07.2012, he came back to his house. Thereafter, he was taken to PS Maurya Enclave where he was arrested on 19.07.2012 itself. It is contradictory to his statement that he was arrested on 25.07.2012 vide arrest memo Ex.PW25/A.
310. As discussed above, according to the accused no.3, he was illegally detained on 18.07.2012 while according to DW4, the accused no.3 was illegally detained on 19.07.2012. However, PW49 in his testimony deposed that the accused no.3 came to the police station on 19.07.2012 and 20.07.2012 also. In his cross examination, no suggestion to the contrary was given. Hence, it can be held that accused no.3 was no detained on 18.07.2012 or 19.07.2012.
311. To this effect, the accused no. 3 in reply to question no. 44 of his statement Page no.106 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave u/s 313 CrPC stated that he was arrested on 19.07.2012. However, the same is contrary to the stand taken by him.
312. In view of the foregoing discussions, it can be held that DW4 is a interested and tutored witness. Hence, his testimony is not reliable in nature.
313. In view of the foregoing discussions, it can be held that the accused have failed to prove that they were illegally detained by PW49. Hence, it can be held that all the accused were arrested following due process of law.
RECOVERY
314. As held above, it stands proved that on 25.07.2012, firstly, the accused no. 3 was arrested vide arrest memo Ex. PW25/A, secondly, the accused no. 1 was ar rested vide arrest memo Ex. PW25/D and thirdly, the accused no. 4 was arrested vide arrest memo Ex. PW25/G. It is also proved that on 26.07.2016, the accused no. 2 was arrested vide arrest memo Ex.PW25/Z4.
315. Ld. APP for the State pleaded that after arrest, the accused no. 1 to 4 made the disclosure statements and in pursuance thereto, they got recovered the incrimi nating articles .
316. Counsel for the accused pleaded that all the police officials who wrote the disclosure statement of the accused no.1,3 and 4 Ex.PW25/K1 to K3, PW46 were not made the witnesses.
317. PW25 in his testimony specifically deposed about the disclosure statements made by the accused persons and the recoveries effected at the instance of the accused persons in pursuance thereto.
Page no.107 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
318. In his cross examination, PW25 specifically deposed that on 25.07.2012 at about 5:00 pm, he joined the investigation and all the seizure memos and the proceedings exhibited by him were prepared after the arrest of accused no.1, 3 and 4. In his cross examination, no suggestion to the contrary was given by counsel for the accused. In his cross examination, PW25 further deposed that the accused no.3 made the disclosure statement Ex.PW25/K1 before PW49 who dictated the same to PW46 and the same was recorded after his arrest. Thereafter, the disclosure statement of the accused no. 1 i.e. Ex.PW25/K2 and then that of the accused no. 4 i.e. Ex.PW25/K3 were recorded. PW25 in his testimony specifically deposed that he signed the said disclosure statements and proved his signatures thereon. He also deposed that Ct. Pyare Lal also signed the said statements as a witness. Thereafter, they left the police station at about 8:30 pm. In cross examination of PW25, no specific suggestions to the contrary were given. No suggestion was given to PW25 that the said disclosure statements do not bear the signature of the accused no.1, 3 and 4 or their signatures were obtained by force by PW49 or their signature were obtained on blank papers and then the same were misused and converted into their disclosure statements or that their signatures were forcibly obtained on the prewritten documents. Testimony of PW25 is corroborated with the testimony PW43 and PW49 to this effect in material particulars.
319. Accused no. 1 in reply to question no. 43 u/s 313 CrPC stated that he did not make any disclosure statement. In reply to question no. 80, he stated that one day police obtained his thumb impressions on some documents. However, no such suggestions were given to PW25, PW43 or PW49.
320. The accused no. 1 to 4 in their statement u/s 313 CrPC, nowhere stated that their disclosure statement do not bear their signature or their signatures were obtained forcibly on the blank paper or they were forced to sign the prewritten documents.
Page no.108 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
321. PW25 also deposed that on 26.07.2012, after arrest, the accused no. 2 made the disclosure statement Mark PW25/Z5. Counsel for the accused though objected to the said statement but did not disclose the nature of the objection. No suggestion was given to PW25 that he was not the competent witness to prove the said statement. The said testimony of PW25 is corroborated with the testimony of PW43 and PW49. In cross examination of PW25, PW43 and PW49, no suggestion was given that the said statement did not bear the signature of the accused no. 2 or her signature was obtained on the blank document. Accused no. 2 in reply to question no. 65 u/s 313 CrPC, denied having made any disclosure statement. The accused no. 2 in reply to question no. 144 of her statement u/s 313CrPC also stated that the police obtained her signature on blank papers. However, no such suggestions were given to PW25, PW43 or PW49. Hence, it can be held that the disclosure statement Mark PW25/Z5 was made and signed by the accused no. 2. Further, the same has been proved by the competent witness. Therefore, the said statement can be considered in evidence.
322. In view of the foregoing discussions, it can be held that the accused no. 1 to 4 made their disclosure statements and also signed the same without any force, coercion and pressure whatsoever. Once the disclosure statements stand proved, non examination of all the police officials who wrote the same is not fatal to the case of the prosecution.
323. Ld. APP pleaded that in pursuance to the disclosure statement made by the accused no. 1 to 4, the recoveries of the various articles from various places were effected at their instance which show their specific knowledge about the said articles and prove their involvement in the subject incident.
324. Per contra, counsel for the accused pleaded that the recovery of the articles is doubtful for the following reasons:
(i) according to the prosecution, the incident took place in the intervening night of Page no.109 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave 17.07.2012 and 18.07.2012. However, the recoveries have been shown on 25.07.2012 and 26.07.2012. As such, there was delay in searching the places which has not been explained by the prosecution. In fact, the recoveries have been planted upon the accused;
(ii) local police was not informed about the visit and the recoveries made;
(iii) site plan of the place of recovery was not prepared;
(iv) PW49 had not prepared the handing over and taking over memos of the seal;
(v) no photograph and videography of the place of recovery was done; and
(vi) no public person was joined in the investigation. In fact, all recoveries were made in a single night to avoid the public witnesses.
RECOVERY EFFECTED AT THE INSTANCE OF THE ACCUSEED NO.3
325. Case of the prosecution is that in pursuance to the disclosure statement made by the accused no. 3, the accused no. 3 led the police on the left side of the road towards Kanhiya Nagar side at a distance of about 100 mtrs. from the flyover and pointed out the place where he had thrown the purse and key of scooter of the deceased. They searched the said place with the help of torchlight. One leather purse of black color and one key ring containing two keys were found lying there which the accused no. 3 had handed over to PW49. On checking the purse, the driving licence of the deceased and some visiting cards were found. PW49 seized the same vide seizure memo Ex. PW25/L.
326. PW25 deposed about the recovery of one purse and one key ring having two keys made at the instance of the accused no. 3 from Prem Bari Pul, Delhi and their seizure vide pointing cum seizure memo Ex.PW25/L. PW25 identified the purse Ex. P3 and key Ex.P4. In his cross examination, no suggestion was given that one purse and one key ring having two keys were not recovered at the instance of the accused no. 3 or the same had been planted upon the accused no.
3. Regarding the public persons, he deposed that PW49 asked the public persons Page no.110 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave to join the investigation but they refused.
327. PW49 also specifically deposed about the recovery of the purse and one key from Prem Bari Pul and their seizure as deposed by PW25. In his cross examination, no suggestion was given that the said items were planted upon the accused no. 3 or were not made in pursuance to his disclosure statement.
328. It is evident from the testimony of PW18 that on 15.10.2012, he identified the purse and keys of the scooter of the deceased in the TIP proceeding Ex.PX3. The accused persons have admitted the said TIP proceedings.
329. In view of the foregoing discussions, it stands proved that one purse and one key ring having two keys of the scooter belonging to the deceased were recovered from Prem Bari Pul at the instance of the accused no. 3.
RECOVERY EFFECTED AT THE INSTANCE OF THE ACCUSED NO. 1
330. Case of the prosecution is that the accused no. 1 led them to the unused bathroom at third floor of his house situated at C2/16, Sector15, Rohini, Delhi and had taken out one pistol which he had hidden inside the cistern in a black color polythene. PW49 seized the pistol with magazine and the said live cartridge vide seizure memo Ex. PW25/P.
331. It is also the case of the prosecution that the accused no. 1 had also led them to a room adjacent to the lobby on the second floor of aforesaid house and from the said room, he took out one blue color jeans and one green color Ishirt from one cloth bundle (gathari) and stated that these were the same clothes which he was wearing at the time of incident. PW49 seized the same vide seizure memo Ex. PW25/Q. Page no.111 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
332. Accused no. 1 had also taken out one key ring containing the key of the swift car from the almirah of the said room which PW49 seized vide seizure memo Ex. PW25/R. Accused no. 1 had also handed over key of the ascent car which was seized vide seizure memo Ex. PW25/S.
333. PW25 deposed about the abovementioned recoveries made at the instance of the accused no. 1 and identified one pistol along with magazine Ex. P26, one key each of each car Ex. P28 (collectively), jeans pant Ex. P29 and Tshirt Ex. P
30. Regarding the abovementioned recoveries made from the house of accused no.1, in cross examination of PW25, no suggestion was given that no such recoveries were effected at the instance of the accused no.1 from his house or the same were planed upon him. PW25 deposed that family members of the accused no.1 had not signed the seizure memo Ex.PW25/R. No suggestion to the contrary was given. This proves presence of family members of the accused no.1 that time. There is nothing on record to suggest that the family members of the accused no. 1 ever complained to any authority that the said articles were planted upon the accused no.1.
334. PW49 in his cross examination also specifically deposed as to how the accused no.1 got recovered the pistol, his Jean and Tshirt and the keys of the swift car & the accent car. In his cross examination, one suggestion was given that the said recoveries were planted upon the accused no.1. However, no such suggestion was given to PW25.
335. Accused no.1 in his statement u/s 313 CrPC merely denied the recovery of the articles from his house on 25.07.2012. However, he has nowhere stated that the police had not visited his house that day or that the said articles were planted upon him.
336. Accused no. 2 in reply to question no. 51 of her statement u/s 313 CrPC stated that they were made to sit in a room of the said house and the police was Page no.112 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave searching the said house at their own. As such, she admitted that the police visited the house of the accused no.1 in the intervening night of 25.07.2012 and 26.07.2012 and conducted the search and recovered the articles, in her presence. She has nowhere stated that the recovered articles were planted by the police upon the accused no.1.
337. In view of the foregoing discussions, it can be held that the abovementioned recoveries were made at the instance of the accused no. 1 from his house in presence of his family members including his wife i.e. the accused no.2.
338. Counsel for the accused pleaded that PW25 has failed to give the description of the bathroom from where the pistol was recovered. Further, PW49 had not made any effort to find out the from where the pistol recovered by him was procured. In cross examination of PW25 and PW49, no suggestion was given to that no pistol was recovered from the said bathroom. It is not the case of the accused no. 1 that he did not have any bathroom on the third floor from where the pistol was recovered. It is not the case of the accused no. 1 that prior to the said visit of PW25 and PW49, they had already visited the said floor and the bathroom. The issue is whether the pistol was recovered at the instance of the accused no. 1 from his house. As held above, the recovery of the pistol at the instance of the accused no.1 and its usage in the subject incident stands proved. Therefore, no disclosure of the source from where it was procured and what was the description of the said bathroom become irrelevant.
