Delhi District Court
State vs Sunday Chinaka Uchem & Ors on 30 March, 2022
IN THE COURT OF SAMAR VISHAL,
ADDITIONAL SESSIONS JUDGE-08,
WEST DISTRICT: TIS HAZARI COURTS: DELHI
CNR No. DLWT01-000018-2011
SC No. 55952/2016
FIR No.291/2011
Police Station: Tilak Nagar
State Vs Sunday Chinaka Uchem & Ors
Under Section: 302/392/397/411/120B/34 IPC
In the matter of:
State
Versus
1) Sunday Chinaka Uchem
S/o Mr. Nicodemus Uchem
R/o H. No. E-31-32,
Hastsal Vihar, Uttam Nagar, New Delhi.
Permanent Address
Village- Ideato South, PS-IMO
State Police Head Quaerter Nigeria,
State-CID,
Country-Nigeria,
2) Bayem Victor
S/o Bayem Monday
R/o H No. E-32, Hastsal Vihar,
Uttam Nagar, New Delhi.
Permanent Address:
Village- 56, Iwzeu Street,
FIR No. 291/2011
State Vs. Sunday Chinaka Uchem & Ors. Page 1/109
Town-Abjor Delter STR,
State - Dalter,
Country - Nigiera
3) Kenneth Chidi Onyeaghala
S/o Richard Onyeaghala
R/o H No. E-32, Hastsal Vihar,
Uttam Nagar. New Delhi.
Permanent Address
r/o Village -Obioku, Odumara,
City - Obiorodo,
State - Mbaitolu Owerri IMO
Country- Nigeria.
4) Eziefula Samuel Uchemgbu
S/o Sh. Uchegbu Samuel
R/o H. No. E 31-32, Hastal Vihar,
Uttam Nagar. New Delhi.
Permanent Address
r/o Village & PS Ahiazu, Mbasi,
Town - Unuado,
State-IMO,
Country - Nigeria.
5) Emenike Decland Nwaegbe
R/o H. No. E 31-32, Hastal Vihar,
Uttam Nagar. New Delhi.
Date of Institution : 15.02.2013
Date of reserving Judgment : 16.03.2022
Date of pronouncement : 30.03.2022
FIR No. 291/2011
State Vs. Sunday Chinaka Uchem & Ors. Page 2/109
Appearances
For the State: Mr. Santosh Kumar, Additional Public Prosecutor.
For accused: Advocate Mr. Rajiv Mittal for accused
Sunday Chinaka Uchem and Bayem Victor.
Advocate Mr. Kanhaiya Singhal for
accused Eziefula Samuel Uchegbu
and Keeneth Chidi Onyeaghala.
Advocate Ms. Shefali Sharma for accused
Emenike Decland Nwaegbe.
JUDGMENT
1. This is a trial of the murder of Gurcharan Singh Sawhney in the noon of 31.08.2011. The accused Sunday Chinaka Uchem, Bayem Victor, Eziefula Samuel Uchemgbu, Kenneth Chidi Onyeaghala and Emenike Decland Nwaegbe, who are Nigerian nationals are accused of murdering him after committing robbery in his office in pursuance of a conspiracy between them. The determination of the fact whether deceased Mr. Gurcharan Singh was robbed and murdered as alleged by the prosecution is the subject of the present judgment of this trial in which the aforesaid five Nigerian nationals stood accused of murdering Gurcharan Singh before this Court.
2. The prosecution estimates the time of robbery and murder FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 3/109 at around 12.45 PM. Three informations of the incident were received to the police through PCR calls, which were recorded as DD No. 24 A, 25A and 26A. Out of these, 26A was more specific about causing death of the deceased shopkeeper Gurcharan Singh. The police including the investigating officer (IO) went on the spot and came to know that the victim was taken by PCR van to Deen Dayal Hospital (DDU). No eyewitness was located there. After preserving the crime scene, the investigating officer went to DDU hospital and came to know that the victim Mr. Gurcharan Singh was brought dead to the hospital.
3. Investigating officer found Deepak in the hospital, who was the employee of the deceased for last few years. He recorded Deepak's statement and after that came back on the spot. The crime team was already there which inspected the place and took the photographs of it. IO found that the two CCTV cameras in the shop were broken. In the shop, there was a black colour bag with Rs.Two lakhs in it. Rs.1,34,000/- and two gold coins were there in a shelf in the cabin of the deceased. Investigating officer seized the money and the gold coins. He also seized certain other exhibits which were, a cable wire, two towels, one blood-stained paper cutter, scissors, two broken CCTV cameras, one pair of shoes of the deceased. He prepared rough sketch of paper cutter and scissors and apprehending it a case of murder sent the complaint of Deepak for registration of FIR.
4. The FIR was registered on this complaint Ex.PW2/A. According to the complaint of Deepak, he was the employee of FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 4/109 the deceased for last 5-6 years in shop no. 38, first floor, main market, Tilak Nagar, New Delhi. The name of the shop was Sawhney International Western Union Money Transfer. It deals in foreign exchange, Western Union Money Transfer, air and railway ticketing, couriers, imported garments, artificial jewellery etc. One more shop of Mr. Gurcharan Singh was near Nawada Metro Station which was taken care of by an employee Pooja. The day of incident was Wednesday and was weekly off for Deepak. He came to the shop at around 9:30 AM, only to clean it. He opened the shop and cleaned it. The other employee Sonia Arora reached the shop. At around 10:30 am, the deceased reached the shop. Because it was weekly off, Deepak after cleaning the shop went away, leaving Sonia and the deceased in the shop. At around 1:30 pm, he received a call from Pooja from the second shop at Nawada that Sonia was with her. A person Satish who went to the shop to change printer cartridge saw that Gurcharan Singh was lying on the floor of his cabin. He immediately reached there through his bike and saw that the CCTV cameras outside the cabin of the deceased were broken, the owner Gurcharan Singh was lying on the floor and blood was dripping from his mouth. Dreaded, he went to the adjacent shop and informed its owner Akash, who came at the shop with him. Then this witness called the police and ambulance. Gurcharan Singh was taken to the hospital where he was declared brought dead. Pooja and Sonia, both real sisters, also reached the hospital. They informed that at around 11:45 AM, four Nigerian nationals came on the shop. After FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 5/109 exchanging money, they wanted to buy some articles for which Gurcharan Singh sent Sonia with them to their second shop at Nawada. When all of them reached Nawada Metro Station, a fifth Nigerian national met them. The four Nigerians did not go further to the shop and said that the fifth one will accompany her to the Nawada shop. Sonia took the fifth one to the shop but after reaching the shop, he also left, after which Sonia stayed at this Nawada shop with her sister.
5. The investigating officer then proceeded further to investigate the case. He came to know that two CCTV cameras were installed in the shop. Though the cameras were broken but the video footage can be found in the DVR. Pooja played the video footage and found the four Nigerians nationals in the footage between 12:25 PM to 12:53 PM. A photographer Daman Kumar, who according to IO was proficient in dealing with video recordings was called on the spot. He copied the recordings to VCDs. IO then seized CPU, modem, CCTV and VCD. He also seized the bills of mobile phone with number 9810119928 which was used by the deceased and bill of the laptop of the deceased given by Deepak. IO also seized the day book register containing daily accounts of the office and then recorded the statement of most important witness Sonia in this case.
6. According to her statement, she was the employee of the deceased for last two months and on the fateful day reached the office at around 10 AM. Gurcharan Singh and two other employees Deepak and Kishan were in the office but as it was a FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 6/109 weekly off, Gurcharan Singh relieved both the boys. Only Sonia and Gurcharan Singh remained in the office. At around 12:25 PM, four persons apparently Nigerians came to the office and changed some foreign currencies. Then they conveyed the owner about their desire to purchase some readymade garments. Gurcharan Singh asked them to go to his other shop at Nawada to buy garments. They asked him to send someone, so she was sent with them. When they reached Tilak Nagar Metro Station, the fifth Nigerian national joined them. The first four then said to the Sonia, that they have some work and fifth will accompany her to the Nawada shop. The fifth Nigerian national then went to the Nawada shop with Sonia but after reaching the shop, he did not buy anything for want of money and left. Sonia remained at the shop with her sister Pooja and after sometime Satish who went to the shop for changing the cartridge of the printer informed Sonia telephonically that her owner Gurcharan Singh was lying on the floor. Pooja informed Deepak, who then reached the shop and thereafter Pooja and Sonia also went there. The deceased was taken to hospital by that time. Sonia after seeing the CCTV footages, identified one of them as accused Sunday who came to the office with three other Nigerian nationals on that day to exchange currency. She knew Sunday because he was a regular visitor to the shop. She also handed over to the police, the copy of the passport of Sunday accompanied by Western Union Money Transfer form on which phone number of Sunday was mentioned as 9711759531. The police opened the LOC of Sunday Chinaka.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 7/1097. The next day, autopsy of the deceased was done, after which the doctor handed over certain exhibits related to the deceased like his cloths and blood in gauze to the investigating officer. A local probe was done by the police to nab the culprits but without success. On analysis of call detail records (CDR) of Sunday, it became known that from his mobile number, he often used to call at 9654731690 and the location of both these phones were in Tilak Nagar market near the place of incident on 31.08.2011, around the time of the crime. The mobile phone of the deceased which was missing from the shop has briefly used this sim number 9654731690 after the murder.
8. On verification of the copy of passport of Sunday from Nigerian Embassy, IO found that it was fraudulently obtained and not valid. From FRRO, IO came to know that Sunday Chinaka arrived in India at Mumbai airport on 01.05.2010. The police came to know that the offenders have hastened to various other cities after the incident like Calcutta and Mumbai and to apprehend them, many police teams were formed. It was discovered that the mobile phone of the deceased was being used by some phone number 9312345302. The police tracked this number to Surender Singh, who was summoned to clarify this. He joined the investigation with one Rajesh Kumar. He said that this phone was given to him by Rajesh. Rajesh told the police that he is a cab driver. On 31.08.2011, he took five Nigerian nationals to Chandigarh. After dropping them at the bus stand in sector-17 Chandigarh, he parked his taxi and took a brief nap as he was FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 8/109 tired. When he woke up and was cleaning his cab, he found one Nokia C-3 mobile phone without SIM card in the car behind the driving seat. He could not find any claimant and after returning to Delhi inserted his SIM number 9873528453 but could not understand its functions, so gave this phone to his acquaintance Surender Singh. Surender inserted his number 9312345302 and was then disinterred by the police. IO seized this mobile phone. This was the robbed mobile phone of the deceased Gurcharan Singh.
9. On 04.09.2011, the accused Sunday Chinaka was detained from a hotel in Calcutta by a police team. He was brought to Delhi and interrogated in the police station. He disclosed the names of his confederates to the police. He was arrested and from him, 1200 US dollars and 90 pounds were recovered. Police seized a passport (no. RA-641853) from him. Police also seized his wallet, containing Rs.250/- and the receipt of Green View Hotel dated 03.09.2011, receipt of Mayur Residency Hotel dated 02.09.2011 and Western Union Money receiving slip dated 13.05.2011, issued from the office of Gurcharan Singh. A Nokia mobile with SIM no. 9711759531, which was mentioned on the Western Union Money Transfer Form earlier was also seized. The police were able to arrest him on the basis of the mobile locations of this phone number. By happenstance, Sonia also reached the police station to get the file of Western Union Money Transfer Form and noticed the accused Sunday and identified him as one of the four Nigerian nationals who came to the office on that day.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 9/10910. The second arrest in this case was of the accused Bayem Victor. He was picked up on 04.09.2011 from Chennai Railway Station by a police team when he alighted a train. He was also flown to Delhi. Bayem Victor was interrogated and from him Rs.300 Indian rupees, 1400 US dollars and 110 UK pounds were seized which according to the prosecution were the proceeds of the crime. From him, a Nokia mobile phone with SIM number 9654731690 and one passport no. A-02530218, a flight ticket from Chennai to Delhi, dated 04.09.2011 were recovered. All these things were seized by the IO. The police tried to apprehend the remaining accused with the aid of Bayem Victor but there was no success. The police took Beyam Victor to his rented house at E-31-32, Hastal Road, Uttam Nagar, Delhi where he opened the lock after taking the key from a hole in the wall. He produced a green colour T-shirt disclosing that it is the same T-shirt which he was wearing at the time of the incident. Police seized this T-shirt.