RECOVERY EFFECTED AT THE INSTANCE OF THE ACCUSED NO. 1 AND 4
339. Case of the prosecution is that the accused no. 1 and 4 led them to the sewer (gutter) situated at Ring Road, Laipat Nagar near double storey market and got recovered one mobile phone claiming that it was of the deceased which Page no.113 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave was lying at a dry place in the gutter which was seized vide pointing out cum seizure memo Ex.PW25/Y.
340. Regarding recovery of the mobile phone of the deceased from the sewer (gutter), PW25 deposed that they reached at the spot shown in Ex. PW25/Y at 2:152:30am and the accused no. 1 and 4 got recovered one mobile phone make Samsung Ex. P31 which belonged to the deceased. The depth of the gutter was approximately 4 feet. He showed his ignorance that the gutter in the area mentioned in Ex.PW25/Y had the minimum depth of 6 feet. As such, the accused admitted the presence of the gutter in the area as shown in the said site plan. In his cross examination, no suggestion was given that no mobile phone recovered from the said gutter or that the mobile phone was planted upon the accused or the site plan Ex. PW25/Y was an incorrect one.
341. PW49 in his testimony specifically deposed that as to how the mobile phone Ex. P31 was recovered from the sewer at Lajpat Nagar. In his cross examination, no suggestion was given that no mobile phone was recovered from the sewer at Lajpat Nagar or that the said mobile phone was planted upon the accused persons to falsely implicate them in the present case.
342. Counsel for the accused pleaded that PW18 in his cross examination deposed that on the date of incident, the deceased was using the mobile phone number 8586807081. According to the prosecution, vide bill Ex. Ex. PW17/D, the deceased purchased the said mobile phone. However, on that bill, the mobile phone number is mentioned as 9910403776. Hence, the prosecution has failed to prove that the mobile phone number 8586807081 belonged to the deceased.
343. PW17 and PW18 deposed that on 30.07.2012, they handed over the pur chase receipt of the mobile phone of the deceased i.e. Ex.PW17/D to PW49 Page no.114 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave which he seized vide seizure memo Ex.PW17/C. Their said testimony remained unrebutted.
344. PW2 proved that the mobile phone number 8586807081 was issued in the name of Shivam Kapoor (the deceased). In his cross examination, no suggestion to the contrary was given. Hence, it is proved that the deceased was using the mobile phone number 8586807081.
345. Counsel for the accused pleaded that the mobile where bill Ex. PW17/D is not properly proved by PW24. There is no substance in the plea because firstly, no objection as to mode of proof was raised by counsel for the accused; secondly, no suggestion was given to PW24 that the said bill was a forged and fabricated document; and thirdly, no suggestion was given to PW17and PW18 that the bill submitted by him with PW49 was a forged and fabricated document. Hence, the said bill is admissible in evidence.
346. In the mobile phone bill Ex.PW17/D, the IMEI no. of the mobile phone i.e. 355315043577751 is mentioned. The said IMEI number is also mentioned in the pointing out cum seizure memo Ex. PW25/Y and CDR data Ex. PW2/K. Hence, it can be held that on the date of incident, the deceased was using the mobile phone number 8586807081 on the mobile phone Ex. P31 and the same was recovered at the instance of the accused no. 1 and 4 from the place mentioned in Ex. PW25/Y. Once, it stands proved, then the contradiction in the statement of PW25 and PW49 as to depth of the sewer is irrelevant. Whether PW49 obtained the permission from the concerned municipal corporation to open the said sewer is also not a relevant issue. Hence, the objections raised by counsel for the accused to this effect are not sustainable in law.
347. It is the case of the prosecution that the accused no. 4 also revealed that at a short distance from there, they had washed the swift car and had thrown one car Page no.115 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave seat cover, two head rest covers and three shades (jaali) in the drain and got them recovered.
348. PW25 deposed about the recovery of one seat cover, two head rest covers and three window jaali (shades) from the drain where the accused no. 1 and 4 had washed the swift car and proved the pointing out cum seizure memo Ex. PW25/Z1. PW25 identified one car seat cover, two head rest covers and three window jaali (shades) Ex. P5 (colly). PW28 also identified them i.e. one back car seat cover Ex P7, two head rest covers Ex.P6 and three window jaali (shades) Ex. P5. In their cross examination, no suggestion was given that the same were planted upon the accused persons. The said testimony of PW25 is corroborated with the testimony of PW49 in material particulars. Hence, the recovery of the said articles at the instance of the accused no. 4 stands proved.
RECOVERY EFFECTED AT THE INSTANCE OF THE ACCUSED NO. 2
349. Case of the prosecution that the accused no. 2 got recovered the one Top and Lower which she worn at the time of incident and the same were seized vide seizure memo Ex. PW25/Z7.
350. To this effect, PW25 deposed that the top and lower of the accused no.2 were recovered from the almirah of the second floor of the house no. C2/16, Sector 15, Rohini, Delhi and identified one top Ex. P12 & one Lower Ex. P13. In his cross examination, no suggestion was given that no such recoveries were effected or the same were planted upon the accused no.2.
351. PW43 also deposed about the recovery of the top and lower of the accused no.2 effected from the second floor of their house. In her cross examination, she deposed that PW49 asked one or two passersby to join the investigation but they refused. In her cross examination, she deposed that the clothes were handed over Page no.116 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave by the accused no.2 from one room. She denied the suggestion that no recovery of clothes was effected from the said house. However, no such suggestion was given to PW25. No suggestion was given to PW43 that the said articles were planted upon the accused no.2. The testimony of PW25 and PW43 is corroborated with the testimony of PW49 to this effect in material particulars.
352. Counsel for the accused pleaded that signatures of the parents of the accused no.1 and parent in law of the accused no.2 were not obtained on the recovery memos and the arrest memos when the recoveries were made from the house of the accused no. 1. Counsel for the accused also pleaded that to this effect, PW49 has given the explanation that he had not made them the witnesses since he had apprehension that they may turned hostile in future. However, if that was so, PW49 IO has failed to explain as to why father of accused no.1 i.e. PW14 was made a witness in the present case.
353. It was for PW49 to judge who could be the best witness for him and he has given the explanation that he had not made the family members of the accused no. 1 as the witnesses to the said memo since he had apprehension that they may turn hostile in future. The apprehension of PW49 appears to the genuine. Further, the prosecution examined PW14 only to prove that the accent car belonged to him and he took the same on superdari.
354. In view of the foregoing discussions, it stands proved that the accused no.2 got recovered her one top and one lower. PW40 in his testimony identified the clothes worn by the accused no.2 that night as Ex.P12 and Ex.P13 and counsel for the accused has not disputed the said fact in his cross examination. Hence, it stands proved that the accused no.2 had worn the top Ex.P12 and lower Ex.P13 that night.
Page no.117 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave RECOVERY EFFECTED FROM THE ACCUSED NO. 1 AND 4 IN PURSUANCE TO THE SUPPLEMENTARY DISCLOSURE STATEMENT
355. It is evident from the testimony of PW25 and PW49 that first two attempts to recover the articles from Naraina Flyover, Ring Road at the instance of the ac cused no. 1 and 4 could not succeed. Consequently, PW49 further interrogated the accused no. 1 and 4 recorded their supplementary disclosure statements Ex. PW46/C and Ex. PW46/D.
356. Regarding recording of the supplementary disclosure statements and their necessity, in the entire crossexamination of PW49, no suggestion was given by counsel for the accused that he recorded the supplementary disclosure statements of the accused no. 1 and 4 without justification and authority. No suggestion was given that PW49 to cover up his lapses, recorded their supplementary disclosure statements.
357. The accused no. 1 in reply to question no. 80 of his statement u/s 313 CrPC stated that one day, the police obtained his thumb impressions on some docu ments. However, no such suggestion was given to PW25, PW43 or PW49. Fur ther, the supplementary disclosure statement of the accused no. 1 Ex. PW46/C bears his signature which he has not denied and not his thumb impression.
358. In view of the foregoing discussions, it can be held that the accused no. 1 and 4 made the supplementary disclosure statements.
359. PW35 Ct. Sandeep deposed that on 27.07.2012, he joined the investigation along with Ct. Pyare Lal and HC Prithvi Singh and PW49. The accused no. 1 and 4 led them near subway, under the grabage pile, had taken out one grey colour pant Page no.118 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave belonging to the accused no. 3 which was stained with the mud and some blood stains, was lifted from the pile of garbage. Pant was having the label of "POE Dis trict SouthEast" and was sealed and seized vide seizure memo Ex.PW35/A. He identified the pant Ex. P8.
360. PW35 also deposed that the accused no.1 and 4 led them to Lajpat Nagar Flyover southern side and then to a park opposite Evergreen Medicos. The accused no. 4 got recovered one underwear/burmuda from the corner of the park which was kept beneath the bushes and claimed that he was wearing the same at the time of incident. It had blood stains and was sealed and seized vide memo Ex. PW35/B. He identified the pant Ex. P9.
361. PW49 deposed about the recoveries made in pursuance their said disclosure statements on the similar lines as deposed by PW35. PW49 also deposed that recovery of the blood stained barmooda from the bushes was made. In his cross examination, no suggestion was given that the same had not been recovered or the same has been planted upon the accused persons.
SWIFT CAR
362. Case of the prosecution is that swift car registration no. DL2CAN3335 Ex. P2 belonged to PW15 who was the father of PW28. The accused no.1 was the friend of PW28. In past, PW28 used to take the car of the accused no.1 for his usage. On 15.03.2011, PW15 purchased the swift car. In November/December 2011, the accused no.1 got arranged the loan of Rs.2.0 lacs from someone for PW 28 which he had repaid later on. On 26.05.2012, the accused no.1 took away the swift car from PW28 on the pretext that his car was not available. Thereafter, the accused no.1 had not returned the said car to PW28 despite several requests on the pretext that PW28 should first pay the loan amount. Later on, the accused no.1 along with other accused used the said car to abduct the deceased. In the said car, Page no.119 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave the accused committed the murder of the deceased and thereafter, threw his dead body from the said car at the spot. Later on, the said car recovered at the instance of the accused no. 1 and 4.
363. On the contrary, counsel for the accused pleaded that according to the prosecution, the swift car was used in the subject incident. However, as per the PCR form Ex. PW8/A, the car number from which the body of the deceased was thrown out was 4654 which is entirely different from the registration number of the swift car relied upon by the prosecution. Further, make of the car was not mentioned in the said form. However, no inquiry has been made nor any explanation was given by PW49 regarding the car no.4654 mentioned in the said PCR form.
364. PW49 in his testimony specifically deposed that he made all efforts to ascertain the involvement of car having the last digit 4654. However, during investigation, it was revealed that the said car number mentioned in PCR form was not correct. On 25.07.2012, he was confirmed about the non involvement of the car no.4654 in the subject incident. In his cross examination, no suggestions to the contrary were given to PW49 by counsel for the accused. Further, the said number was mentioned in the said form on the basis of the information given by PW23 (who has not supported the case of the prosecution) and not on the basis of the investigation done by PW49 to this effect. Once, the investigation was done to this effect, PW49 was confirmed that the car with the registration number 4654 was not involved in the incident. As such, there is no substance in the plea raised by counsel for the accused that PW49 had not made any effort to find out the car bearing registration no.4654.
365. Counsel for the accused also pleaded that the swift car belonged to PW15 and PW28. According to PW15 and PW28, in November/December 2011, the accused no.1 had got arranged a loan of Rs.2 lacs to them. On 26.05.2012, the accused no. 1 took the said car for usage but thereafter, he did not return the said Page no.120 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave car to them despite their request on the pretext that they had not repaid the said loan. However, no complaint was lodged by anyone of them regarding illegal possession of their swift car by the accused no.1. The prosecution has also failed to prove that the accused no. 1 got arranged any loan for them. As such, the accused persons had no concern with the swift car.
366. Counsel for the accused also pleaded that according to PW15, he visited the police station on 19.07.2012, while according to PW28, the police made the inquiry from him on 23.07.2012. However, according to the prosecution, the swift car was recovered on 26.07.2012, on the basis of the disclosure statement of the accused no.1 and 4. PW15 and PW 28 have failed to disclose as to how the police came to know about their particulars and address because the swift car was recovered on 26.07.2012. PW49 has also not disclosed as to how he came across the said number. This shows that the police had already recovered the swift car before making the disclosure statement by the accused no.1 and 4, otherwise, there was no occasion for them to call PW19 and PW28 prior to 26.07.2012. In the given circumstances, the recovery of the swift car shown at the instance of the accused no.1 and 4 is not reliable.
367. It is evident from the testimony of PW15, PW28 and PW33 that the swift car was registered in the name of PW15. As such, it stands proved that PW15 was the owner of the swift car.
368. PW15 in his cross examination deposed that he did not remember the date when police made inquiries from him. Again said, it may be July 19 and also stated that it was after shivratri and the police had met his wife and he was not at his house and he had gone to the police station next day. As such, from the testimony of PW15, it is revealed that he had not stated that he visited the police station on 19.07.2012. As per record, the statement of PW15 u/s 161 CrPC was recorded on 19.09.2012 i.e. Ex.PW15/DA. There is nothing on record to show Page no.121 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave that PW15 visited the police station on 19.07.2012. Even no such suggestion was given to PW49 to this effect. Hence, it can be held that PW15 had not visited the police station on 19.07.2012.
369. PW28 in his testimony specifically deposed that the accused no.1 was his good friend and he used to call him as Gappi. No suggestion to the contrary was given. PW15 and PW28 deposed that in past, he used to take the car of the accused no.1 when he had to take his father i.e. PW15 to the hospital for dialysis. In cross examination, they denied the suggestion given contrary to the same. However, the accused no.1 in reply to the question no.124 of the statement u/s 313 CrPC stated that he did not know the said fact. As such, the accused no.1 has avoided to answer the same despite the fact, he must be having the personal knowledge of the said fact. Hence, an adverse inference can be drawn against the accused no. 1. As such, it can be held that in past, PW28 used to take the car of the accused no.1 for his usage.
370. PW28 in his cross examination deposed that he visited the police station on 23.07.2012 and told the police all the details and the manner in which the accused no. 1 had taken the swift car from him, but his statement was not recorded that day. In cross examination of PW49, no suggestion was given to him that he had deliberately not recorded the statement of PW28 that day. In his cross examination, PW28 denied a suggestion that the accused no.1 was at the police station on 23.07.2012 and he had even met him and talked to him. This suggestion proves that the accused no.1 and PW28, being friends, were known to each other much prior to the date of incident and that PW28 visited the police station on 23.07.2012.
371. As held above, PW19 mentioned about the swift car in his statement dated 23.07.2012. It implies that once PW49 came to known about the swift car and its registration number on 23.07.2012, he called PW28 for the inquiry. However, that time, PW49 was already investigating about the involvement of the car no. 4654 Page no.122 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave as mentioned in the PCR form and the accused no. 1 and 4 were not found at their houses. Hence, statement of PW28 was not recorded that day. Once, the swift car was recovered, PW28 made his only statement u/s 161 CrPC on 29.07.2012.
372. PW28 in his cross examination deposed that on 23.07.2012, he did not see the swift car in the police station, but once he had gone to the police station on 29.07.2012, he identified the said car. There is nothing in the testimony of PW28 which suggests that he had gone to the police station before 23.07.2012 and after 29.07.2012. As held above, PW19 had given the description of the car which he had seen on the day of incident in which the accused no.3 was sitting along with one more person. As held above, PW19 in his statement dated 23.07.2012 specifically mentioned the make and number of the said car i.e. the swift car. Hence, it can be held that before 23.07.2012, PW49 was not aware about the swift car. Till recording the disclosure statements of the accused no. 1 and 4, PW49 was also not aware of the whereabouts of the swift car and its involvement in the subject incident.
373. Now the issue arises as to whether on the date of incident, the accused no. 1 was having the possession of the swift car or not.
374. PW28 specifically deposed that on 26.05.2012, the accused no. 1 had taken the swift car from them and did not return thereafter despite their several requests. PW15 and PW28 in their cross examination specifically denied that they had not handed over the swift car to the accused no.1 on 26.05.2012. It is nowhere case of the accused no. 1 that on the date of incident, the said car was with PW15 and 28 themselves and not with him. Even, in their entire cross examination, no suggestion was given to them that in the intervening night of 17.07.2012 and 18.07.2012, the said car was with them and not with the accused no.1. PW49 denied a suggestion that PW15 and PW28 were planted to complete the chain of event. However, no suggestion was given that the said car remained in their possession on the date of incident. PW49 denied a suggestion that the Page no.123 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave accused persons had never been in possession of the swift car. However, no such suggestion was given to PW15 and PW28. It is not the case of the accused no.1 that PW15 and PW28 had any enmity with him. As held above, the key of the swift car was recovered from the possession of the accused no.1. Though the accused took a plea that the said car was planted on them but no suggestion was given to PW25 or PW49 in their cross examination that the key of the swift car was planted upon the accused no. 1 at the instance of PW15 and PW28. Hence, it can be held that on the date of incident, the swift car was possessed by the accused no.1.
375. In response to a question, PW19 in his cross examination stated that the accused no.3 was driving the swift car. No suggestion to the contrary was given. As evident from the testimony of PW19, another boy who later on was identified as the accused no.1 was also sitting in that car. In his cross examination, in response to a question, PW19 has shown his ignorance as to whether the accused no. 1 and 3 had also left Chowk of Gurudwara when he and the deceased left the said place. This very fact proves the presence of the accused no. 1 and 3 in the swift car at Chowk of Gurudwara and their meeting with PW19 and the deceased that night. Further, it is not the case of the accused no.1 that he had handed over the said car for usage to the accused no.3 that night and it was he who was using the same. Hence, it can be inferred that the accused no.1 was having possession of the said car that night and it was he who was using the same along with the accused no.3. Hence, it can be held that the second person who was sitting in that car that night along with the accused no. 3 and whom PW19 had seen was the accused no.1 only.
376. It is evident from the record that PW15 and PW28 have failed to prove that the accused no. 1 had arranged the loan of Rs. 2 lacs for them. Regarding the inquiry to this effect, PW49 in his cross examination specifically deposed that his main focus was to ascertain whether the swift car was in the possession of PW15, PW28 or the accused persons on the date of incident. In view of the foregoing Page no.124 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave discussions, it can be held that once, it is proved that in the intervening night of 17.07.2012 and 18.07.2012, the accused no. 1 was in the possession of the swift car, then, merely because the prosecution has failed to prove that the accuse no. 1 got arranged the loan of Rs.2 lacs to PW15 and PW28 in the month of November/December, 2011 is not fatal to the case of the prosecution.
RECOVERY OF THE SWIFT CAR
377. Case of the prosecution is that in pursuance to the disclosure statements, the accused no. 1 and 4 led them to the place where they had parked the swift car i.e. near DMS booth and got recovered the swift car which was seized vide point ing out cum seizure memo Ex.PW25/Z2. From the swift car, the articles as men tioned in Ex. PW25/Z9 were also seized.
378. As held above, before recording the disclosure statements of the accused no. 1 and 4, PW49 had no clue about involvement of the swift car in the subject incident and its whereabouts.
379. As held above, the accused no.1 and 4 made the disclosure statement Ex.PW25/K2 and K3 wherein they not only disclosed about the make and registration number of the car i.e. the swift car and its usage in the subject incident but also the place where they parked the said car after the incident. As such, PW49 discovered the said facts.
380. PW25 in his testimony proved the pointing out cum seizure memo Ex.PW 25/Z2 vide which the swift car was seized on 26.07.2012. In the said memo, it was specifically mentioned that the accused no.1 and 4 led them to the place i.e. a wall near the Pump House, DMC Booth, opposite H.No.B140/141, Amar Colony, Lajpat Nagar4, Delhi where the swift car was parked. As such, the description of the place where the said car was parked and from where it was seized are specifically mentioned in the said memo. In his cross examination, counsel for the Page no.125 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave accused failed to shake his credibility to this effect. In the photographs Ex.PW 20/A1 to A24 also, the place where the said car was parked, has been shown. Therefore, merely because the site plan of the place was not prepared by PW49 is not fatal to the case of prosecution.
381. PW25 specifically deposed that on 26.07.2012 at about 3/3:15am, the swift car was first opened and then sealed by PW49. In his cross examination, no suggestion to the contrary was given. PW25 in his cross examination specifically deposed that that time, PW49 was carrying the key of the swift car which he had not sealed when he took the same from the accused no.1. PW25 specifically de posed that PW49 opened the car and then seen it. No suggestions to the contrary were given. He admitted one suggestion that only the keys of the swift car and the accent car were not sealed by PW49 and simultaneously, in reply to a question, he deposed that rest of the item recovered from the house of the accused no.1 were sealed. As such, the accused no.1 has admitted that the articles including key of the accent car and the swift car were recovered from his house and except the said keys, rest of the item were sealed. As such, the accused admitted the said recover ies were made at his instance from his house.
382. PW49 in his testimony deposed on the similar line as to how they found the swift car at the instance of the accused no.1 and 4, the place where it was found and its seizure vide seizure memo Ex.PW25/Z2. He also deposed that he opened the car with the key which he had and since he wanted to get it inspected by FSL, he left HC Devender for safe custody of the said car. The testimony of PW25 is also corroborated with the testimony of PW49 to this effect. In his entire cross examination, no suggestions to the contrary were given to PW49 by counsel for the accused. No suggestion was given to him that he had deliberately not prepared the site plan of the place where the said car was found. No suggestion was given to him to question the authenticity of seizure memo Ex.PW25/Z2.
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383. In view of the foregoing discussions, it can be held that before the intervening night of 25.07.201 and 26.07.2012, PW49 did not have the keys of the said car with him. Once the swift car was recovered, it was opened by PW49 from the key recovered from the accused no. 1 and thereafter, it was seized. As held above, the recovery and seizure of the key of the swift car stand proved. Therefore, even if the said key was unsealed is not fatal to the case of the prosecution because it is not the case of the accused that there was any chance of tampering with the said key or it was the duplicate key.
RECOVERY EFFECTED FROM THE SWIFT CAR
384. Case of the prosecution is that one clip of bandage, one bandage, one empty cartridge case lying in the middle of both front seats, one front pellet lying inside the adjacent seat of the driver seat of the car and some coins were recovered from the swift car. PW 49 seized the same vide seizure memo Ex. PW25/Z9. Three SIMs of mobile phone were also found lying in the said car which were seized vide seizure memo Ex. PW25/Z10. One paper cutter and one water bottle, on which, blood spot was found, were not separately seized and were kept inside the car for the purpose of FSL inspection.
385. Regarding the inspection of the swift car by the Crime Team, PW25 in his cross examination deposed that on 26.07.2012 at about 12:30pm, the Crime Team reached at the place where the swift car was parked and remained there for about 1 & ½ hours. He also deposed that that time HC Devender was present there. The Crime Team inspected the said car and took the photographs from different angles. The articles as mentioned in the seizure memo Ex.PW25/Z9 were seized while the paper cutter and water bottle were not seized but were left in the said car for FSL examination. The swift car was brought at PS Maurya Enclave through the crane and was deposited in malkhana. PW25 denied a suggestion that the Page no.127 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave entire articles were planted by PW49 when he opened the said car with unsealed keys which was kept opened till 12:30pm and that no clip of bandage, bandage, empty cartridge case and the pellet were found in the said car during the search by the Crime Team. Vide the said suggestion, the accused admitted that PW49 had the keys of the swift car with him and with that key, he opened the said car. Simultaneously, the accused took a plea that in between, PW49 had kept it opened till 12.30pm, and planted the said articles in the said car and the same remained there and were found by the Crime Team at the time of investigation. On the contrary, the accused gave another suggestion that the said articles were not found in the car when the Crime Team inspected the said car. If that was so, the accused failed to explain where the said articles had gone.