11. While all this investigation was going on, the police came to know that the location of two other accused was at Mumbai with their mobile phone numbers 7503543689 and 7503543574. On 06.09.2011 both of them were nabbed from Hotel Residency in Mumbai and were brought to Delhi. These were accused Eziefula Samuel Uchemgbu and Kenneth Chidi Onyeaghala. In Mumbai they were living under a disguised name of Ikechukwn Charles Nwazi and Obumneke Jeremiah Oformatta. They were arrested. On search of accused Eziefula Samuel Uchemgbu, one wallet containing Rs.24,500/-, 200 dollars and four mobile phones FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 10/109 with SIM numbers 7503443689, 9990612370, 9930757358 and fourth one without SIM and two passports with numbers A- 02573632 and A-00538990, one in the name of Eziefula Samuel Uchemgbu and other in the name Obumneke Jeremiah Oformatta were found with him. These articles were seized. According to police, mobile no. 7503443689 and the phone which did not had the SIM was used by Samuel at the time of incident and he was in touch with Sunday and other accused with this mobile phone. The police also seized some personal belongings of this accused.
12. From Kenneth Chidi Onyeaghala, on his search, Rs.19,300/-,US dollars 150 and two mobile phones, one with SIM no. 8447175107 and the other with MTNL SIM of unknown number and one passport in the name of Ikechukwn Charles Nwazi were seized. Accused Kenneth Chidi was using mobile number 8447175107. The police also seized some personal belongings of this accused. The police kept on searching the fifth accused Emenike Decland Nwaegbe.
13. On 07.09.2011, the investigating agency moved an application for Test Identification Parade (TIP) of the accused Kenneth Chidi and Eziefula Samuel. Both of them refused to participate in TIP. The police took the accused Sunday Chinaka, Eziefula Samuel, Kenneth Chidi to their rented house at E-32, Hastal Vihar, Uttam Nagar. It asked some passerby to join the investigation who refused. They reached the house where the owner met them and identified the accused as his tenants. The FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 11/109 accused Kenneth Chidi and Eziefula Samuel handed over two T- Shirts to the police disclosing that they were wearing them at the time of incident. The police seized the T-shirts. Regarding the fifth accused Emenike, an identification letter issued by Nigerian Embassy on 24.02.2011 was produced by these accused to the police. On 09.09.2011, Sonia Arora identified the accused Sunday Chinaka, Samuel Uchemgbu and Kenneth Chidi in the police station, as those who came to the office on the day of incident. She pointed to Sunday Chinaka and identified him as a regular visitor and whose Western Union Money receiving form with mobile number on it as 9711759531 and copy of passport was provided by her to the police.
14. On 12.09.2011, the TIP of accused Bayem Victor was conducted through witness Sonia Arora. She identified him as one of the four Nigerian nationals who came to the shop on that day and was also visible in the CCTV footage. IO obtained the postmortem report from the hospital. He also collected the CDRs of the mobile phones of the accused. According to him, on perusal of CDRs, it has been established that the location of all the cellular phones of the accused as well as the deceased were at the Tilak Nagar at the time of incident and the robbed phone of the deceased was used by him till 12.49 PM on 31.08.2011 and thereafter it was used with SIM number 9654731690 for some time, recovered from Bayem Victor.
15. IO deposited the exhibits to FSL Rohini. He examined the subscribers of the SIM numbers - 9654731690 , 8447175107, FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 12/109 9873528453(of Rajesh Cab driver) and 9312345302(of Surender Singh). The subscribers of the numbers 9654731690 and 8447175107 Jagjit Singh and Sharda Devi denied that they issued these numbers.
16. In the chargesheet the investigating officer concluded that all these accused hatched a conspiracy to rob and kill Mr. Gurcharan Singh and in fact achieved their aim by committing this crime.
17. The accused Sunday Chinaka used a fake passport and the other accused issued mobile SIM cards issued in the name of Indian citizens on the basis of fake documents for which there is another FIR against them.
18. A supplementary charge-sheet was filed on 20.07.2012 against co-accused Emenike Decland Nwaegbe who was absconding and was declared as proclaimed offender on 07.05.2011. He was initially detained by the police of Malviya Nagar police station as he was not having a valid visa. He was sent to FRRO for deportation where it was found that his LOC was open in the present FIR. His detention was then intimated to the police station Tilak Nagar. Sub-Inspector Amit investigated his role. He interrogated Emenike and arrested him in this case and on satisfaction of his involvement in this case filed a supplementary chargesheet against him.
19. On 17.05.2012, the investigation officer filed the FSL reports of this case through supplementary chargesheet.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 13/10920. After the case was committed to the Sessions Court, the charge was framed against the accused Sunday Chinaka, Bayem Victor, Eziefula Samuel and Kenneth Chidi Onyeaghala on 12.12.2012 under sections 302/392 read with section 34 IPC, 120- B IPC and section 14 of the Foreigners Act. Against all these four accused, charge under section 411 IPC was also framed for recovery of robbed currencies with them as detailed above. On 24.01.2014, the accused Emenike Decland was charged for offence under sections 302/392 read with section 34 IPC, 120-B IPC and 174-A IPC and section 14 of the Foreigners Act.
21. In order to prove its case, the prosecution examined 68 witnesses. After the prosecution evidence was over, all the accused were examined under section 313 Cr.PC. The incriminating evidence appearing against them in the evidence were put to them.
22. I have heard the final arguments advanced by learned Public Prosecutor Sh. Santosh Kumar and learned counsel Sh. Rajiv Mittal, Kanhaiya Singhal and Ms.Shefali Sharma for accused.
23. The learned prosecutor has argued that it is a case of circumstantial evidence and the prosecution is successful in proving its case beyond reasonable doubts. He stated that the four accused are clearly seen in the video footage taken from the camera inside the shop and finally one of them was seen breaking the camera. Immediately after that, the camera went blank and FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 14/109 after some time, Gurcharan Singh was found dead in his shop. The prosecution has broken the back of this case by leading this evidence. He has pointed out towards the conduct of the accused in running in different directions despite living on a rented accommodation in Hastal Vihar. He stated that the accused have been duly identified by its star witness PW-1 Sonia, the driver who took them to Chandigarh Rajesh and other police witnesses. Immediately after the robbery, the robbed currency notes were recovered from them in a matter of few days. The postmortem report has clearly established the murder of the deceased and the suggestion given by one of the counsels of the accused in cross examination of some witnesses PW-1, PW-7 and PW-59 were admissions of their being into the conspiracy of this case. These suggestions also prove the motive of the crime. Such suggestions can only come when the defence knows that it has no other way out to slip through the net of prosecution, when the presence of accused is established, and some excuse was required for their being at the scene of crime. It is stated by him that the chain of circumstance is complete in the present case and all the accused deserves to be convicted for the offences with which they are charged.
24. Ms. Shefali Sharma learned counsel for Emenik has stressed upon the fact that there is no evidence of his involvement in this case. He was not seen in the CCTV footage and was arrested later on when arrested in some other case and was framed here also.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 15/10925. Mr. Kanhaiya Singhal and Rajeev Mittal learned counsels for the remaining accused have almost similar arguments to offer. Apart from filing written arguments Mr. Kanhaiya Singhal argued that the accused have not been identified as per the proper procedure and their dock identification in the court does not inspire confidence. PW-22 Rajesh for example has not identified them properly and the identification done by him is not trustworthy. This witness was not called for the test identification parade of the accused. He identified these accused in his evidence after almost five years of the incident and even said in cross examination that the faces of all of them are similar. He stated in his cross examination that he saw the accused on 04.09.2011 in police station but the accused were arrested on 06.09.2011. The genuineness of the video footage has not been established properly as PW-62 the expert witness has stated that he has not examined whether the editing, alteration or tempering with the DVR was done or not. He has merely copied the video footages to the CD. Regarding recovery, it has been argued that these are not of incriminating nature because the accused are foreign nationals and possession of dollars or pounds by them is natural. There is no evidence of police going to Calcutta, Mumbai or Chennai to apprehend these accused. There are no travel documents, no permissions and even no transit remands of accused to ensure that they were arrested as stated. The time gap between the crime and their arrest is not very long despite that no CCTV cameras etc. have been procured. No evidence of accused going to Chandigarh FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 16/109 through cab is there as it was easily possible to place on record the toll tax receipt of this cab going to Chandigarh. In the initial investigation the police have not prepared the sketches of the suspect. Regarding motive of robbery, they have said that this motive is suspicious because more than Rs.Three lakhs were left by these accused along with gold coins in the shop. It is also stated when the prime witness is PW-1 Sonia then why this FIR was not registered on her complaint. He stated that Deepak was chosen as a complainant by the IO because at that time even Sonia and Pooja were suspects. The deceased has opened Pooja International out of love and affection for Pooja. Both these sisters were involved in this crime and planed it carefully by choosing the day of Wednesday for this purpose which was a weekly off. There is something more than which meets the eye with respect to these sisters who are the masterminds of this murder. He has stated that the suggestions given in the cross examination of a witness are not admissions of guilt and relied upon two judgments which I will deal later. He pointed out to the lapses and omissions in investigations with which I will be dealing ahead.
26. Mr. Rajeev Mittal in addition to these submissions stressed that the robbery was not done by these accused because otherwise why had they left so much cash in shop and will take a mobile of only Rs.500/-. The first call was made by Deepak without reaching the spot then how he knows that there was robbery of cash and injury to manager. The accused only tied Gurcharan Singh and left him after which the murder was committed by both FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 17/109 the sisters. That is why Satish who came first in the shop did not notice the blood on the spot. There are lot of contradictions in the statements of witness how Gurcharan Singh was taken to hospital. None of the documents of the stay of accused have been proved as per law. PW-14 and PW-15 were not present when the accused were allegedly picked up from hotel. No CCTV footages of the hotels were taken by the investigation agency to show that these accused were apprehended from the hotels. The accused Sunday was known to the deceased who owe a lot of money to Sunday and due to this he was lured into the conspiracy as suggested in the cross examination. There were two cameras in the shop. The second one was in the cabin of the deceased which captured the entire incident. This camera would have proved that the murder was committed by the sisters but it was mischievously withheld by the police.
27. The video footages were played multiple times in court at various stages ranging from evidence and final arguments. I have myself seen them with required concentration. In fact, during Mr. Mittal arguments, since he has represented some of these accused from the beginning, he helped in identifying the particular accused from the videos in understanding the videos. These footages are the linchpin of the prosecution's case as I will discuss later that how clinching and cogent these are to nail down this decision.