386. PW48 specifically deposed about his visit at the place where the said car was parked and the articles seized from the said car on the lines as deposed by PW25 and PW49. In his cross examination, PW48 deposed that two accused persons in muffled face were present as mentioned in his report whose names were disclosed as Abhay (the accused no.1) and Jatin (the accused no.4) as mentioned in his report. In his cross examination, no suggestion was given that the accused no.1 and 4 were not present that day at that spot along with PW49. In his cross examination, he deposed that when he reached there, the swift car was locked and PW49 had the keys of the same and opened the said car. In his cross examination, no suggestions to the contrary were given. It implies that PW49 had the key of the swift car and opened it in the presence of PW20, PW25, PW48 and the accused no. 1 & 4 for the purpose of inspection.
387. In his cross examination, PW48 he specifically deposed he prepared his report at the site itself. No suggestion to the contrary was given. In cross examination of PW48, no suggestion was given that his report Ex.PW48/A is a forged and fabricated report.
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388. PW20 also deposed on the similar lines as deposed by PW48 and proved the photographs Ex.PW20/A1 to A24. The said testimony of PW20 is corrobo rated with testimony of PW48 in material particulars. In his cross examination, he specifically deposed that the paper cutter was found in the said car. No sugges tion to the contrary was given. He denied a suggestion that everything was planted in the car in his presence. The said suggestion is contrary to the sugges tion given to PW25 that the articles had been planted before 12:30pm i.e. before the Crime Team reached at the spot. Secondly, as discussed above, the accused no. 1 and 4 were present that time. Hence, it cannot be believed that PW49 would be fool enough to plant the said articles in their presence. Thirdly, the accused no. 1 and 4 in their statement u/s 313 CrPC remained silent to this effect.
389. In cross examination of PW49, no suggestion was given that before the disclosure made by the accused persons, he was already aware about the location of the said car or that he had planted the articles in that car. In cross examination, no suggestion was given to PW49 to question and dispute the recovery of the swift car vide seizure memo Ex. PW25/Z2 and its authenticity. PW49 in his testimony also deposed about the visit of the Crime Team at the spot where the swift car was parked and its inspection by the Crime Team. He specifically deposed about the places where the seized articles were lying in the said car and were seized vide memo Ex.PW25/Z9. In his cross examination, no suggestion was given to question the inspection of the car by the Crime Team on 26.07.2012 and the authenticity of the seizure memo Ex.PW25/Z9. No suggestion was given to him that the articles mentioned in seizure memo Ex.PW25/Z9 were planted by him to falsely implicate the accused in the present case. In cross examination of PW49, no suggestion was given to him that the said car itself was planted upon the accused persons or that the same was not got recovered at the instance of the accused no.1 and 4 in pursuance of their disclosure statement.
390. Accused no. 4 in reply to question no. 62 of his statement u/s 313 CrPC, regarding locking of the swift car and taking the same in possession vide seizure Page no.129 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave memo Ex.PW25/Z2; and keeping him and the accused no.1 in muffled face, has shown his ignorance. However, he has not denied his presence as well as the presence of the accused no. 1 at that time. Being so, he must be aware about the said proceedings. Since he has shown his ignorance about the same, an adverse inference can be drawn against him.
391. As held above, the accused no.1, 3 and 4 were arrested on 25.07.2012. As evident from the testimony of PW25, immediately thereafter, the accused no. 1, 3 and 4 made their disclosure statement and the said procedure completed by 8.30 pm. Immediately thereafter, PW49 had started search for the articles. As such, there is no substance in the plea raised by counsel for the accused that there was delay on the part of PW49 in search of places.
392. Testimony of PW25, PW35, PW43, PW46 and PW49 remained consistent and corroborated each other as to the manner in which the articles were recovered at the instance of the accused persons, description of the places from where they were recovered and their identification. Pointing out cum seizure memos also specifically describe the places from the said recoveries were effected. Hence, merely because the site plans of the place of recovery were not prepared and photography/videography of the said places were not got done, is not sufficient to doubt the recovery proceedings.
393. Regarding the seal used by PW49 to seal the articles, counsel for the accused pleaded that PW49 had not delivered the seal to any other person and retained the same with him and thereafter, misused the same. He relied upon Ex.PW25/A wherein it was mentioned that seal had been handed over to PW25 and pleaded that however, PW25 has not deposed to that effect. There is no evidence that subsequently, PW25 handed over the said seal to PW49. Further, there is no taking over or handing over memo of the said seal. Firstly, no suggestion was given to PW49 that he had misused the seal. Secondly, as evident from the record, all the recoveries were made at earliest, the articles were sealed Page no.130 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave and seized immediately and thereafter, were deposited in the malkhana. Therefore, there was no occassion for PW49 to misuse the seal. Thirdly, it is evident from the testimony of PW25, PW43 and PW49 as to how the seal was used by PW49 and was handed over and taken over by PW49. To this effect, no suggestion to the contrary was given by counsel for the accused to the said witnesses. Fourthly, there is no mandatory requirement under the Code of Criminal Procedure for the investigating officer to prepare the handing over and taking over memos of the seal. Therefore, there is no substance in the pleas raised by counsel for the accused to this effect.
394. Counsel for the accused pleaded that at the time of recovery, PW49 had not followed the provision of section 166 CrPC, therefore, the whole proceedings are of no consequence. It can be said that noncompliance of section 166 CrPC may make the recovery suspicious in nature but it nowhere says that in absence thereof, whole proceedings would be void. As held above, the testimony of PW25, PW35, PW43, PW46 and PW49 as to the recoveries of the articles effect at the instance of the accused corroborated each other in material particulars and the accused have failed to shake their credibility. As such, the said recoveries inspire confidence of this court. Therefore, in the present case, non compliance of the provision of section 166 CrPC is merely a procedural lapse on the part of PW49. Hence, there is no substance in the said plea raised by the accused.
395. Counsel for the accused pleaded that in the seizure memo Ex.PW25/Q, there is over writing in the date which was changed from 26 to 25. Perusal of the said document reveals that PW49 under his signature mentioned the date 25.07.2012 and no suggestion was given to him that it was not signed by him that day. Therefore, the said overwriting is not fatal to the case of the prosecution.
396. Counsel for the accused pleaded that at the time of recovery, IO had not made any public person witness to the said proceeding, hence, the said recovery proceedings are of no consequence.
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397. The Hon'ble Delhi High Court in the judgment titled as "Mohinder Sharma versus State", passed by Crl. A. No. 694/2012 decided on 21.02. 2013, relying upon the various judgments passed by the Hon'ble Supreme Court held:
"16. The contention that as the independent public witnesses were not joined in the recovery and were not signatories of the seizure memo, the testimonies of the police officers should be rejected, cannot be accepted. In State Government of NCT of Delhi versus Sunil & Another, (2001) 1 SCC 652 it has been observed:
"In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helterskelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. vs. S. Sardar Ali & ors. (1983 SC 1225). Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub section (4) and (5) of section 100 Page no.132 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.
Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during postindependent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
17. The judgment in the case of Sunil and Another (supra) was quoted with Page no.133 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave approval by the Hon‟ble Supreme Court in subsequent decisions of in Dr. Sunil Clifford Daniel versus State of Punjab, JT 2012 (8) SC 639 and in Munish Mubar versus State of Haryana, (2012) 10 SCC 464. In the case of Munish Mubar (supra), the Hon‟ble Supreme Court has also discussed the importance of information/explanation furnished by the accused when incriminating circumstances are put to him under Section 313 Cr.P.C. The relevant portion reads as under: "24. It is obligatory on the part of the accused, while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation, even in a case of circumstantial evidence, so to decide, whether or not, the chain of circumstances is complete. The aforesaid judgment has been approved and followed in Musheer Khan v. State of Madhya Pradesh, (2010) 2 SCC 748. (See also: The Transport Commissioner, A.P., Hyderabad & Anr. v. S. Sardar Ali & Ors., AIR 1983 SC 1225)"
18. In regard to the second contention raised by the counsel for the appellant, it is correct that the personal search memo of the appellant (Exhibit PW 26/H) does not record recovery of the knife, mobile phone Nokia 1600 and mobile phone Nokia 2600, but the same were seized vide separate seizure memos being Exhibits PW26/B (knife), PW26/D (Nokia phone 1600) and PW26/E (Nokia phone 2100). At the time of arrest, a scooter was also seized vide Ex.PW26/C but the said fact does not find mention in the personal search memo (Ex.PW26/H) of the appellant. The seizure of the scooter certainly cannot be doubted. Statements of Inspector Baljit Singh (PW29), Constable Narender Kumar (PW26) and Sunil Kumar (PW27) are clear, categorical and in seriatim about the recoveries. There may be some discrepancy regarding how the said police officers had reached the spot in question, but this is understandable keeping in view the time gap between the date of arrest and the date on which the statements of the police officers were recorded and keeping in view the number of cases the said officers might have investigated.
397 A. Reliance is also placed upon the judgment titled as "Pramod Kumar vs. State (GNCT) of Delhi" reported in (2013) 6 SCC 588, in which the Hon'ble Supreme Court held:
" 12. .........................The witnesses from the department of police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony.
13. .................. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court Page no.134 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.
14. Thus, the submission that the whole case should be thrown overboard because of nonexamination of independent witness and reliance on the official witnesses cannot be accepted."
397 B. In the jugdement Mukesh (supra), the Hon'ble Supreme Court held:
"136. In the instant case, the recoveries made when the accused persons were in custody have been established with certainty. The witnesses who have deposed with regard to the recoveries have remained absolutely unshaken and, in fact, nothing has been elicited from them to disprove their creditworthiness. Mr Luthra, learned Senior Counsel for the State, has not placed reliance on any kind of confessional statement made by the accused persons. He has only taken us through the statement to show how the recoveries have taken place and how they are connected or linked with the further investigation which matches the investigation as is reflected from the DNA profiling and other scientific evidence. ......................"
137. On a studied scrutiny of the arrest memo, statements recorded under Section 27 of the Evidence Act, 1872 and the disclosure made in pursuance thereof, we find that the recoveries of articles belonging to the informant and the victim from the cus tody of the accused persons cannot be discarded. The recovery is founded on the state ments of disclosure. The items that have been seized and the places from where they have been seized, as is limpid, are within the special knowledge of the accused per sons. No explanation has come on record from the accused persons explaining as to how they had got into possession of the said articles. What is argued before us is that the said recoveries have really not been made from the accused persons but have been planted by the investigating agency with them. On a reading of the evidence of the witnesses who constituted the investigating team, we do not notice anything in this regard. The submission, if we allow ourselves to say so, is wholly untenable and a fu tile attempt to avoid the incriminating circumstance that is against the accused per sons.
444................................Section 27 is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby Page no.135 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave that the information is true and is a relevant fact and accordingly it can be safely al lowed to be given in evidence.
445. Section 27 has prescribed two limitations for determining how much of the information received from the accused can be proved against him: (i) the information must be such as the accused has caused discovery of the fact i.e. the fact must be the consequence, and the information the cause of its discovery; (ii) the information must "relate distinctly" to the fact discovered. Both the conditions must be satisfied. Various requirements of Section 27 of the Evidence Act are succinctly summed up in Anter Singh v. State of Rajasthan [Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 :
2005 SCC (Cri) 597] : (SCC p. 665, para 16) "16. The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connect ing it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information re ceived from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
447. Even though, the arrest and recovery under Section 27 of the Evidence Act is often sought to be misused, the courts cannot be expected to completely ignore how crucial are the recoveries made under Section 27 in an investigation. The legislature while incorporating Section 27, as an exception to Sections 24, 25 and 26 of the Evi dence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process. The recovery made under Section 27 of the Evidence Act not only acts as the foundation stone for proceeding with an investigation, but also com pletes the chain of circumstances. Once the recovery is proved by the prosecution, bur den of proof on the defence to rebut the same is very strict, which cannot be dis charged merely by pointing at procedural irregularities in making the recoveries, es Page no.136 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave pecially when the recovery is corroborated by direct as well as circumstantial evi dence, especially when the investigating officer assures that failure in examining inde pendent witness while making the recoveries was not deliberate or mala fide, rather it was on account of exceptional circumstances attending the investigation process.
448. While the prosecution has been able to prove the recoveries made at the be hest of the accused, the defence counsel repeatedly argued in favour of discarding the recoveries made, on the ground that no independent witnesses were examined while effecting such recoveries and preparing seizure memos.
449. The above contention of the defence counsel urges one to look into the specifics of Section 27 of the Evidence Act. As a matter of fact, need of examining in dependent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by ensuring transparency and credibility in the investigation of a criminal case. In the present case, PW 80 SI Pratibha Sharma has deposed in her crossexamination that no independent person had agreed to become a witness and in the light of such a statement, there is no reason for the courts to doubt the version of the police and the recoveries made.
450. When recovery is made pursuant to the statement of the accused, seizure memo prepared by the investigating officer need not mandatorily be attested by inde pendent witnesses. In State (Govt. of NCT of Delhi) v. Sunil [State (Govt. of NCT of Delhi) v. Sunil, (2001) 1 SCC 652 : 2001 SCC (Cri) 248] , it was held that nonat testation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles' list consequent upon the statement of the accused. It was further held that there was no requirement, either under Section 27 of the Evidence Act or under Section 161 CrPC to obtain signature of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.
452. In the light of above discussion, it is held that recoveries made pursuant to disclosure statement of the accused are duly proved by the prosecution and there is no substantial reason to discard the same. Recovery of articles of the PW 1 and also that of victim at the instance of the accused is a strong incriminating evidence against the Page no.137 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave accused, especially when no plausible explanation is forthcoming from the accused. Further, as discussed infra, the scientific examination of the articles recovered com pletely place them in line with the chain of events described by the prosecution."
397 C. In the judgment titled as "Vasanta Sampat Dupare v. State of Maharash tra", reported in (2015) 1 SCC 253, the Hon'ble Supreme Court held:
27. In the case at hand, as is perceptible, the recovery had taken place when the appellant was accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch wit nesses have supported the seizure and nothing has been brought on record to discredit their testimony.
28. Additionally, another aspect can also be taken note of. The fact that the ap pellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 :
1979 SCC (Cri) 656] wherein the Court after referring to the decision in H.P. Admn. v. Om Prakash [(1972) 1 SCC 249 : 1972 SCC (Cri) 88] held thus: (Prakash Chand case [(1979) 3 SCC 90 : 1979 SCC (Cri) 656] , SCC p. 95, para 8) "8. ... There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by Section 162 of the Criminal Procedure Code. What is excluded by Section 162 of the Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the cir cumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, un der Section 8 of the Evidence Act, irrespective of whether any statement by the ac cused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
29. In A.N. Venkatesh v. State of Karnataka [(2005) 7 SCC 714 : 2005 SCC (Cri) 1938] it has been ruled that: (SCC p. 721, para 9) "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused per son is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admis Page no.138 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave sible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656] . Even if we hold that the disclosure statement made by the appellantsaccused (Exts. P15 and P16) is not admissible under Section 27 of the Evidence Act, still it is rele vant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A1 and A2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Sec tion 8 of the Evidence Act."
398. In view of the above cited judgments and forgoing discussions, it can be held that in the present case, the recoveries made when the accused persons were in custody have been established with certainty. The testimony of the recovery witnesses remained consistent and corroborated each other in material particulars and remained absolutely unshaken and, in fact, nothing has been elicited from them to disprove their creditworthiness. The recovery is founded on the statements of disclosure. The items that have been seized and the places from where they had been seized were within the special knowledge of the accused persons. No explanation has come on record from the accused persons explaining as to how they had got the knowledge and got into possession of the articles as mentioned above. Counsel for the accused argued that the said recoveries have not been made the instance of the accused persons but have been planted by PW49. On a reading of the evidence of the witnesses who constituted the investigating team, I do not notice anything in this regard. Further, in the present case, regarding the recovery of the articles from the different places at the instance of the accused, it is nowhere the case of the accused that the places from where the articles got recovered were easily accessible to the public or some public persons had planted the said articles at that places.
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399. As a matter of fact, need of examining independent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by en suring transparency and credibility in the investigation of a criminal case. In the present case, PW 25 and PW43 have deposed that no independent person had agreed to become a witness and in the light of such a statement, there is no reason for the court to doubt the version of the police and the recoveries made. When re covery is made pursuant to the statement of the accused, seizure memo prepared by the investigating officer need not mandatorily be attested by independent wit nesses. Nonattestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles' list consequent upon the statement of the accused. There was no requirement, either under Section 27 of the Evidence Act or under Section 161 CrPC to obtain signature of independent witnesses. If the ver sion of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.
400. In the light of above discussion, it is held that recoveries made pursuant to disclosure statement of the accused are duly proved by the prosecution and there is no substantial reason to discard the same. Recovery of articles of the deceased at the instance of the accused is a strong incriminating evidence against the accused, especially when no plausible explanation is forthcoming from the accused. Fur ther, the scientific examination of the articles recovered completely place them in line with the chain of events described by the prosecution.
401. Additionally, the accused had led the police officer to find out the spot where the crime was committed, where the articles including the articles of the deceased were concealed, the drain where the swift car was washed and the place where it was parked eloquently speak of their conduct as the same is admissible in evidence to establish his conduct.
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402. In view of the foregoing discussions, it can be held that the judgments relied upon by counsel for the accused i.e. Riaz Ali vs State (Govt. of NCT) of Delhi 2012 SCC Online Del 1091; State vs Om Prakash & Ors. 2013 VIII AD (DELHI) 579;
Usman vs State ( N.C.T. of Delhi)2010 SCC Online Del 1860; Sans Pal Singh vs State of Delhi (1998) 2 SCC 371, Mahavir vs The State of Haryana 2009 SCC Online P&H 1336; State of Punjab vs Ajaib Singh & Ors 2004 (2) Crimes 459 (SC) and Balbir Singh @ Beera vs State of Punjab 2012 Lawsuit (P&H) 1079 are of no benefit to the accused.
DEPOSIT OF THE SWIFT CAR
403. It is evident from the testimony of PW49 that on 26.07.2012, the swift car was seized from Amar Colony, Lajpat Nagar vide pointing cum seizure memo Ex. PW25/Z2. PW49 also deposed that HC Devender had towed the Swift car to the police station through the crane and he got entry recorded regarding seizure of the car in register no.19. In his cross examination, no suggestion to the contrary given. PW25 also deposed to this effect.
404. PW11 in his cross examination deposed that the swift car alongwith its key was deposited in Malkhana on 26.07.2012 vide entry Ex.PW11/C. The exhibits re mained safe in his custody and were not tampered with. Hence, it can be held that the swift car along with recovered articles were deposited in the malkhana at earliest and remained untampered. No suggestion was given to him that the arti cles were tampered while remained in his custody.
405. As evident from the testimony of PW11, PW48 and PW49, the rear smaller window pane on the right rear side of the swift car was broken. Counsel for the Page no.141 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave accused pleaded that this raises a doubt that the articles found from the said car were planted one.
406. In the present case, the places from where the articles were recovered from the swift car revealed that the same could not be placed at that particular places by throwing from the said space which is also not the case of the accused. Further, no suggestion was given to PW49 that through the said broken portion of the window, he or some public person had planted the articles in the said car. Rather, during the cross examination of PW25, the stand of the accused was that it was PW49 who planted the articles in the said car on opening of the swift car with the key. Therefore, it can be held that though the window pane was broken but no article was placed in the swift car through that space. Hence, there is no substance in the plea raised by counsel for the accused.
EXMINATION OF SWIFT CAR BY FORESIC TEAM
407. Case of the prosecution is that on 27.07.2012, FSL team was visited the PS Murya Enclave and conducted the forensic inspection of the swift car. PW1 pre pared the crime team report Ex. PW1/A and lifted the articles.
408. Counsel for the accused pleaded that according to the prosecution, the swift car was seized on 26.07.2018 vide seizure memo Ex.PW25/Z2 and was examined through PW1 on 27.07.2012. However, examination of the said car was not conducted at Amar Colony, Lajpat Nagar where it was found. No witness from PS Lajpat Nagar to the seizure memo was made. These facts raise a doubt as to the seizure of the said car. Further, there was delay in examination of the same.
409. Counsel for the accused also pleaded that in Ex.PW46/B, the articles seized from the swift car were mentioned but no signature of any FSL official is there.
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410. Counsel for the accused pleaded that PW1 did not used her official seal to seal the articles from the swift car. As such, the sealing of the said articles is doubtful.
411. Counsel for the accused pleaded that according to the prosecution, blood group of the deceased was B. However, on the paper cutter, there was no reaction though human blood was detected thereon. As such, the paper cutter was planted upon the accused persons.
412. PW46 deposed that on 27.07.2012, FSL team visited the police station and inspected the swift car in his presence as well as presence of PW49. FSL team lifted 10 exhibits from the said car including one paper cutter and proved the seizure memo Ex.PW46/A. The articles from serial no.1 to 10 were seized vide seizure memo Ex.PW46/B.
413. PW49 deposed that he obtained the key of the swift car from MHC(M). No suggestion to the contrary was given. He also deposed about inspection of the said car by FSL and lifting of the articles.
414. PW1 proved the crime scene report Ex.PW1/A wherein she mentioned the articles collected from the said car. In her cross examination, no suggestion was given that she had not inspected the swift car on 27.07.2012 or that her crime scene report Ex.PW1/A is a false and fabricated document or that the articles as mentioned in the said report were not lifted from the swift car that day. No question was put to her that there would be difference in quality of the exhibits and her report to this effect if the exhibits would have been lifted at the place where the swift car was initial parked and where she had examined the said car i.e. PS Maurya Enclave. Further, counsel for the accused has not put any question to PW49 as to why he did not get the swift car examined at Amar Colony itself or Page no.143 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave that due to his said act, the quality of the exhibits had been compromised. Therefore, there is no substance in the plea raised by counsel for the accused to his effect.
415. PW1 in her cross examination specifically mentioned that the articles which she lifted from the said car, were handed over to PW49 that day itself i.e. on 27.07.2012. No suggestion to the contrary was given to her. PW49 in his examination specifically deposed that once the said exhibits were handed over to him, he seized and sealed the same immediately. In his cross examination, no suggestion to the contrary was given. It is evident from the testimony of PW49 that the said exhibits were deposited in the malkhana that day itself.