28. I will explicate on these submissions with the appreciation of the evidence.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 18/10929. Coming to prosecution evidence, the first and most important witness of this case is Sonia Arora. She did not drift from her earlier statements. She was the employee of the deceased and was in the office on that day. As PW-1, she deposed that on 31.08.2011, she was a receptionist in the office of Gurcharan Singh in the office M/s Sawhney International Money Exchange in main market, Tilak Nagar, Delhi. Mr. Gurcharan Singh had one more shop at 1/9 Ground Floor, Nawada Metro Station, where her sister Pooja used to work. Deepak and Kishan (other prosecution witnesses) were also the employees of Mr. Gurcharan Singh. On 31.08.2011, she reached the office at around 10 AM. Gurcharan Singh reached the office at around 10:30 AM. Deepak and Kishan left the office after cleaning the shop as it was a holiday for them. Gurcharan Singh made the entries in the office register (Day-Book Ex.PW2/A-3). He brought cash amount of Rs.5,14,630/-, 3560 dollars and also 570 pounds and Euros and made the entries regarding them in his register and also told her about it. Since the cartridge of the printer in the shop was out of order, on instruction from Gurcharan Singh, she called the witness Satish to change it. At about 12:00 noon, two Nigerian nationals came in the office and exchanged 50 US Dollars for Indian rupees. Then two more Nigerians came to the office and exchanged 100 dollars for Indian rupees. All these four Nigerian nationals then expressed a wish to purchase articles like purse, belt, shoes, clothes etc. on which Gurcharan Singh gave them the visiting card of his Nawada shop and asked them to go there to purchase these things. Those FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 19/109 Nigerian nationals said to Gurcharan Singh that they do not know the address of Nawada Shop. She was asked by Gurcharan Singh to accompany them to that shop. She went with all the four Nigerians. When they reached Tilak Nagar Metro Station, one more co-accused Emenike Decland joined them. Accused Emenike Decland was introduced as the brother of one of them and it was said to her that he has to buy the articles. Emenike then accompanied her to the Nawada shop whereas the rest of the Nigerian nationals went back from there. Emenike also returned after reaching the shop saying that he has seen the shop and had no money on that day and will come again. She met her sister Pooja in the Nawada shop. She then received a mobile call from Satish regarding cartridges. She asked him to go to the Tilak Nagar shop and deliver it there. When Satish went there, he informed her that CCTV cameras, which were installed in their shop were broken and Gurcharan Singh was lying on the floor. Sonia immediately told this to her sister Pooja. Pooja called Deepak to reach at the shop and see what happened. They both reached the office of Gurcharan Singh, where the police were already present. The witness Deepak was there. Gurcharan Singh was taken to DDU hospital. She, her sister Pooja and Deepak went to Hospital, where they came to know that Gurcharan Singh was pronounced dead. Then this witness, investigating officer and Deepak came back on the spot. She told the investigating officer that a Nigerian national used to visit the shop. She handed over to the investigating officer the Western Union Money Receiving FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 20/109 Form and copy of the passport of Sunday Chinaka from the office file. Her sister Pooja shown the CCTV footage of the incident in the computer to the police in which the Nigerian nationals were seen in the shop. The CCTV footage showed the Nigerian nationals in the shop. She identified one of the accused in the CCTV footage as a regular visitor for exchanging money. He is Sunday Chinaka. The laptop, mobile and money were missing from the office. She identified the four Nigerian nationals before the investigating officer. On 04.09.2011, she visited the police station Tilak Nagar and met the investigating officer in his room. She saw accused Sunday Chinaka there. She also identified Sunday Chinaka in the court during her evidence. She told the investigating officer that Sunday came to the office on 31.08.2011 with other Nigerians and it was Sunday Chinaka whose passport and money receiving form was given to the investigating officer earlier by her. On 09.09.2011, she again went to the police station and saw the three accused including Sunday Chinaka except Bayem and confirmed the investigating officer that they were the same persons who came to the office on 31.08.2011. She identified the fourth co-accused Bayem Victor on 12.09.2011 during test identification proceeding in jail. During her evidence in the court, she identified the accused Victor and Samual as those who came first at the office. She identified Sunday and Kenneth Chiddi who came later and Emenke Decland who met them later on way to Nawada shop. She has proved the documents and articles seized in investigation that were, Western Union money FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 21/109 receiving form, receipt and copy of passport of Sunday Chinaka, two received money forms, which were seized by the investigating officer vide seizure memo Ex.PW2/M. She proved these documents Ex.PW2/A1 to A4 and PW2/A2-1 to 4. She also proved mobile number of Sunday Chinaka mentioned on money receiving form. She gave the day book register to the investigating officer, who seized it vide seizure memo Ex.PW2/N and proved it as Ex.PW2/A-3. She proved that the investigating officer seized the shoes of Gurcharan Singh vide seizure memo Ex.PW4/A. She proved the pair of shoes in the court as Ex.PW4/P-1. The CCTV footage contained in the DVD Ex.P-12 was played in the court in front of her when she said that she can identify the accused persons in the CCTV footage. This witness identified the footage of the incident in DVD Ex.P-12. She also identified four accused except Emenike in the CCTV footage as he was not inside according to prosecution.
30. The next important witness is PW-2 Deepak Kumar. The seizures of the case property were done in his presence and he has proved them in his evidence. According to his evidence, he used to work in the shop of the deceased Gurcharan Singh. The shop Sawhney International used to deal in money transfer, foreign exchange, artificial jewellery and imported garments. He was working there since last 6-7 years before the date of incident 31.08.2011. PW-1 Sonia was working as peon in that shop and the sister of Sonia whose name was Pooja was working in the second shop of the deceased at Nawada. On 31.08.2011, he reached the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 22/109 office with sweeper Kishan. While he was cleaning the shop, Sonia also arrived. She was the peon there. Gurcharan Singh reached at 11:00 AM. Since it was his weekly off, he was relieved by the Gurcharan Singh in the morning itself after the cleaning was over. He left with Kishan at around 11:00 / 11:15 AM. At 1:30 PM, he received a call of Pooja on his mobile number 9958902533 from Nawada shop. She said that Satish has informed that Gurcharan Singh was lying on the floor of the shop and the CCTV cameras were broken. He immediately reached the office and saw that Gurcharan Singh was lying prostrate on the floor and was bleeding from his mouth and hand. CCTV cameras of the shop were also broken. He came out of the shop and informed the neighbour Akash Deep about the situation and also called at 100 number and ambulance. PCR van came there and took Mr. Gurcharan Singh to DDU hospital. Sonia and Pooja also reached there. Mr. Gurcharan Singh was declared dead on arrival in the hospital. Sonia told him about the Nigerian nationals. He proved his statement recorded by the police in the police station as PW2/A, which is the complaint in the present case, the foundation of the FIR. He was then involved in the investigation of this case by the investigating officer. Police took him to the shop for investigation. Police found bag of cash which had two lakh rupees of the denomination of Rs.One thousand each. The mobile phones and laptop of deceased were missing. Police found only the bag of laptop and its bill. He provided the bills of the mobile phones of the deceased Gurcharan Singh to the police. In the locker, FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 23/109 police found Indian currency notes of Rs.1,34,000/- of different denominations and two gold coins of 5 gram each. Police sealed the items found at the spot and seized them that were, Rs. Two lakhs, laptop bag and its receipt, Rs 1,34,000/- and the two gold coins. According to his evidence one blood-stained scissor, one blood-stained cutter, two blood-stained towels, two pieces of electric wires of around 2 to 3 feet length, head scarf of Gurcharan Singh, broken cameras, CPU, Monitor, Modem were found at the spot and were seized by the investigation officer. Pooja prepared the CD of the CCTV footage from the system and gave it to the police. Sonia saw the CCTV footage and identified the accused Sunday Chinaka who was the regular visitor in the shop and therefore a copy of his passport and mobile number was with them. These were also given to the police. Police prepared various seizure memos which he proved with the seized articles. He has proved the seizure memos of aforesaid articles. Seizure memo of currency notes of Rs.2 lakhs and Rs. 1,34,000 as ExPW2/B and ExPW2/C, seizure memo of gold coins as ExPW2/D, seizure memo of cable wires Ex.P1and P2 as ExPW2/E, seizure memo of towels and head scarf both Ex.P8, as ExPW2/F, seizure memo of paper cutter P6 as ExPW2/G, seizure memo of scissor Ex.P5 as ExPW2/H, seizure memo of broken CCTV cameras Ex.P3 and Ex.P4 as ExPW2/I. All these memos bear his signatures which he proved in court. He also proved the sketches of scissor and paper cutter as Ex.PW2/J and K, site plan ExPW2/L. IO seized Western Money receiving form, receipts and photocopy of passport of FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 24/109 Sunday Chinaka through seizure memo ExPW2/M. He identified these documents in court as ExPW2/A1 and ExPW2/A2. IO also seized the day book register ExPW2/A3 through memo ExPW2/N, bill of mobile phones ExPW2/A4 and laptop ExPW2/A5 through memos ExPW2/O. PW-2 stated that all the aforesaid seizure memos bear his signatures and he also identified all the aforesaid case properties in the court during his evidence. He proved the clothes of deceased as Ex.P7, CPU of the deceased Ex.P-9, DVR, RAM and wire from FSL as Ex.P-10 and gold coins produced as Ex.P11.
31. PW-5 Satish Kumar, is another important witness, who first saw the deceased in his office when he went to change the cartridge of printer in the shop of the deceased. According to his testimony, Sonia Arora telephoned him to provide the printer at their shop. At around 12:30/1:00 PM, he reached the shop on the first floor of the building. When he went inside, he saw that the Sardarji (Gurcharan Singh) was lying on the floor unconscious and the CCTV cameras were broken. He became perplexed and informed Sonia. He gave cartridges to a neighbouring shop, Gandhi Cyclewala and asked Sonia to take it from him. In the evening he was interrogated by the investigating officer. The defence did not cross examine this witness nor did suggest any wrongdoing on his part nor asked anything about the condition of Gurcharan Singh when he saw him.
32. PW-7 Pooja, is the next important witness. She is the sister of PW-1 Sonia Arora. Both were together at the other shop of the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 25/109 deceased when the information of the incident reached them. She deposed that on 31.08.2011, she was working at Pooja International at G-1 Ground Floor, Nawada Metro Station, Delhi. Pooja International was dealing in money exchange, artificial jewellery, readymade garments and air ticketing. Gurcharan Singh was the owner of this shop. Gurcharan Singh was also having office in Tilak Nagar Market. Before working in the Nawada shop, she was employed at the shop at Tilak Nagar. On 31.08.2011, at 12:30 PM, she received a call from Gurcharan Singh that some Nigerian nationals are coming to her shop with Sonia, and they have to purchase some artificial jewellery and garments. But Sonia reached her shop alone and told her that only one Nigerian accompanied her to the shop who also went back from the door of this shop. She told that the four Nigerians who accompanied her, left her at Tilak Nagar Metro Station and the fifth one joined her who also finally did not enter the shop to purchase anything. Sonia doubted that those Nigerian nationals does not have good intention. Sonia then received a call from Satish. Satish told him that he has brought the cartridge but did not know the location of the shop. Sonia described the location to him. Satish said to Sonia to ask Gurcharan Singh to come down to take the cartridges. Sonia called Gurcharan Singh, but he did not pick the phone. Satish then called Sonia and said that Mr. Sahani is lying on the floor and the cameras are broken. Sonia asked Satish to look what has happened to Gurcharan Singh, but he refused and went back. Sonia then told this to her. She called FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 26/109 Deepak on his phone and said, "Sir office me gire hua hai tum jaa kar dekho mai aur Sonia aa rahey hai". She and Sonia also went to the shop and reached there at 1:45 pm. They saw that Gurcharan Singh was being taken to the hospital by the police. They went to the hospital where they came to know that Gurcharan Singh was no more. They returned to the shop. Police was present there. DV recorder was also there in the office. She played the footages in DV recorder after inserting the password. In the recording, they saw that this offence was committed by the Nigerian nationals. She identified Sunday Chinaka who was their regular customer in the shop and also stammers. The computer operator Daman came to the shop and prepared the CD of the footage. The investigating officer seized the CPU, CD, DVR and Module through seizure memo Ex.PW7/A. She identified and proved DVR, hard disk and charger as Ex.PW7/Article 1. She correctly identified the CPU which was seized by the IO from the spot as Ex.PW7/Article 2. She also identified the CPU of LG as Ex.PW7/Article 2. During the evidence of PW-7 Pooja in the court, the DVD Ex.PW12 was played. She identified the video footage in the DVD as of the same place that is inside the shop which was the place of incident.