416. Hence, it can be held that on 27.07.2012, PW1 inspected the swift car, collected the articles and prepared the crime scene report Ex. PW1/A but had not conducted the forensic examination of the same that day. Hence, being the case property, she handed over the same to PW49 for further action. Further, counsel for the accused has failed to point out any procedure that it was the duty of PW1 to seal the articles lifted by her with her official seal. Even, no such suggestion was put either to PW1 or PW49 that they were supposed to do so or by not doing so they had committed the material procedural lapses. In view of the foregoing discussions, it can be held that merely because seizure memo Ex.PW46/B is not signed by members of the FSL team is not a ground to doubt the same. Hence, there is no substance in the pleas raised by counsel for the accused to this effect.
DEPOSIT OF 24 PARCELS AND THEIR SENDING OVER TO FSL
417. It is evident from the testimony of PW13 that on 05.09.2012, he handed over one sealed plastic box and 05 pullandas to PW22 for depositing with FSL Ro hini Delhi vide entry at point B of Ex.PW11/A. That day, he also handed over 7 sealed pullandas with seal of BSA hospital and 17 sealed pullandas with seal of Page no.144 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave "AS" again to PW22 vide entry at point D of Ex.PW11/A for depositing with FSL. He proved the road certificate Ex.PW13/A and Ex.PW13/C and receipts Ex.PW 13/B and Ex.PW13/D to that effect. PW22 corroborates the testimony of PW13 to this effect and deposed that on 05.09.2012, he deposited the exhibits vide two RC Ex.PW22/A and Ex.PW22/B with FSL and submitted the receipts of acknowledg ment Ex.PW22/C and Ex.PW22/D with MHC(M). PW22 specifically deposed that the exhibits remained untampered with by any one till it remained in his posses sion. In his cross examination, the accused failed to shake the credibility of the said witnesses.
418. To this effect, PW1 deposed that on 05.09.2012, the exhibits received in the FSL Laboratory for examination and the same were having the seal of "AS". FSL report Ex.PW1/D reveals that when the said exhibits were received in the FSL, the same were intact. In her cross examination, no suggestion given to her that the seal was not intact or had been tampered with or had not tallied with the sample seal.
419. In view of the foregoing discussions, it can be held that 27.07.2012, PW1 lifted the exhibits from the swift car and handed over the same to PW49 who seized, sealed and then deposited the same in Malkhana without any delay. The exhibits remained un tampered and the seal remained intact from Malkhana to reaching the FSL for examination on 05.09.2012.
420. It is evident from the testimony of PW1 that on examination of the exhibits sent to her, she prepared the Biological report Ex.PW1/B and Serological report Ex.PW1/C.
421. Perusal of the biological report Ex.PW1/B reveals that PW1 examined total 24 parcels containing the exhibits as mentioned therein. As per the said report, parcel no.3 contained the clothes of the deceased, parcel no.4 contained the brown gauze cloth piece described as blood on gauze, parcel no.10 contained the cloths Page no.145 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave of the accused no.1, parcel no.11 contained the cloths of the accused no.2, parcel no.12 contained the cloths of the accused no.3, parcel no.13 contained the cloths of the accused no.4 and parcel no.24 contained the paper cutter. As per report, blood was detected on the above mentioned exhibits. Blood was also detected on the exhibits 8, 9, 14 (a) to (c), 19 and 24.
422. Perusal of the serological report Ex.PW1/C reveals that human blood of group "B" was detected on exhibit in parcel no.3,4, 10,11, 12, and 13. So far as exhibits in the parcel no. 8, 9, 14 (a) to (c), 19 and 24 are concerned, the human blood was detected, however, there was no reaction.
423. In cross examination of PW1, not a single suggestion was given to question the authenticity and correctness of the said reports and the finding mentioned therein. In cross examination of PW1, no question was put to her that due to time gap between the seizure of the exhibits and their examination, the quality of the exhibits had been degraded or the sample got contaminated which affected the quality of the result. Even no suggestion was given to her that the exhibits or their quantity or quality were not sufficient for the proper forensic examination.
424. In the judgment titled as "Kiriti Pal v. State of W.B.", reported in (2015) 11 SCC 178, the Hon'ble Supreme Court held:
"23. Wooden butts recovered on 2812009 were sent to the forensic science laboratory. On the seized wooden butts, blood was detected, but the same was insufficient for serological test (Ext. 56). Detection of blood on the seized wooden butts cannot be discarded on the ground that it was insufficient for serological test. There is no legal proposition, the detection of blood is unwor thy of acceptance merely because it was insufficient for serological test and the case of the prosecution cannot be doubted on that score."
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425. In view of the foregoing discussions, it stands proved that the human blood was detected on the exhibits 3,4,8, 9,10,11, 12, 13, 14 (a) to (c), 19 and 24. Blood group of the deceased was "B" and the same blood group was detected on the exhibits 3,4, 10,11, 12, and 13. In view of the above cited judgment and foregoing discussions, it can be held that there is no legal provision, the detection of blood is unworthy of acceptance merely because it was insufficient for serological test qua the exhibits 8, 9, 14 (a) to (c), 19 and 24 i.e. the paper cutter and the prosecution case cannot be doubted on that ground. Hence, the judgment "Anjan Kumar Sarma and Others vs State of Assam (2017) 14 SCC 359" relied upon by counsel for the accused is of no benefit for the accused. .
DNA ANALYSIS
426. Case of the prosecution is that during investigation, the blood stained articles including the clothes of all the accused persons were recovered. Blood gauze of the blood of the deceased was also seized. The said exhibits were sent to FSL for DNA analysis. As per DNA analysis report Ex.PW41/A, the STR analysis performed on the source of exhibit 4 i.e. blood stained gauge clothe piece of the deceased was similar to the source of the exhibit i.e. clothes of the accused person. In other words, the blood found on the clothes of the accused was that of the deceased. To prove the same, the prosecution examination PW41.
427. Counsel for the accused pleaded that according to the prosecution, the incident took place in the intervening night of 17.07.2012 and 18.07.2012 and the exhibits were received in the FSL on 05.09.2012. Subsequently, on 10.12.2012, the subject exhibits were assigned to PW41 who thereafter, examined the same. As such, the exhibits had got contaminated due to improper handling of the same and delay in sending the same to FSL. Further, there was delay in examination of the exhibits.
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428. Counsel for the accused also pleaded that PW41 though in his examination mentioned about the method adopted by him in conducting DNA analysis on the exhibits, however, in his report Ex.PW41/A, PW41 has not mentioned the test conducted and method applied by him nor had produced the notes prepared by him along with the report. Even the quantity of the material, design of DNA and other relevant particular are not mentioned in the said report. Accordingly, the said report is not reliable in nature. In fact, method of conducting the DNA test was contrary to the well established principles and /or methods.
429. Counsel for the accused also pleaded that the prosecution relied upon Ex.P 4 i.e. gauze cloth piece i.e. "blood on gauze" (the deceased). However, PW41 had not declared the blood group of the deceased.
430. In the judgment titled as "State (through CBI) vs. Santosh Kumar Singh", reported in (2006) 92 DRJ 87 (DB), the Hon'ble Delhi High Court held:
"25. ............................................................He submitted that Dr. G.V. Rao did not examine the exhibits in the examination room in order to establish that the samples were not contaminated inter se. No steps were taken to avoid contamination. Counsel submitted that Dr. G.v. Rao admits that the clothes of the deceased were required to be examined under UVTrans Illuminator to check presence of semen stain. This test was not mentioned as having been done in the work book. He also contended that inhouse process used for elution has not been proved. Counsel has elaborately attacked the method of conducting the DNA test and submitted that the entire test was contrary to the well established principles and/or method and, therefore, cannot be taken to be a proof to show that the DNA of the sperm on the vaginal swab matched that of the blood of the accused Page no.148 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave Respondent.....................................................In any event, contamination could not be ruled out as proper controls in PCR analysis were not used which could lead to false positive results.
45. ..................................There is apparent tampering with the exhibits and that proper tests were not conducted while performing the DNA tests and, therefore, the pinion of the experts regarding matching of signature of DNA is neither reliable nor trustworthy.......................................................................Dealing with the question of tampering with the exhibits, we find that there was no possibility of tampering with the exhibits nor has any tampering being done. It is in evidence that the bundle of clothes of the deceased prepared by the doctors at the time of postmortem examination............................................................there is nothing on record to show that the seals were ever tampered with, nor was such a suggestion made to any of the doctors concerned or the police officials having received the samples and transported the same to the CCMB, Hyderabad.
46..........................................................The trial court though has held that the possibility of tampering cannot be ruled out has not elaborated as to what is the nature of tampering and its effect. We find that there is no evidence to show that there was any tampering with the exhibits forwarded to CCMB, Hyderabad, nor any reason for tampering with the same...........
47...................................................................We may also mention here that the counsel for the accused at no stage of the trial and nor before us challenged that the blood drawn at 'Ram Manohar Lohia Hospital' and conveyed to be CCMB, Hyderabad as not of the Page no.149 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave accused. ......................................We also note that at no stage did the accused lead any evidence to the contrary nor sought to have an independent DNA test conducted to counter the report of Dr. Lalji and Dr. G.V. Rao.
48.......................................................The next question that engages us is whether the DNA test conducted was proper? It is in evidence of Dr. Lalji that the method used and the test conducted in determining and arriving at the conclusion were done as per standard practice as also per scientific technology suitable for such tests. The trial court has elaborately introduced its learning based on literature which, to a large extent, was never even put to the expert witnesses and even otherwise there is no positive evidence on record to show that the test so conducted by the experts were perverse and/or not in keeping with the standard scientific methodology.
431. In the judgment titled as "Dharam Deo Yadav v. State of U.P.", reported in (2014) 5 SCC 509, the Hon'ble Supreme Court held:
"34. The counsel appearing for the appellant, as already indi cated, questioned the reliability of DNA report and its admissibility in criminal investigation. It was pointed out that DNA is known for being susceptible to damage from moisture, heat, infrared radiation, etc. and that may degrade the sample of DNA. Further, it was pointed out that during carriage, during its storage at police stations or laboratories, it is prone to contamination and, therefore, the ex tent of absoluteness can never be attributed to DNA results.
35...................... The qualifications or expertise of PW 21 was never in doubt. The method he adopted for DNA testing was STR analysis...................
36. The DNA stands for deoxyribonucleic acid, which is the bio logical blueprint of every life. DNA is made up of a double stranded structure consisting of a deoxyribose sugar and phosphate backbone, Page no.150 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave crosslinked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. The most important role of DNA profile is in the identification, such as an individual and his blood relations such as mother, father, brother, and so on..................... Of course, debate lingers over the safeguards that should be required in testing samples and in present ing the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality con trol and quality assurance procedures in the laboratory. Close rela tives have more genes in common than individuals and various pro cedures have been proposed for dealing with a possibility that true source of forensic DNA is of close relative. So far as this case is con cerned, the DNA sample got from the skeleton matched with the blood sample of the father of the deceased and all the sampling and testing have been done by the experts whose scientific knowledge and experience have not been doubted in these proceedings. We have, therefore, no reason to discard the evidence of PW 19, PW 20 and PW 21.................................."
432. In the judgment Mukesh (supra), the Hon'ble Supreme Court held:
"219. In Pantangi Balarama Venkata Ganesh v. State of A.P. [Pan tangi Balarama Venkata Ganesh v. State of A.P., (2009) 14 SCC 607 : (2010) 2 SCC (Cri) 190] , a twoJudge Bench had explained as to what is DNA in the following manner: (SCC pp. 61718, paras 4142) "41. Submission of Mr Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means:
'Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identifica tion of an individual is done like in the traditional method of identi fying fingerprints of offenders. The identification is hundred per cent precise, experts opine.' There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See arti cle of Lalji Singh, Centre for Cellular and Molecular Biology, Hyder Page no.151 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave abad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.
42. Indisputably, the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In crossexamina tion, PW 46 had stated as under:
'If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The proba bility of two persons except identical twins having the same DNA fin gerprint is around 1 in 30 billion world population.' "
220. In Santosh Kumar Singh v. State [Santosh Kumar Singh v. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469] , which was a case of a young girl who was raped and murdered, the DNA reports were relied upon by the High Court [State v. Santosh Kumar Singh, 2006 SCC OnLine Del 1270 : (2006) 92 DRJ 87] which were approved by this Court and it was held thus: (Santosh Kumar case [Santosh Kumar Singh v. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469] , SCC p. 772, para 71) "71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram[Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 : 2001 SCC (Cri) 892] . In arriving at its conclu sions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in er ror on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9."
228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for nonac ceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."
433. As held above, after postmortem on the body of the deceased, PW37 handed over the exhibits to PW49 who duly sealed and seized them. It is also evident from the testimony of PW25, PW43 and PW49 that during investigation, PW49 seized the said exhibits including the cloths of the accused persons and Page no.152 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave sealed them accordingly. As held above, from the date of seizure of the said exhibits till their receipt by PW1, they remained un tampered and intact. As evident from the testimony of PW1, 24 parcels in intact condition were received in the FSL for examination.
434. PW41 specifically deposed that out of 24 parcels received in FSL on 05.09.2012, 8 parcels were sent to DNA division of FSL for DNA analysis and the same were having the seal of "FSL MU Delhi". As per report of Ex.PW41/A, the seals were intact when the said parcels were received in the DNA division. PW41 in his cross examination specifically deposed that he received the samples through his In Charge in intact condition. No suggestions to the contrary were given by counsel for the accused. In cross examination of PW41, no suggestion was given that when the said exhibits were received in FSL, they had already been tampered or that in the FSL, the said exhibits were tampered.
435. In view of the foregoing discussions, it can be held that from the date of the seizure of the said exhibits till their examination in FSL, the exhibits remained un tampered and their seals were intact.
436. It is evident from the testimony of PW41 that he conducted the biological examination of DNA analysis on the said exhibits and on biological examination, blood was detected on the exhibits 4,10a, 10b, 11a, 11b, 12, 13, 14, 19 and 24. As per the serological report, Ex.PW1/C human blood was detected on the said exhibits and on the exhibits 4,10a, 10b, 11a, 11b, 12 and 13, the same was of blood group B. As discussed above, the said findings of the said report remained unrebutted. Hence, there is no substance in the plea raised by counsel for the accused that PW41 has not made any attempt to find out the blood group on the said exhibits because firstly, he was not required to do so and secondly, the said exercise had already been done by the specific division via serological test. More so, as held above, the said exhibits were received in DNA division in sealed condition from another division of FSL.
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FIR No. 180/2012PS: Maurya Enclave
437. PW41 in his examination in chief as well as report Ex.PW41/A specifically mentioned about the procedure adopted by him in conducting the DNA analysis and the result thereof.
438. Regarding his qualification and experience, PW41 specifically deposed that he was Senior Scientific Officer (Biology) FSL, Rohini, Delhi at the relevant period and had examined 250 DNA sample in his official capacity. In cross examination of PW41, counsel for the accused has not questioned the qualification, competency and capability of PW41 to conduct the DNA examination. Counsel for the accused has not questioned the integrity of PW41 in examination the said exhibits. Therefore, it can be held that PW41 was qualified, competent and capable to conduct the DNA examination; and his integrity was not doubtful.
439. In cross examination of PW41, counsel for the accused put many questions to him to ascertain as to how a sample should to be kept and what should be the atmosphere to save them from putrefication. In the background of the said questions, he pleaded that in the present case, it is highly doubtful that the said conditions would have been fulfilled to keep the exhibits in good condition in the present case. Meaning thereby it cannot be ruled out that when the exhibits were examined by PW41, the quality and the quantity of the exhibits were not good and the exhibits had already been contaminated.
440. No suggestion was given to PW49 or the concerned MHCM that the said exhibits were not properly kept in the malkhana or once they were sent to FSL, they had already been contaminated. It is evident from the record that the said samples were received in the FSL on 05.09.2012. No suggestion was given to PW1 and PW41 that once they started examination of the exhibits, all the exhibits had already been contaminated. In fact, no suggestion whatsoever was given to PW41 that whatever result he had given that was not possible due to poor quality and insufficient quantity of the exhibits examined by him. Hence, it can be held that Page no.154 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave the said arguments raised by counsel for the accused is based on presumption, surmises and conjectures only.
441. PW41 in his report Ex.PW41/A has mentioned the procedure adopted by him for DNA analysis. In his cross examination, he deposed that there had been various methods and procedures for conducting the DNA isolation and he adopted one of the methods i.e. phenol chloroform method. Not only that in his cross examination, he explained the entire process which he followed to reach the conclusion. In his cross examination, not a single suggestion was given by counsel for the accused that the procedure adopted by him was incorrect or was not up to the standard or vide the said process, no one could conduct the DNA analysis or vide the said process, the conclusion as mentioned in the said report cannot be reached. As such, counsel for the accused has not questioned the correctness and accuracy of the procedure adopted by PW41 for DNA analysis. Therefore, merely because PW41 had not prepared the rough notes is not sufficient to discard his testimony.
442. Regarding the accuracy of the result, PW 41 deposed that every individual has a unique DNA profile except for monozygotic identical case. No suggestion to the contrary was given by counsel for the accused.
443. As per the report DNA report, the complete DNA profile could not be generated from Ex. 10B, 11a and 24 due to inhibitors/degradation of samples. DNA could not be isolated from Ex. 14 and Ex. 19 due to degradation of the sample. If PW41 had to give the opinion at the instance of PW49 then he would have given result on those degraded exhibits also. Further, it is nowhere case of the accused that PW41 had adopted the pick and choose method in giving the result. Meaning thereby if the quality and quantity of all the exhibits were not up to the mark for DNA analysis, then PW41 would have mentioned so about all the said exhibits but not for only some of them. Rather, the approach adopted by PW41 and contents of his report reveal that he filed a report on the basis of the Page no.155 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave material examined by him in their true sense.
444. During the course of the arguments, counsel for the accused pleaded that while conducting the DNA examination, PW41 has not followed the well established principle and /or method. However, in cross examination of PW41, counsel for the accused has not confronted the said witness with the alleged principles/methods to explain the said procedure. Hence, there is no substance in the said plea raised by counsel for the accused.
445. In view of the above cited judgments and forgoing discussions, it can be held that DNA report deserves to be accepted unless it is absolutely dented and for nonacceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted. As held above, the objections raised by counsel for the accused are not sustainable in law. Hence, DNA report Ex. PW41/A is an authenticated one and is reliable in nature.
ABSCONDENCE
446. In view of the aforesaid discussions, it stands proved that the accused no.1, 2 and 4 were in Delhi and at the spot in the intervening night of 17.07.2012 and 18.07.2012. It is also proved from the CDR data of their mobile phones that even on 18.07.2012, they were in Delhi when the inquiries were being made from ac cused no.3. Subsequently, the accused no. 1, 2 and 4 were not found at their houses and their mobile phones were switched off. The accused no. 1,2 and 4 have failed to justify their absence from their houses during the period. Hence, it can be inferred that once, they came to know about the inquiry being made from the accused no.3, the accused no.1, 2 and 4 had absconded from their houses for a particular period after the incident. As such, an adverse inference can be drawn against them.
Page no.156 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave CIRCUMSTANTIAL EVIDENCE
447. In the judgment titled as " Sharad Birdhichand Sarda Vs. State of Maharastra", reported in AIR 1984 SC 1622, the Hon'ble Supreme Court held:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
(ii) 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;
(iii) The circumstances should be of conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
448. In the case titled as "Santosh Kumar Singh v. State", reported in (2010) 9 SCC 747, the Hon'ble Supreme Court held:
"42.................................. It has been held time and again that a false plea taken by an accused in a case of circumstantial evidence is another link in the chain. In Trimukh Maroti Kirkan v. State of Ma harashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] it has been held: (SCC p. 689, para 12) "12. ... The normal principle in a case based on circumstantial evi dence is that the circumstances from which an inference of guilt is Page no.157 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the ac cused and inconsistent with their innocence."
and again: (SCC p. 690, para 14) "14. If an offence takes place inside the privacy of a house and in such circumstances, where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
449. Applying the above principles of law to the present case, the prosecution has proved that the deceased was known to the accused no.3. All the accused persons were known to each other on the date of incident. The deceased was Page no.158 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave abducted by the accused in the swift car. All the accused were present in the swift car in which the deceased was abducted. In the intervening night of 17.07.2012 and 18.07.2012, all the accused were together and were out of their houses. Even during the period when the deceased was murdered, they all were together in the swift car. The accused no.2 purchased four bandages and suthol liquid i.e. not the life saving drugs from the Apollo Pharmacy that too without justification. The bandages were found on the body of the deceased. The recoveries of the articles were effected at the instance of the accused persons from the places which were exclusively within their knowledge. Blood stains of the deceased were found not only in the swift car but also on the cloths of the accused persons. Accused no.1,2 and 4 absconded after the incident. As per ballistic report, the bullets which resulted in death of the deceased were fired from the pistol which was recovered at the instance of accused no.1. The location of the accused persons was in the vicinity where the dead body of the deceased was found. The mode and manner in which the accused persons used their mobile phones at that night and communicated with each other are more than suspicious in nature. The accused person have failed to give any explanation regarding the incriminating evidence found and proved against them. In view of the forgoing discussions, it can be held that in the present case, the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and shows that in all human probability the act must have been done by the accused.
MOTIVE
450. Counsel for the accused pleaded that to prove the offence of abduction for ransom, the prosecution relied upon the testimony of PW18. The prosecution examined PW18 to prove that he had Rs. 25 lacs approx. in his house as a sale consideration and the accused might be knowing about the same. However, statement of PW18 u/s 161 CrPC to this effect was recorded at belated stage.
Page no.159 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave Further, PW18 has failed to show that he had Rs. 25 lacs with him that day. He also pleaded that according to the prosecution, from 11:00 am till his murder, the deceased remained with the accused persons. In the meantime, they had sufficient time to make a call to father of the deceased i.e. PW18 to demand money which was not done. PW18 has also nowhere stated that he had ever received a single call for extortion. He has also failed to show any enmity with the accused persons. As such, the prosecution has failed to prove that the accused had any motive to commit the offence and the same is fatal to the case of the prosecution. To substantiate the same, he relied upon the judgment "Hakam Singh vs. State of Rajasthan, 2005 SCC online Raj 358".
451. In the presence case, PW18 deposed that that they had entered into an agreement to sell of property in the year 2012 before the incident and had received Rs.25,00,000/ as part sale consideration. Firstly, PW18 has failed to substantiate the same. Secondly, he admitted that he had not received any ransom call regarding the deceased.
452. In view of the foregoing discussions, it can be held that the active involvement of all the accused in the subject incident stands proved. As held in the judgment relied upon by the accused that the absence of the motive in itself is not a ground to discard the prosecution case. Therefore, in the given circumstances, the failure of the prosecution to prove the said facts is not fatal to its case..
453. As held above, the injuries no. (iv) to (viii) as mentioned in the PMR report Ex. PW37/A were inflicted on the body of the deceased through the paper cutter Ex.P10. As per the said report, two bullets were also fired on the deceased due to which he sustained two bullet injuries and the combined effect of the said bullet injuries resulted in the death of the deceased. The said injuries were ante mortem in nature. After death of the deceased, the dead body of the deceased was burnt. Hence, the injuries sustained by the deceased, their cause and cause of his death stand proved. It is also proved that after the death of the deceased, his body Page no.160 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave was set on fire due to which burn injuries were noticed on his body. As held above, the nexus between the accused, weapon of office, the injuries inflicted with those weapon and cause of death of the deceased stands proved.