33. PW-8 Aakash Deep Arora was the neighbour of the deceased in the market. According to his testimony on 31.08.11 he was present at his shop at 37, New Market, Tilak Nagar. The office of Gurcharan Singh was adjoining his shop at the first floor with the name & style of Sawhny International Western Union FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 27/109 Money. At around 1.30/2:00 PM Deepak, servant of Mr. Gurcharan Singh came to him and told him about Gurcharan Singh's condition on which he immediately went in the office and saw that Mr. Gurcharan Singh was lying on the floor in unconscious condition and blood was dripping from his mouth and cameras were broken. He immediately came down and called the police. PCR van came there and took Mr. Gurcharan Singh to DDU Hospital.
34. PW-20 is Onkar Singh Chadha. He stated that Mr. Gurcharan Singh was his brother-in-law. On 31.08.2011, he went to the market, when he was informed that something has happened with his brother-in-law. Gurcharan Singh was pronounced dead in the hospital.
35. PW-25 is also the neighbour of the deceased. His name is Manoj Kumar. He also made police call on that day. According to his testimony he has a footwear shop in the same market. On 31.08.2011 at around 1:30 PM, he came to know that someone has killed Gurcharan Singh. He went there and informed the police.
36. PW-4 is Smt. Harleen Kaur the wife of deceased who released Rs.3,34,000/-, two leather bags and two gold coins of Punjab and Sindh Bank on superdari. She brought the gold coins in the court Ex.P-11. She spent the money and testified that the leather bags were destroyed by the time of her evidence.
37. PW-10 is Balvinder Singh, the son-in-law of the deceased and PW-11 Gurpreet Singh, the brother-in-law of the deceased, FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 28/109 who on 01.09.2011 identified dead body of Gurcharan Singh vide memo Ex.PW10/A and Ex.PW11/A and received the dead body vide memo Ex.PW10/B after autopsy.
38. PW-12 and PW-13 are related to the house in which the accused were living on rent. PW-13 Geeta is the owner of the house. She purchased it in 2008 and her brother Mukund Lal PW12 was looking after this property. Mukund Lal was the property dealer and leased out this property to the accused persons. Mukund Lal could not re-collect the faces of the accused in the court but said that he identified them during investigation when the police brought them and also gave the documents of the property to the investigation officer who seized them through seizure memo Ex.PW12/A. The documents are Ex.PW12/PA.
39. PW-14 is Monirul Julfikar who was manager in Hotel Green View in Kolkatta. According to his testimony one guest Sunday Chinaka checked in the hotel on 03.09.2011 at around 3:45 PM. The guest was issued the receipt Ex.PW14/A. Sunday Chinaka gave his copy of passport and visa which was proved by this witness as Ex.PW14/B. He also proved the check-in-register Ex.PW14/C. After around one hour of check-in police reached the hotel and took him away.
40. PW-15 is Ajit Kumar Guria. He was the administrative officer at Hotel Mayur Residency since 2006. According to his testimony a guest Sunday Chinaka checked-in hotel on 02.09.2011. He was allotted Room no. 122. He checked out on the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 29/109 next day i.e. 03.09.2011. He proved the documents, Ex.PW15/A, 15/B, 15/C relating to the stay of accused Sunday Chinaka in the hotel.
41. PW-49 is Mohd Bashir, who was the manager in Hotel Residency Park, Mumbai from where accused Kenneth Chidi and Eziefula Samuel were apprehended by the police. According to his testimony, they checked in the hotel on 03.09.2011 and stayed there till 05.09.2011. He proved the copy of the check-in register as ExPW49/A. On 05.09.2011 Delhi Police came, apprehended both of them. They were staying in the hotel under a false name of Oformata Obumneke Jermiah and Nwazi Ikechukwu Charles. He identified both of them in his evidence in the court
42. PW-19 Daman Kumar was the photographer, who was called by the police to prepare the CD of the CCTV footage. He prepared the CD Ex.PW19/A1 from the computer system of the deceased. He identified that CD Ex.PW19/A which he had prepared from the computer in the shop. He also proved the eight photographs which he developed from the video footages as Ex.PW36/D1 to 36/D8.
43. PW-22 is Rajesh, the driver, who dropped all the five accused to Chandigarh in the night of 31.08.11/ 01.09.2011. His friend Ankit called him on phone at around 11:30 PM. Ankit said that AC of his cab is not working properly and asked him to drop five Nigerian passengers to Chandigarh. Ankit brought the accused in his car to his place. The fare was settled at Rs.3000/-
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 30/109out of which Rs.200/- was taken by Ankit as commission. The Nigerian nationals were dropped at the bus stand of Sector-17, Chandigarh. After dropping them, he slept for some time and when he woke-up in the morning, he found a mobile in his car. The Nigerian nationals had left, so he inserted his SIM 9873528453 in this mobile. Later he gave this phone to Surender which was seized by the police through memo Ex.PW22/A. He identified the mobile phone, Ex.P-1 and all the accused in the court.
44. PW-35 is Surender Singh to whom Rajesh Kumar PW-22 gave the mobile phone. According to his testimony, he was having a mobile shop. Rajesh Kumar exchanged a Nokia C-3 phone with him. This witness put his SIM number 9873528453 to check the phone and found it working. He then put another SIM 9312345302 and after around one hour, the police tracked it. He gave this phone to the police which was seized through memo Ex.PW22/A. He identified and proved the mobile phone, Ex.P-1 and SIM as Ex.PW34/A1.
45. Regarding the SIM numbers which according to prosecution were obtained by the accused on the basis of forged documents, the witness PW-23 Jagjeet Singh and PW-34 Sharda were examined.
46. PW-23 is Jagjeet Singh. According to his testimony, he joined the investigating on receiving a notice from the police regarding the SIM no. 9654731690. He stated that he never issued FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 31/109 this SIM nor gave any identity proof to anyone for issuing the same. Bayem Victor was using this number.
47. PW-34 is Sharda Devi. According to her testimony, she never got issued the phone number 8447175107 and somebody had issued her election I-card and issued this SIM. The accused Kenneth Chidi was having this mobile number.
48. PW-32 Dheeraj Bhagat is the seller of the mobile phone Ex. P-1 of the deceased. He proved the sale of this mobile to Mr. Gurcharan Singh through receipt Ex.PW/A-4.
49. PW-26 Dr. Kumar Narender Mohan was the Medical Officer, DDU Hospital, who first examined Mr. Gurcharan Singh and prepared the MLC Ex.PW26/A, according to which he was brought dead in the hospital.
50. PW-6 is the Dr. Komal Singh who conducted the postmortem of the deceased Gurcharan Singh on 01.09.2011 and prepared the post-mortem report No. 1023/2011, which she proved in court as Ex.PW6/A. According to the postmortem report, the deceased Gurcharan Singh had sustained seven external injuries and some internal injuries as mentioned in the report. The cause of death in this case was asphyxia produced by ligature strangulation of neck in combination with crania cerebral injury made by the blunt impacts on head. She opined that both in combination and individually can cause death in ordinary course of nature. It has come in the postmortem report, that the time since death was approximately 24 hours prior to post-mortem FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 32/109 examination. The postmortem was done from 12:45 to 1:45 pm on 01.09.2011. Dr. Komal Singh handed over the exhibits of the deceased to the investigating officer in a sealed parcel which were sealed with the seal of hospital DFMT, DDU hospital along with sample seal.
51. PW-27 and PW-28 are the Metropolitan Magistrates who dealt with the Test Identification Parades (TIP). PW-27 Sh. M.P. Singh proved the records of the TIP proceeding of accused Eziefula Smuel Uchembgu as Ex.PW27/A and Keeneth Chidi Onyeaghala as Ex. PW27/B. According to this record, both refused to be identified in these proceedings. PW-28 Sh. Vijay Shankar conducted the test identification parade of accused Bayem Victor on 12.09.2011 in which the witness Sonia Arora identified the accused. He proved the TIP proceedings Ex.PW28/C.
52. Then comes the Nodal Officers of mobile phone companies.
53. PW-9 is Hemant Saini, Assistant Nodal Officer, Aircel Ltd. Delhi who proved the original record of customer application form of mobile no.7503543689 which was issued in the name of Naushad son of Liyakat r/o B-59, Vipin Garden, Uttam Nagar, New Delhi along with the certified copy of enclosure i.e., Election I-Card and self-declaration form as Ex.PW-9/A, B and C. He proved the call details Ex.PW-9/D of the said mobile w.e.f. 25.08.11 to 06.09.11. He also proved the certificate under section 65-B of Indian Evidence Act, Ex.PW-9/E. He proved the letter of FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 33/109 Shisher Malhotra written to SHO Tilak Nagar Ex.PW9/F. He proved the cell ID chart of the mobile as Ex.PW9/G. This was the number used and recovered from Eziefula Samuel Uchemgbu. He also proved the original record of customer application form of mobile no. 7503543574 which was issued in the name of Sonu Kumar as Ex.PW9/H, identity proof i.e., election I-card as Ex.PW9/I, call details of the said mobile w.e.f. 25.08.2011 to 06.09.2011 as Ex.PW9/J and cell ID chart as Ex.PW9/K and certificate under section 65 B of Indian Evidence Act as Ex.PW- 9/L. This was the number being used by and recovered from Kenneth Chidi Onyeaghala.
54. PW-16 Chander Shekhar, Nodal Officer of Bharti Airtel Ltd., proved the customer application form Ex.PW16/A of mobile no. 9810119928 issued in the name of Gurcharan Singh accompanying his driving license Ex.PW16/B. He also proved the call details of that mobile no. 9810119928 w.e.f. 27.08.2011 to 06.09.2011, Ex.PW16/C, the cell ID chart of that mobile Ex.PW16/D, the certificate under section 65-B of Indian Evidence Act Ex.PW16/E.
55. PW-17 Anuj Bhatia Nodal Officer of Vodafone proved the customer application forms Ex.PW17/A & Ex.PW17/B of mobile no.9873528453 & 8447846716 issued in the name of Rajesh Kumar & Prabhawati respectively. The copy of ID card & driving licence ExPW17/C & ExPW17/D, the call details of the said mobile phones from 25.08.2011 to 06.09.2011 are Ex.PW17/E & Ex.PW17/F. The certificates under section 65-B of Indian FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 34/109 Evidence Act are Ex.PW17/G & Ex.PW17/H which were proved by him. He proved the customer application forms of mobile no.9654731690, 9711759531 and 8447175107 issued in the name of Jagjeet Singh, Mohd Mukhtar and Sharda Devi as Ex.PW17/I, Ex.PW17/J & Ex.PW17/K and their identity proofs as Ex.PW17/L, Ex.PW17/M and Ex.PW17/N. He proved the call details of the said mobile numbers from 25.08.2011 to 06.09.2011 as Ex.PW17/O, Ex.PW17/P and Ex.PW17/Q and the certificates under section 65-B of Indian Evidence Act as Ex.PW17/R, Ex.PW17/S and Ex.PW17/T. He also proved two covering letters to investigating officer as Ex.PW17/U and Ex.PW17/V. The phone number 9654731690 was being used by accused Bayem Victor, the phone number 9711759531 was being used by accused Sunday Chinaka and number 8447175107 was recovered from Kenneth Chidi.
56. PW-24 Pawan Singh is another Nodal Officer of Idea Cellular Company. He proved the customer application form Ex.PW24/A and number porting request Ex.PW24/C of mobile no. 9312345302 issued in the name of Surender accompanied by the copy of election I-Card ExPW24/B. He also proved the call details of the said mobile w.e.f. 31.08.2011 to 04.09.2011 as Ex.PW24/D and the certificate under section 65-B of Indian Evidence Act Ex.PW24/E. This was the number used by Surender Singh in the mobile Ex.P1, of the deceased when he was tracked by the police.
57. PW-18, PW-29 and PW-30 are constables Satyabir, FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 35/109 constable Mukesh Kumar and constable Rajeev Kumar. These witnesses proved the PCR forms which they filled on the date of incident 31.08.2011 on receiving the three PCR calls with respect to the incident. These PCR forms are Ex.PW-18/A, PW-29/A and PW-30/A.
58. Rest of the witnesses are police officers, who were involved in the investigation of this case. To avoid repetition, I am here referring the testimony of the investigating officer as the remaining witnesses of police corroborated the investigation done by him. The investigating officer has been examined as PW-59. His name is R.S. Meena. According to his evidence, on 31.08.2011 he was posted as inspector investigation in police station Tilak Nagar. Three informations were received in police station recorded in DD.Nos 24A, 25A and 26A as Ex.PW48/A, Ex.PW48/B, Ex.PW48/C. He went to the spot of murder that is shop number 38, first floor Main Market, Tilak Nagar, New Delhi. When he reached the spot, he found that the injured was taken to the hospital. Head constable Rakesh and constable Avdesh were on the spot. He called the crime team. He and SHO left to the hospital and left ASI Jangir PW-54 and the ERV team to guard the crime scene. When he reached the hospital, he came to know that the injured was no more. He took the MLC of the deceased Gurcharan Singh. In the hospital he met Deepak. He recorded the statement of Deepak as Ex.PW2/A. He and the other police officers were back on the spot and inspected the crime scene with the crime team. Photographs of the spot were taken. He saw that FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 36/109 both the CCTV cameras were broken and were lying on the floor. He found one bag under the table having Rs.2 lacs (Rs.1000x200). He sealed and seized it vide seizure memo Ex.PW-2/B. In cupboard of the office, he found Rs.1,34,000/-. He seized them vide memo Ex.PW2/C. In the same cupboard, two gold coins of Punjab and Sindh Bank kept in plastic card were also recovered. He seized them vide memo EX.PW2/D. He also seized two cable wires of black colour of the length of about 3.5ft and 2.5ft lying on the floor in the cabin of deceased through memo Ex.PW2/E. He gave the above-said parcels serial numbers 1 to 4 respectively. He also seized two towels and one patka(head scarf) lying on the floor in the cabin of deceased vide through Ex.PW2/F. One towel and patka were there stained with blood. He marked serial number 5 to that parcel. He seized one paper cutter with blood stains from the floor of the cabin of the deceased. He prepared the sketch of the same Ex.PW-2/K and seized it through memo Ex.PW2/G. He kept the same in a cloth parcel and sealed it with the seal of RS and marked it as serial number 6. He also seized a scissor lying on the floor near the cabin of deceased with blood stains. He made the sketch of the scissor Ex.PW2/J and seized it through memo Ex.PW2/H. He kept the same in a cloth parcel and sealed it with the seal of RS and marked that parcel serial number 7. He then lifted the two broken CCTV cameras which were lying near the entry gate of the office and seized them through memo Ex.PW2/I and sealed them in a parcel with the seal of RS and marked them as serial number 8. One chance print was also lifted from one FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 37/109 broken camera by the crime team. He made his endorsement Ex.PW-59/A on the statement Ex.PW2/A of Deepak and handed it to sub inspector Jangir PW-54 for getting the FIR registered. One pair of shoes were lying under the counter of the cabin of deceased which were identified by PW-1 Sonia, who was employee of deceased and stated that these shoes were of deceased. He seized the shoes through memo Ex.PW4/A and kept it in the parcel and gave it number 9. With the help of Pooja, employee of deceased Gurcharan Singh, they played the footage of CCTV camera and saw that four Nigerians entered in the office of the deceased Gurcharn Singh and committed this offence. Sonia identified one of the Nigerian nationals Sunday Chinaka who used to come in the office for the exchanging money. Sonia produced the photocopy of the passport of accused Sunday Chinaka, forms of Western Union receiving money and receipt pertaining to the accused Sunday Chinaka having signatures and mobile number of accused Sunday Chinaka i.e., 9711759531 which he seized through memo Ex.PW-2/A1 to Ex.PW2/A4 and Ex.PW2/A2 to Ex.PW2/A4. He also seized the daybook register containing 237 pages which was produced by Sonia through memo Ex.PW2/N. He seized one Nokia phone bill Ex.PW2/A4 and bill of laptop of Toshiba Ex.PW2/A5 of deceased produced by Deepak through memo Ex.PW2/O. Deepak produced two bills of Airtel Ex.PW2/A6 and Ex.PW2/A7 of deceased. On the same day, he called Daman Kumar, Photographer/Computer Expert at the spot who prepared two CDs of CCTV footage of recording from FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 38/109 12:25 PM to 12:53 PM of the day of incident with the help of computer system installed in the office of Sahni International. He seized one CD vide seizure memo Ex.PW54/A after sealing it and handed over the other CD to Daman Kumar to prepare the snap shots of the recording. Daman Kumar prepared the photographs / snap shots from the CCTV recordings Ex.PW36/D1 to Ex.PW 36/D8 showing the activities of four Nigerian nationals in the office of Sawhney International. Daman Kumar also gave him the certificate under section 65-B Indian Evidence Act Ex.PW-59/B. He identified and proved the certificate stating that it was prepared in his presence. He also seized CCTV system / DVR, computer CPU and module which were installed in the office of Sawhney International through memo Ex.PW7/A and sealed it. At the instance of the Deepak, he inspected the spot and prepared site plan EX.PW2/L. On 01.09.2011, he moved an application against accused Sunday Chinaka for opening his LOC. He informed the FRRO about accused Sunday Chinaka and his involvement in the present case through his application Ex.PW59/C. He also informed the concerned Embassy. He sent PW-33 Inspector Chhatar Singh to Nigerian Embassy and FRRO for the verification of passport of accused Sunday Chinaka. He also made request to the concerned service providers /agencies for call details of mobile phones of accused Sunday Chinaka. He got the autopsy of deceased conducted from DDU hospital. He proved the inquest papers Ex.PW59/D, Ex.PW59/E and Ex.PW59/F. He recorded the statements, Ex.PW10/A and PW11/A of Balvinder Singh and FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 39/109 Gurpreet Singh who were son-in-law and brother-in-law of deceased Gurcharan Singh regarding identification of the dead body. After postmortem, corpse was handed over to them through receipt Ex.PW10/B. The doctor handed over the exhibits i.e., cloths, nail clipping and blood on gauze along with the sample seals in separate parcels having seal of hospital DFMT DDU HOSPITAL, which he seized vide memo Ex.PW21/A. He deposited these exhibits in malkhana(case properties room). He received the call details of mobile phone of accused Sunday Chinaka and examined it. He saw that one mobile phone 9654731690 was in constant touch with his mobile number i.e., 971159531 and their location on the date of incident was at Tilak Nagar. Thereafter, he formed separate police teams and sent them in different places in search of accused persons. PW-33 Inspector Chattar Singh on 02.09.2011, took the verification report of passport of the accused Sunday Chinaka from Nigerian Embassy which is Ex.PW59/G. He sent letter to FRRO to issue high alert against Sunday Chinaka and his associates. He came to know that the location of mobile number i.e. 9711759531 of accused Sunday Chinaka was coming at West Bengal and the location of other mobile phone i.e. 9654731690 which was in constant touch with accused Sunday Chinaka was coming at Mumbai. One police team comprising of Inspector Rajesh PW-51, Inspector M.L Meena PW-36 and other policemen went to Calcutta and the other team comprising of Inspector Raman Lamba PW-48, Inspector Maninder PW-56 and other policemen was dispatched to Mumbai FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 40/109 in search of accused persons. He kept on searching the accused at various places of Delhi with the help of screen shots of CCTV footage showing the faces of accused persons and was in constant touch with these teams. On 04.09.2011, at about 12.30 am (mid night) Inspector Rajesh and Inspector Madan Lal came from Calcutta and produced the accused Sunday Chinaka.
59. The investigating officer interrogated accused Sunday Chinaka and confronted him with the photographs developed from the CCTV footage and the Western Union Money Exchange Receiving Form. Thereafter, he arrested Sunday Chinaka through arrest memo Ex.PW36/A and his personal search was conducted through Ex.PW36/B. From search of accused Sunday Chinaka, one Nokia phone containing sim no. 971159531 and 1200 USD (100x11, 50x2), 90 pounds (20x2, 10x5) were recovered. He seized them through memos Ex.PW36/E and Ex.PW36/D respectively and sealed them. He seized one passport EX.PW36/A1, one purse containing Rs.250/-, receipt of Greenview Hotel Ex.PW-14/A and receipts of hotel Mayur Residency Ex.PW15/A to Ex.PW-15/C and carbon copy of Western Union Money Receiving Form dated 13.05.2011 Ex.PW36/A2 and seized them through memo Ex.PW36/F. He informed the Nigerian Embassy about the arrest of Sunday Chinaka through his letter Ex.PW59/H. On the same day, in the afternoon, the other team which had gone to Mumbai arrived with the accused Bayem Victor. This accused was apprehended by team lead by PW-48 Inspector Raman Lamba and Inspector Maninder FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 41/109 Singh PW-56, from Chennai Railway Station.