454. The injuries no. (iv) to (viii) as mentioned in the PMR report Ex. PW37/A reveal that the deceased was helpless in the swift car and was tortured by the accused persons. The bullets were fired from such a close range, that time, there was no one nor any possibility of any to be in between the accused and the deceased. Therefore, there was no chance of missing of fire shots or that it would not hit the deceased. As such, it can be held that while committing the act the accused knew that it was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death of the deceased and committed such act without any excuse for incurring the risk of causing death of such injury. Thereafter, the accused threw the dead of the deceased on the road and set the same on fire which resulted in the burn injuries.
455. According to the prosecution, the first bullet was fired by the accused no.1 and the second bullet was fired by the accused no.4. However, there is no specific evidence on record to point out that the second bullet was fired by the accused no.4. At the same time, the fact remains that all the accused were present in the swift car along with the deceased when both the bullets were fired upon him which resulted in his death. As held above, the pistol was recovered from the possession and at the instance of accused no.1. As per ballistic report, the bullets which caused death of the deceased were fired from the said pistol. As such, the connection between the accused no. 1, the pistol and the bullets which resulted into the death of the deceased stands established. Now the onus has shifted upon the accused no. 1 as to who had used the said pistol and fired the bullets from the same, if it was not he. However, the accused no.1 has completely failed to discharge the said onus. In the given circumstances it can be inferred that it was the accused no.1 who had fired two bullets from the pistol which resulted in the death of the deceased.
Page no.161 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave CONSPIRACY
456. In the judgment titled as Mukesh (supra), the Hon'ble Supreme Court held:
463. The learned Amicus Mr Sanjay Hegde submitted that there is no specific evidence to prove that there was prior meeting of minds of the accused and that they had conspired together to commit grave of fence by use of iron rod, resulting in the death of the victim and, therefore, insertion/use of iron rod by any one of the accused cannot be attributed to all the accused in order to hold them guilty of the of fence of murder.
464. The essentials of the offence of conspiracy and the manner in which it can be proved has been laid down by this Court through a catena of judicial pronouncements and I choose to briefly recapitu late the law on the point, so as to determine whether the offence is made out in this case or not. Meeting of minds for committing an il legal act is sine qua non of the offence of conspiracy. It is also obvi ous that meeting of minds, thereby resulting in formation of a con sensus between the parties, can be a sudden act, spanning in a frac tion of a minute. It is neither necessary that each of the conspirators take active part in the commission of each and every conspiratorial act, nor is it necessary that all the conspirators must know each and every details of the conspiracy.....................
465. ................................. Kenny has succinctly stated that in mod ern times conspiracy is defined as an agreement of two or more per sons to effect any unlawful purpose, whether as their ultimate aim or only as a means to it. ...................... The meaning of an Page no.162 of 168 (Judgment) State Vs. Abhay Dewan & Ors.FIR No. 180/2012
PS: Maurya Enclave "agreement", he has explained by quoting following words of Lord Chelmsford [Denis Dowling Mulcahy v. R., (1868) LR 3 HL 306 (HL)] : (LR p. 328) "... agreement is an act in advancement of the intention which each person has conceived in his mind."
Kenny has further said that it is not mere intention, but the an nouncement and acceptance of intentions. However, it is not neces sary that an overt act is done; the offence is complete as soon as the parties have agreed as to their unlawful purpose, although nothing has yet been settled as to the means and devices to be employed for effecting it..........................
466. The most important aspect of the offence of conspiracy is that apart from being a distinct statutory offence, all the parties to the conspiracy are liable for the acts of each other and as an exception to the general law in the case of conspiracy intent i.e. mens rea alone constitutes a crime. As per Section 10 of the Evidence Act, once rea sonable ground is shown for believing that two or more persons have conspired to commit an offence then, anything done by any one of them in reference to their common intention, is admissible against the others. As held in State of Maharashtra v. Damu [State of Maha rashtra v. Damu, (2000) 6 SCC 269 : 2000 SCC (Cri) 1088] , the only condition for the application of the rule in Section 10 of the Evi dence Act is that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence.
468. Another significant aspect of the offence of criminal conspiracy is that it is very rare to find direct proof of it, because of the very fact that it is hatched in secrecy. Unlike other offences, criminal conspir acy in most of the cases is proved by circumstantial evidence only. It Page no.163 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave is extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. Conspiracy is a matter of inference, deduced from the words uttered, criminal acts of the accused done in furtherance of conspiracy...................
469. In Yogesh v. State of Maharashtra [Yogesh v. State of Maha rashtra, (2008) 10 SCC 394 : (2009) 1 SCC (Cri) 51] , this Court, after referring to the law laid down in several pronouncements, sum marised the core principles of law of conspiracy in the following words: (SCC p. 402, para 25) "25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surround ing circumstances and the conduct of the accused. But the incrimi nating circumstances must form a chain of events from which a con clusion about the guilt of the accused could be drawn. It is well set tled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an of fence does not take place pursuant to the illegal agreement."
470. In the present case, there is ample evidence proving the acts, statements and circumstances, establishing firm ground to hold that the accused who were present in the bus were in prior concert to commit the offence of rape. The prosecution has established that the accused were associated with each other. The criminal acts done in furtherance of conspiracy, is established by the sequence of events Page no.164 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave and the conduct of the accused. Existence of conspiracy and its ob jects could be inferred from the chain of events. The chain of events described by the victim in her dying declarations coupled with the testimony of PW 1 clearly establish that as soon as the complainant and the victim boarded the bus, the accused switched off the lights of the bus. Few accused pinned down PW 1 and others committed rape on the victim in the backside of the bus one after the other. The ac cused inserted iron rods in the private parts of the prosecutrix, drag ging her holding her hair and then threw her outside the bus. The victim has also maintained in her dying declaration that the accused persons were exhorting that the victim has died and she be thrown out of the bus. Ultimately, both the victim and the complainant were thrown out of the moving bus through the front door, having failed to throw them through the rear door. The chain of action and the act of finally throwing the victim and PW 1 out of the bus show that there was unity of object among the accused to commit rape and de stroy the evidence thereof.
472. As already stated in the beginning, in achieving the goal of the conspiracy, several offences committed by some of the conspirators may not be known to others, still all the accused will be held guilty of the offence of criminal conspiracy. The trial court has recorded that the victim's "complete alimentary canal from the level of duode num up to 5 cm from anal sphincter was completely damaged. It was beyond repair. Causing of damage to jejunum is indicative of the fact that the rods were inserted through vagina and/or anus up to the level of jejunum". Further "the septicaemia was the direct result of internal multiple injuries". Use of iron rod by one or more of the ac cused is sufficient to inculpate all the accused for the same. In the present case, gang rape and use of iron rod caused grave injuries to Page no.165 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave the victim's vagina and intestines; throwing her out of the bus in that vegetative state in chilled weather led to her death; all this tak ing place in the course of same transaction and with the active in volvement of all the accused is more than sufficient evidence to find the accused guilty of criminal conspiracy. I, thus, affirm the findings of the courts below with regard to conviction of all the accused under Section 120B IPC and Section 302 read with Section 120B IPC."
457. In the present case, there is ample evidence proving the acts, statements and circumstances, establishing firm ground to hold that the accused no. 1 and 3 abducted the deceased in the swift car and were joined by the accused no. 2 and 4 in prior concert in order that the deceased may be murdered or may be so dis posed of as to be put in danger of being murdered. The prosecution has estab lished that the accused were associated with each other. The criminal acts done in furtherance of conspiracy, is established by the sequence of events and the conduct of the accused. Existence of conspiracy and its objects could be inferred from the chain of events. The chain of events clearly establish that in the swift car, all the accused tortured the deceased and the accused no. 1 fired 2 bullet on the deceased which resulted in his death. Thereafter, they burnt the body of the deceased. Ulti mately, the deceased was thrown out of the swift car shows that there was unity of object among the accused to commit the abduction and murder of the deceased, and destroy the evidence thereof.
458. In achieving the goal of the conspiracy, several offences committed by some of the conspirators may not be known to others, still all the accused will be held guilty of the offence of criminal conspiracy. Use of the pistol by the accused no.1 is sufficient to inculpate all the accused for the same. In the present case, all this tak ing place in the course of same transaction and with the active involvement of all the accused is more than sufficient evidence to find the accused guilty of criminal conspiracy.
Page no.166 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
459. Counsel for the accused pleaded that the prosecution has to stand on his own legs to prove its case. Once, two views are possible the court should rely on the view which is favorable to the accused. He also discussed the principles of circumstantial evidence. In support of his submissions, he relied upon judgments K. Gopal Reddy vs State of Andhra Pradesh (AIR 1979 SC 387), Bollavaram Pedda Narsi Reddy and Others vs State of Andhra Pradesh (AIR 1991 SC 1468), Suchand Pal vs Phani Pal and Another (2003) 11 SCC 527, Bhagirath vs State of Madhya Pradesh (1976) 1 SCC 20, Kishore Chand vs State of Himachal Pradesh (AIR 1990 SC 2140) and Suresh and Anr. vs State of Haryana Crl. Appeal No.1445-1446 of 2012. There is no dispute to the settled legal position to this effect.
460. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any material infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and forensic evidence. The prosecution witnesses have been able to build up a continuous link. Therefore, the prosecution has been able to prove the necessary intent and knowledge of the accused to commit the murder of the deceased pursuant to which the accused committed the murder of deceased. As such, the prosecution has proved the essential ingredients of all the offences for which the accused are charged with.
461. Thus, the findings given are sufficient to convict all the accused under sec tion 120B IPC and section 364 read with section 120B IPC, section 302 read with section 120B IPC and section 201 read with section 120B IPC.
ARMS ACT Page no.167 of 168 (Judgment) State Vs. Abhay Dewan & Ors.
FIR No. 180/2012PS: Maurya Enclave
462. Sanction u/s 39 of the Arms Act Ex. PW51/ A and Ballistic report Ex. 50/A prove that pistol Ex.P1 was a firm arm within the meaning of the Arms Act and was in working condition. It is also proved that the said pistol was possessed and used by the accused no. 1 to fire shot on the deceased and the bullets recovered from the body of the deceased were fired through the said firearm and had caused the injuries him and resulted in his death. The accused no.1 got recovered the pistol. As held above, there is a direct nexus between the accused, weapon of the offence, the injuries inflicted with that weapon and the cause of death of the deceased. According to the prosecution, the accused no. 1 kept the same without any permission or licence. The accused no. 1 has failed to rebut the same. In view thereof, it can be held that accused no.1 possessed the said pistol and cartridge without requisite permission under the Arms Act and also used the same against the deceased. Therefore, the accused no. 1 is held guilty under sections 25/27 of Arms Act.
463. Accordingly, all the accused are convicted for the offences under section 120B IPC and section 364 read with section 120B IPC, section 302 read with sec tion 120B IPC and section 201 read with section 120B IPC. The accused no. 1 is also convicted under sections 25/27 of Arms Act. The accused no. 4 is acquitted for the offence under section 27 of Arms Act.
Digitally
signed by
PANKAJ
PANKAJ GUPTA
Announced in the open court GUPTA Date:
2018.09.17
15:51:22
on this 15th day of September, 2018. +0530
(Pankaj Gupta)
ASJFTC, NorthWest, Rohini Courts:
Delhi.
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