60. The investigating officer arrested Bayem Victor after his interrogation through memo Ex.PW 52/B and his personal search was conducted through memo Ex.PW52/C. He obtained six days police custody remand of Bayem Victor on the ground that he was not cooperating in the investigation. From the search of Bayem Victor, one purse containing Rs. 300/- (100x2, 50x1, 10x5) and Nigerian currency 1000 (500x2), USD 1400 (100x13, 50x2) & UK pounds 110(20x4 and 10x3) were found in the pocket of his pant, which he seized through memo Ex.PW-52/D and sealed the same in a cloth parcel with the seal of RS. One mobile phone Nokia model no.1200 containing sim no.9654731690 was recovered from his possession which he seized through memo Ex.PW52/G. He also seized the passport issued in the name of Bayem Victor recovered from the possession of Bayem Victor which he seized through memo Ex.PW52/E. The passport is Ex.PW52/A2. One ticket of Air India Ex.PW52/A1, which was in the name of Bayem Victor was also recovered from his personal search. Accused Bayem Victor led them at his rented room at E-32 Hastsal Vihar, Uttam Nagar, Delhi in pursuance of his disclosure statement and from there, he got recovered his T-shirt which was seized by the investigating officer through seizure memo Ex.PW52/I. He also prepared the site plan of the place of recovery of T-shirt of Bayem Victor EX.PW52/J. He informed the Nigerian Embassy of arrest of Bayem Victor on 0509.2011, through his letter Ex.PW59/L. FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 42/109
61. Inspector Raman Lamba PW48 and Inspector Maninder Singh PW56 were dispatched to Mumbai to trace the other two accused whose locations were coming from there. On 06.09.2011, they brought accused Samuel and Kenneth Chidi from Mumbai. He interrogated them and arrested them through arrest memos Ex.PW48/D and Ex.PW48/E. The personal search was conducted through memo Ex.PW48/F and Ex.PW48/G. Accused Samuel was found in possession of robbed Indian currency Rs.24500/- as well as 200 US Dollars in his purse. He seized the same through memo Ex.PW48/H. Accused Samuel was also found in possession of four mobile phones all of make Nokia. One of the mobile phones of Nokia Model 2600 was containing sim number 7503543689 which was in constant touch with his co-accused Sunday Chinaka on his mobile number 9711759531 during the commission of offence on 31.08.2011. Accused Samuel was located in Mumbai through his sim number 9930757358 which he used in Nokia mobile phone Model 2600. He seized all the said mobile phones through memos Ex.PW48/I. He gave them serial numbers 1 to 4. Accused Samuel was in possession of two passports Ex.PW48/A1 and Ex.PW48/A2 which he seized through memo Ex.PW48/J. Accused Samuel was in possession of his personal belongings in his suite-case which he seized through Ex.PW48/J. Accused Kenneth Chidi was in possession of robbed Indian currency Rs.19300/- and 150 US Dollars which he seized through memo Ex.PW48/L. Accused Kenneth Chidi was in possession two mobile phones of Forme and Itel which he seized through memo FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 43/109 Ex PW48/L. He also mentioned their sim numbers in seizure memo Ex. PW48/N. Accused Kenneth Chidi was using sim number 8447175107 in mobile phone Itel during the commission of offence. During the analysis of the CDRs of mobile phones of accused persons, their location was found near the place of occurrence on the date of incident. The passport of the accused Kenneth Chidi is Ex.PW48/A3. The personal belongings of the accused Kenneth Chidi which were in suite-case were seized by him through memo Ex.PW48/P. He intimated to the DCP, FRRO, R.K.Puram, Delhi regarding the arrest of all the four accused and requested him to furnish their details of travel into India by his letter Ex.PW59/J. He also requested the DCP, FRRO, R.K.Puram, Delhi to close the look-out circulars of all the accused vide his letter dated 06.09.2011 Ex.PW59/K. On 07.09.2011, he produced the accused persons before the court and moved applications for TIP of both the accused persons, but they refused to participate in TIP. He obtained their two days police custody remand. All the three accused led them to their residence at E-32 Hastal Vihar, Uttam Nagar, Delhi where one Mukund Lal, brother of landlady Geeta met them. Mukund produced the photocopy of ownership documents of the said house i.e GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter which were in favour of Smt, Geeta which he seized vide memo Ex.PW12/A. The documents are Mark PW12/PA. Investigating officer tried to find out the remaining robbed money but in vain. He seized the T-Shirts of accused Samuel and Kenneth Chidi which they were wearing at FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 44/109 the time of incident through memos Ex.PW52/L and Ex.PW52/M. He also prepared the site plan of the place of occurrence of said T- shirts Ex.PW52/N. Both the accused had also produced one laminated letter of identification Ex.PW52/A3 of fifth accused Emenike Decland which was issued by Nigeran Embassy on 24.02.2011. It was seized by him through memo Ex.PW52/O. On 12.09.2011, the accused Bayem Victor was correctly identified by PW-1 Sonia in TIP proceedings. On 09.09.2011, PW-1 Sonia went to police station to know about the progress of the case where she identified the accused Sunday Chinaka Uchem, Eziefula Samuel Uchemgbu, Kenneth Chidi Onyeaghala. During the investigation, he collected the PCR forms Ex.PW59/K and Ex.PW59/L. He also sent their developed chance print to Fingerprints Bureau to compare search slip from the chance prints found at the spot vide his letter, Ex.PW59/N and collected the report from Fingerprint Bureau which is Ex.PW59/O but same were found unfit for comparison/search. He collected the CDRs, CAF, location chart and certificate under Section 65-B of Indian Evidence Act of mobile phones numbers 9654731690, 9711759531, 8447175107, 8447846716 and 7503543689 which were used by the accused persons and mobile of Rajesh bearing no 9873528453. He also collected the CDR, CAF, location chart and certificate under Section 65B of Indian Evidence Act of mobile numbers 9312345302 and 9810119928. He came to know that accused Victor got issued the sim no. 9654731690 on the ID of one Jagdish Singh, R/o F-98, Virender Nagar, Delhi, Sunday Chinaka FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 45/109 got issued the sim no 9711759531 on the fake ID of one Mohd. Mukhtyar, S/o Kaum, R/o 106, Nawada, Uttam Nagar, Delhi and accused Kenneth Chidi got issued the sim number 8447175107 on the ID of Sharda Devi, R/o B-261, New Ranjeet Nagar, Delhi. He examined Jagdish Singh and Sharda Davi. They stated that they did not get issued the said sims on their IDs and someone else got issued the same. Despite their best efforts neither Mohd. Mukhtar nor his address on the ID of which Sunday Chinaka got issued the sim could be traced out in Delhi and Bihar. During the investigation, he made inquiry from the office of FRRO regarding the arrival and departure of all the accused in India. He had also written letters in this regard to the High Commission, Nigerian Embassy, New Delhi and to the FRRO, which are Ex.PW59/P and Ex.PW59/Q. In response thereto, he received letter through DCP from FRRO mentioning that the foreigners namely Sunday Chinaka, Bayem Victor, Kenneth Chidi and Samuel were neither registered foreigners nor extended their Visas from FRRO office. The said letter is Ex.PW-59/R. He also received the record pertaining to the arrival of all the five accused in India from the office of FRRO running into five pages which are Ex.PW-59/S. He came to know about the involvement of fifth accused namely Emenike in the case. He had written letters to the service provider companies i.e., Aircel and Vodafone to provide the address of cell phone tower for the cell IDs of accused vide his letter, Ex.PW59/S1 and PW59/S2. The letters received from service providers in this regard are Ex.PW59/T1 and Ex.PW59/T2. He on FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 46/109 19.10.2011, deputed SI Umed Singh PW-47 to get verified the entries regarding stay of Sunday Chinaka in hotel at Calcutta who brought and handed over the relevant documents to him. Thereafter, Umed Singh went to Calcutta and seized some documents through memo Ex.PW46/B and handed over the same to him along with the seizure memo. On 26.10.2011, he sent SI Bhanwar Singh PW-58 to Mumbai to verify the stay of accused Samuel and Kenneth Chiddi at Mumbai who went to Mumbai and seized documents regarding the stay of those accused at Mumbai through memo Ex.PW55/A and handed over the relevant documents to him along with seizure memo. He obtained the non bailable warrants and process under section 82 Cr.P.C of accused Emenike from the court on his application Ex.PW59/T3 and Ex.PW59/T4. Thereafter, Emenike was declared proclaimed offender vide his application Ex.PW-59/T5. The order of the Ld. M.M Sh. Rajesh Malik regarding declaration of Emenike as proclaimed offender is Ex.PW59/T6. A supplementary charge sheet was filed against him after adding section 174A IPC apart from the other sections in the charge sheet. He got deposited the exhibits in the office of FSL Rohini through constable Chandershekhar PW-43 and constable Lalit PW-41. He told about registration of one more FIR No. 403/2011 under section 419/468/471 against the accused except Emenike for getting SIM cards on fake documents. He proved the case properties of this case which are - two cable wires of black colour having length of about 3.5 ft and 2.5 ft, Ex.P1 and Ex.P2, two CCTV cameras FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 47/109 which were seized by him from the spot, Ex. P3 and Ex.P4, one scissor Ex.P5, one paper cutting Ex.P6, two towels (one of them is having blood stains) Ex.P8, one CPU make LG Ex.P9, one DVR and RAM alongwith wire Ex.P10 (colly), one pair of shoes Ex.PW4/P1 (colly), Sony CD-RW 700 MB (Supermass) Ex.PW19/P1, one mobile phone make Nokia 1110 of black and white colour containing one sim of Vodafone and battery recovered from the possession of accused Sunday Chinaka Ex. PW-36/A3, pounds and dollars recovered from the possession of Sunday Chinaka Ex.PW36/A4 (collectively).
62. He also proved one purse with Rs.300/- ( 100x2, 50x1 & 10x5) of Indian Currency, 1400 USD (100x13 & 50x2), 110 UK (20x4 & 10x3) pounds and two notes of Nigerian Currency of 500/- each which were recovered from the possession of accused Bayem Victor Ex.PW52/A6 (Colly), one mobile phone Nokia 1200 containing sim of Vodafone recovered from the possession of accused Bayem Victor Ex.PW52/A7, one t-shirt of green colour recovered from the possession of accused Bayem Victor Ex.PW52/A8,, one t-shirt recovered from the possession of accused Samuel Ex.PW52/A9, one t-shirt recovered from the possession of accused Kenneth Chidi Ex.PW52/A10. He also proved DVR, hard disk and charger seized by him from the spot Ex.PW-7/ Article-1 collectively, one mobile phone Nokia C-3 Ex. P1/Ex.PW 59/P1 with sim of idea Ex.PW34/A1 seized by him. He further proved four mobile phones of Nokia which were recovered from the possession of accused Eziefula Samuel and FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 48/109 seized by him through Ex.PW48/P1, Ex.PW48/P2, Ex.PW48/P3 and Ex.PW 48/P4. He proved one purse with Rs. 17000/- (of denomination of 1000/-each) and Rs. 7500/- (of the denomination of 500 each) and Rs. 7500/-( of the denomination of 500 each) and 200 USD (of the denomination of 100 each) recovered from the possession of accused Eziefula Samuel and seized by him. Purse is Ex.PW48/P5 and currency notes are Ex. PW 48/6 (Colly). He proved one purse with Rs. 9000/-( of the denomination of 1000/- each) and Rs. 10000/- (of denomination of 500 each) and Rs. 300/- (of denomination of 100 each) 150 USD (of the denomination of 100 and 50) recovered from the possession of accused Kenneth Chidi and seized by him. Purse is Ex.PW48/P7 and currency notes are Ex.PW48/P8 (Colly), two mobile phones recovered from the possession of accused Kenneth Chidi and seized by him which are Ex.PW 48/P9 and PW.Ex.PW48/10, passport of Sunday Chinaka EX.PW-36/A1, passport of accused Bayem Victor Ex.PW52/A2, two passports of accused Samuel Ex. PW48/A1 and A2 and passport of Kenneth Chidi which is Ex.PW48/A3 which were seized by him. During his evidence, DVD Ex.P-12, was played in the computer system of court and seen by this witness. After seeing the same, the witness has identified the four accused Sunday Chinaka, Bayem Victor, Eziefula Samuel Ucheghbu, Keeneth Chidi Onyeaghala and office employee witness Sonia in the footage.
63. Inspector Madan Lal and Inspector Rajesh who went in pursuit of the accused have been examined as PW-36 and PW-51 FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 49/109 and proved that how based on the mobile phone location of accused Sunday Chinaka, they apprehended him from a Hotel in Calcutta and brought him to Delhi.
64. Inspector Raman Lamba and Inspector Maninder Singh have been examined as PW-48 and PW-56 and proved in detail that how based on the mobile phone location of accused Bayem Victor, they apprehended him from Chennai Railway Station and brought him to Delhi. They further proved how they apprehended the accused Eziefula Samuel Uchemgbu and Kenneth Chidi Onyeaghala from a hotel in Mumbai who were living there in the disguised names.
65. PW-60 is Ms. Imrana, Senior Scientific Officer Biology FSL, Rohini. On 5.10.2011, she received six sealed parcels in connection with this case. She opened the parcels, examined them, and again put them in their respective parcels. She prepared a report of her examination. The report regarding the examination of those parcels has been proved on record as ExPW60/A. She also proved her serological report ExPW60/B. She has examined the towels, paper cutter, scissor, the clothes of deceased given by the autopsy doctor and the blood gauze. According to her report blood was detected on all exhibits excepts the small towel and she could find out the blood group on some of exhibits of A Group.
66. PW-62 Sh. V. Laxmi Narasimhan was the Assistant Director (Physics), FSL, Rohini, Delhi. According to his testimony, on 14.11.2011, two sealed parcels with the seal of RS and two FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 50/109 unsealed parcels were received in the office of FSL and the same were marked to him for examination. He opened the parcel no.1 in which one CCTV DVR bearing Sl.No. HK-7808B was there and it was marked as Ex.1. He opened second parcel no.2, in which one CD RW was there, and it was marked as Ex.2. The said CD had two video files namely after 12.avi and after 1230.avi. Parcel no.3 had one blank Hard Disc of capacity 500 GB and parcel no.4 had one blank CD. The DVR Ex.1 and CD Ex.2 were examined and the contents of the relevant video files namely 'CH2- 20110831-120042' and 'CH2-20110831-123044' in Ex.1 were found same as the contents of the video files namely after 12.avi and after 12.30.avi. The video files extracted from DVR Ex.1 were copied in a blank CD. The contents of Ex.4 found in parcel no.4 could not be detectable. He proved his detailed FSL report as EX.PW.62/A and stated that these exhibits were sealed with the seal of FSL-V.L.N-DELHI and handed over to the forwarding authority.
67. PW65 Sub Inspector Amit was the investigating officer regarding Nwaegbe Emenike Decland. He proved the arrest of this accused. According to his testimony, on 22.08.2013, he received a letter, Ex.PW61/A, regarding the detention of the accused Emenike Decland in FRRO. After that he wrote a letter Ex.PW65/A to DCP FRRO, for permission to interrogate and arrest this accused, which he got vide order Ex.PW61/B. He seized Rs. 40,000 recovered from the accused through seizure memo Ex.PW65/C and the passport Ex.PW61/C through seizure FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 51/109 memo Ex.PW65/D. He proved the arrest of accused Emenike Decland through arrest memo Ex.PW63/A and personal search memo Ex.PW63/B. He seized the luggage containing the belongings of the accused Emenike Decland through seizure memo Ex.PW63/C. He moved an application for test identification parade of this accused. He sent intimation of arrest of the accused to DCP, FRRO and to the Ambassador, Embassy of Nigeria, New Delhi through letters Ex.PW65/E Ex.PW65/F Ex.PW65/G. He identified the accused Nwaegbe Emenike Decland in court. His statement is corroborated with constable Anoop Singh PW-63 and PW-61 Mahesh Chand who were associated with him in the investigation of this case. After completing investigation, the supplementary chargesheet was filed against him in the court.
68. PW-37 ASI Ajeet Singh proved the crime scene report Ex.PW37/A. PW-39 Head Constable Anil Kumar was the photographer and member of the Mobile Crime Team. On 31.08.2011 he also examined the spot that is shop no. 38, first floor, Main Market, Tilak Nagar. He took 12 photographs Ex.PW39/A1 to Ex.PW39/A12 of the spot and articles lying there from different angles. The negatives of the photographs are Ex.PW39/B1 to Ex.PW39/B12. PW-40 Constable Suresh Chand was the fingerprint proficient in that mobile crime team. On 31.08.2011 he lifted six chance prints from the spot from different places.
69. This is primarily the main evidence in this case. The FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 52/109 corroborating evidence of police officers is not reproduced as it is lengthy and repetitive.
70. After the prosecution evidence is over, all the five accused were examined under section 313 of Code of Criminal Procedure. The incriminating circumstances appearing in evidence against them were put to them. The answers given by the accused were generally of denial. They did not lead any defence evidence.
71. Before explicating on the appreciation of evidence, I am conscious of the fact that this case is based on circumstantial evidence. There is no direct evidence against the accused persons meaning thereby there is no eyewitness who can say that he has seen the murder while it being committed. The appreciation of evidence in cases of circumstantial evidence is not as easy as in cases of the direct evidence. Hon'ble Supreme Court in the celebrated judgment of Sharad Birdhichand Sarda vs State of Maharastra (1984) 4SCC 116 has elaborately considered the standard necessary for recording a conviction on the basis of circumstantial evidence which are-(a) the circumstance from which the conclusion of guilt is to be drawn should be fully established, (b) the facts so established should be consistent only with the hypothesis of guilt of the accused that is to say, they should not be explainable on any hypothesis except that the accused is guilty, (c) the circumstances should be of a conclusive nature and tendency, (d) they should exclude every possible hypothesis except one to be proved and (e) there must be a chain of evidence so complete as not to leave any reasonable ground for FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 53/109 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.
72. The Hon'ble Supreme Court in the case of Kali Ram v. State of H.P. (1973) 2 SCC 808, has further explained the most intrinsic and sacred principle of criminal jurisprudence regarding circumstantial evidence by observing that the golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 54/109 conjectures, or fanciful considerations. The Hon'ble Court quoted from State of Punjab v. Jagir Singh that a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
73. The Hon'ble Court also cautioned that wrongful acquittals are undesirable and shake the confidence of people in the judicial system much worse, however, is the wrongful conviction of an innocent person.
74. In the case of Amarsingh Munnasingh Suryawanshi v. State of Maharashtraa (2007) 15 SCC 455, Hon'ble Court, while dealing with a situation where the accused-husband was absconding and the husband and wife were living together and at the time of death they were alone in the room, observed that it was for the accused-husband to explain as to how the deceased met her death.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 55/10975. While dealing with a case based upon circumstantial evidence, Hon'ble Supreme Court, in the case of Birendar Poddar v. State of Bihar (2011) 6 SCC 350, has held that it is true that in cases where death takes place within the matrimonial home, it is very difficult to find direct evidence. But for appreciating circumstantial evidence, the court has to be cautious and find out whether the chain of circumstances led by the prosecution is complete and the chain must be so complete and conclusive as to unmistakably point to the guilt of the accused. It is well settled that if any hypothesis or possibility arises from the evidence which is incompatible with the guilt of the accused, in such case, the conviction of the accused which is based solely on circumstantial evidence is difficult to be sustained.
76. In Hanumant vs The State of Madhya Pradesh AIR 1952 SC 343, Hon'ble Supreme Court cautioned that while dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge ((1838) 2 Lew. 227), where he said that the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters to overreach and mislead itself, to supply some little link that is wanting, to take for granted some FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 56/109 fact consistent with its previous theories and necessary to render them complete.
77. Now with these parameters of law regarding circumstantial evidences and being conscious of the fact that the burden of proof in a criminal trial is always on the prosecution and it never shifts and to secure a conviction, the prosecution has to prove its case beyond reasonable doubt on the basis of acceptable evidence, I will proceed for the appreciation of evidence. It is a settled principle of criminal law jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a straight-jacket formula or principle which would apply to all cases without variance and every case has to be appreciated on its own facts and in light of the evidence led by the parties. It is for the Court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.
78. Coming now to this case. The prosecution in this case has relied upon five main circumstances to point towards the guilt of the accused. These circumstances are - (1) last seen, (2) motive, (3) conduct of the accused before and after the crime, (4) autopsy report regarding cause of death and (5) recoveries.
79. Last seen theory - The most prominent and sterling evidence on which the prosecution relies in this case according to FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 57/109 it is the last seen theory. The prosecution heavily banks upon it on the ground that the deceased Gurcharan Singh was in his office just before the murder, he was found murdered in his office and all accused except Emenike Decland were in the office just before his death. They were seen entering in the cabin of the deceased, remained there, and the accused Kenneth was seen breaking the camera. The witness to the last seen is not any human being but CCTV cameras. According to the defence this is not a case of last seen because in the video footages the deceased is not seen with the accused.
80. Last seen theory applies where the time interval between the point of, when the accused and the deceased were last seen together and when the victim was found dead is so small that the possibility of any person other than the accused being the perpetrator of crime become impossible. Hon'ble Supreme Court in Satpal vs State of Haryana (2018)6 SCC 610, elaborated upon the evidence of last seen and cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence. The Hon'ble Court observed that it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 58/109 circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference of guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.
81. In Surajdeo Mahto & Another vs State of Bihar 2021 SCC Online 542, Hon'ble Supreme Court observed that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Court has to not only consider the factum of last seen, but also has to keep in mind the circumstances that preceded and followed from the point of deceased being so last seen in the presence of the accused.
82. In the case of Nizam vs State of Rajasthan (2016) 1SCC 550, it was held that undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled that it is not FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 59/109 prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
83. On the strength of this judgment, it can be said that what last seen means is not that the deceased and the accused should be seen together hand in hand but in the vicinity of each other. In the present case the accused are seen in the video footage in the office of the deceased. They were seen outside the cabin of the deceased just before the incident and then entering his cabin. The Hon'ble Supreme Court in Babu vs Babu (2003) 7SCC 37, which was a case in which the husband was the accused of murdering his wife and they were both in a room which was bolted from inside, observed that last seen together in legal parlance ordinarily refers to the last seen together in the street, at public place, or at any place frequented by the public. But here the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room. Therefore, on the fateful day the accused and the deceased were closeted in a bedroom at about 8:30 pm is undisputed and it is for the accused alone to explain as to what happened and how his wife died and that too on account of strangulation.
84. In the present case also the deceased and the accused were closeted in the cabin within the shop just before the murder.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 60/10985. It will however not mean that the failure of the accused to explain the circumstances can be used to convict him if the primary burden is not discharged by the prosecution. As stated earlier, the onus will shift on the accused only when the prosecution has discharged its burden.
86. The Hon'ble Supreme Court in the case of Shyamlal Ghosh vs State of West Bengal (2012) 7 SCC 646, has stated that once the last seen theory comes into play, onus shifts upon the accused to explain as to what has happened to deceased after the accused and deceased were last seen alive. The Hon'ble Court has further explained that there must be reasonable proximity of time between the period the accused and deceased were last seen together and the time when the fact of deceased having expired comes to light. The Court has further explained that what would be reasonable has to be determined in the facts and circumstances of each case.
87. Videos and photos are also witnesses. They are silent witnesses. Once the court believes that the video is free from any legal blemish, such footage is admissible in evidence. A video comes in the category of documents which though silent but speaks for itself. The impact of such evidence is that it leaves nothing for imagination. The human memory may fail or the witnesses may lie but a video will always remain the same. If unblemished, this is no doubt superior evidence where the court has the opportunity to see the crime itself without depending on the narration of the witnesses. In the case of Tomaso Bruno & FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 61/109 Anr vs State Of U.P (2015) 7SCC 178, Hon'ble Supreme Court held that CCTV footages are the best piece of evidence. With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant.
88. Now in this case, the accused were seen entering the cabin of Gurcharan Singh not by any human as said above but the video camera installed in the shop of the deceased. These cameras are silent witnesses. A human witness may flinch or lie but not a camera. The camera being kind of electronic evidence has to be tested on the anvil of its genuineness. This has been done in this case as the DVR which had recorded the footage was sent to forensic science laboratory for examination where the CD prepared by the photographer was matched and a new copy was prepared from DVR.
89. Now what does these video footages show. On record there are six video files of 30 minutes each captured from the camera CH2, which was outside the entry of the cabin of the deceased and covers the entrance and the small sit out area including the receptionist seat in the shop. The first video is from 11.00 to 11:30 AM. This was probably just after the opening of the shop. The witness Sonia is seen in the office. Gurcharan Singh came to the shop at 11:04 AM. Deepak was also there. At around 11:14 AM, FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 62/109 Kishan came in red t-shirt in the office. Both the office boys are seen doing some work in the office. Both of them left at 11:24 AM leaving Sonia and Gurcharan Singh in the office. The second video is from 11:30 AM to 12:00 PM. At 11:50 AM, the first accused came wearing green t-shirt with white strips, blue jeans and cap on his head. He is Kenneth Chidi. He gave a currency note from his wallet to Sonia. She went inside the cabin of Gurcharan Singh to take the change and handed over the changed currency to this accused at 11:51 AM. The accused counted the money and left the office. The defence counsel Mr. Mittal has argued that this video has not shown that she had made any entry in her register as deposed by her. At 12:00 PM, Gurcharan Singh came out of his cabin and a Sikh gentleman came. Gurcharan Singh took him to his cabin. That person left at 12:02 PM. The third video is from 12:00 PM to 12:30 PM. The defence counsel Mr. Mittal drawn the attention in this video at two places where he said that Gurcharan Singh lewdly touched Sonia. According to him, this establish the defence theory that Gurcharan Singh was harassing these sisters. Gurcharan Singh is seen patting Sonia at 12:03:20 PM when he left the office for some time and again at 12:08:18 when he came back in the office. I view these touches as more crude than lewd. At 12:25:30 PM two accused came in the shop. They were Samuel and Victor. Samuel was wearing a yellow t-shirt and had a rucksack bag on his shoulders. Victor was wearing green t-shirt on which a white rabbit logo was made. They went in the cabin of Gurcharan Singh. Victor came out of FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 63/109 the cabin at 12:28:52 pm and seen talking with someone over phone. At 12:29:18 PM the accused Sunday and Kenneth came in the shop; Sunday was wearing white t-shirt and Kenneth was again in the same clothes i.e., green t-shirt and white strips, but without cap this time. The accused Victor is seen talking on phone outside the glass door of the shop. Sunday went in the cabin whereas Kenneth waited outside while sitting on the stool. At 12:29:53 PM, Victor came inside the shop and went inside the cabin of Gurcharan Singh. At 12:30:14 PM, Sunday came outside the cabin and sit with Kenneth on the stool. The fourth video is from 12:30 PM till 12.53.28 PM when the accused Kenneth broke the camera after which the video went black. The video starts with the accused Kenneth and Sunday sitting on the stool. At 12:30 PM the accused Samul and Victor came from the cabin of the deceased and went away from the shop. At 12:31 PM, Sunday went inside the cabin. At 12:33 PM, Sunday came out with some money, gave it to Kenneth who counted the same and put it in his wallet. At 12:34:12 PM, Sunday again went in the cabin and 12:34:22 PM, the accused Samuel and Victor again went inside the office. He had a bag in his hand. Samuel and Victor went in the cabin of Gurcharan Singh. Kenneth kept sitting outside on the stool. One of the accused Victor probably did not enter the cabin and was outside talking with Kenneth. At 12:36:48 Sunday came out of the cabin of the deceased followed by Samuel with a bag in his hand. All the four are now outside the cabin in the shop. At 12:37:17, Sonia came out of the cabin, took her purse from the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 64/109 reception and left the office with all the four accused. At 12:43:23 PM, the accused Sunday came followed by Kenneth in the office. Sunday immediately went in the cabin. Kenneth remained outside and sat on the stool. At 12:44 the accused Victor came with a bag on his shoulder followed by Samuel. Victor and Samuel went into the cabin directly. Kenneth remained outside as if guarding the scene. One of the accused for some time also seen with him partly, with whom he was talking while standing outside the cabin. At 12:46:57 PM Kenneth also went inside, at 12:47:53 PM Kenneth came out and went inside the cabin immediately. At 12:48:19 Kenneth again came out with a bag in his hand and then again went inside. At 12:48:31 PM Kenneth brought a chair from the cabin and put it at the reception. At 12:48:50 Kenneth came out and looked outside towards stairs from the glass window to see that somebody is not coming up. He went inside. At 12:49 PM, Kenneth again came out of the cabin with a bag in his hand, opened the drawer of the receptionist, freakishly searching for something, then went towards the door but again returned. He then opened the shelves of the table of the receptionist as if searching something and at that time he noticed the camera over the receptionist area. He again looked outside the stairs fearfully, then came back in the cabin, came out, came back and has done this many times. At 12:51:03 PM, Kenneth came outside the cabin, saw his hand as if sticked with something, again as if trying to find something, looking at his hands, towards the door and stairs, wiped his hand with the cushions on the stool, looked at the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 65/109 camera, searched for something, stole something and put it in his bag. At 12:53:10 PM, Kenneth again looked into the camera, raised himself on something and broke it. At 12:53:33 pm the camera went black. The next two video files are from 1:00 to 1:30 PM and 1:30 PM to 2:00 PM. But since the camera was broken, they are blacked out. This video shows that the crime started at around 12:40 PM and continued to 12:53 PM and may be even for some more time. The demeanour of Kenneth clearly shows that all the four were engaged in some gruesome act inside the cabin. The act of Kenneth fearfully looking through the glass door and window to ensure that no one is coming to interrupt them or subvert their plan is very overwhelming evidence of not only his mental status at that time but also that something horrendous was going on inside the cabin.
90. After considering the entire circumstances in the light of law related to last seen evidence, that it is a weak-evidence and needs corroboration, the time gap has to be so small that possibility of any person other than the accused being the perpetrator of crime become impossible, it is clear that the deceased Gurcharan Singh before his death was in his cabin inside the shop and therefore in the company of all accused except Emenike. All the accused except Emenike were inside the shop, a closeted area. Though the CCTV could not record the actual crime because it was installed outside the cabin of the deceased but it captured the entry of the accused in the cabin of the deceased immediately after which Gurcharan Singh was found dead. The FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 66/109 accused Kenneth is freakishly seen skittering in and out of the cabin many times, searching for things, putting things in his bag, guarding the scene, looking out intermittently to see nobody is coming to throw the spanner in the work or may be to stop somebody to intervene and then breaking the camera. At one point he is seen searching the shop and the drawer of the receptionist as if trying to find something, may be money or some instrument to kill, we don't know. At one point he keeps something white coloured in his bag as if stealing it. At one point he comes out of the cabin and wipes his hands from the cushion of the stool. Finally, he broke the camera with his hands and by this time none of the accused who were inside the cabin came out. The study of the last video from 12.30 PM clearly indicates that something grisly was happening inside. The demeanour of the accused inside the shop and particularly Kenneth during the entire commission of the offence is a serious indicator of the fact that they committed something grave and not just tying the deceased, The time gap between their presence in the shop and the discovery of Gurcharan Singh's body lying insentient on floor by the first witness Satish is so low that is around few minutes (may be some 10-15 minutes), that the intervention of a third person apart from them to come and commit the crime seems to be highly improbable. The duration of their presence in CCTV footage is from 12:25 to 12:53 PM(after which the camera goes off) and the deceased was found lying on floor of his shop at around 1:30 pm. The damage caused to the cameras immediately after the presence of these accused FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 67/109 creates a reasonable presumption that these cameras were damaged by them to wipe out the evidence of their presence in the shop. The investigation officer after seeing the video footage in his evidence stated that the accused Kenneth Chidi was seen breaking the camera in the footage himself. What more is required to come to the conclusion that the conduct of the accused in breaking the camera additionally points towards their guilty mind. As from the following discussion it will be clear that the conduct of the accused before and after committing this crime lends a serious credence to their involvement in it. If CCTV camera footage has to be believed and there is no reason not to believe it, it is clear that the last seen allegation of the prosecution is quite cogent and trustworthy and there is no doubt that the CCTV footages categorically establish the factum of the accused in the shop of the deceased just before his death. In fact, these videos are so convincing that no other evidence is required to come to the conclusion of guilt of accused. In Arvind @Chotu vs State, 2009 SCC Online Del 2332, Hon'ble Delhi High Court while dealing with batch of appeals in cases related to last seen has formulated some relevant principles, two among which are that it is not necessary that in each and every case corroboration by further evidence is required and the single circumstance of last seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death. It would be permissible to sustain conviction on the solitary circumstance of FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 68/109 last seen. In the present case the evidence of video footage is much more than mere last seen evidence. It is the evidence of demeanour and conduct of the accused. It is evidence of crime itself. It is not difficult to contemplate from what we can see and what we cannot see in the camera, that what would have been happening inside the cabin, after keeping in mind the autopsy report of the deceased.
91. The defence has taken exception to these video footages harping on their inadmissibility. It has been argued that FSL has not tested the DVR's genuineness. They stressed on an answer given by PW-62, expert from FSL, in his cross examination that he did not examine if any addition, alteration or tempering with the DVR has been done or not because he was asked only to retrieve the data. This ground of the defence to assail the DVR's does not hold water. This witness has stated that there was no breakage in the timeline. No damage was observed in the DVR during examination. Further, the investigation officer seized the DVR on the same day and sealed it. There was no unusual delay in seizing it. It was seized through the proper procedure. There is no circumstance in the entire case which could suggest any opportunity to anyone to temper with it nor is there any motive for the investigation officer to meddle with it. These CCTV footages are therefore completely admissible and relevant piece of evidence and the original DVR being seized, the defence could have anytime asked to play the original DVR in the Court. The Courts have relied video footages in convicting the accused in many FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 69/109 cases. Hon'ble Bombay High Court in the case of Bhupesh @Rinku vs State of Maharashtra 2018 SCC OnLine Bom 1163 has upheld the conviction in a murder case while taking into consideration the video footages from CCTV cameras. A similar question was asked from the expert witness in cross examination by the defence wherein she stated that she has not conducted any test for ascertaining that the samples received were not tampered, edited or mastered. Despite that the Court relied on the footages and upheld the conviction under section 302 IPC and dismissed that argument. Recently the Hon'ble Supreme Court in Taqdir vs State of Haryana 2022 SCC OnLine SC 261, upheld the conviction of some of the accused on the basis of their role established in crime as seen in the CCTV footages dismissing the argument that DVR was not played in Court. Similarly, Hon'ble Delhi High Court in Mohd. Azad Alam vs State 2014 SCC OnLine Del 4443, upheld the conviction of the accused in an armed dacoity on the basis of CCTV footages terming them as irrefutable evidences.
92. So, the accused owe an explanation that what happened in the shop and that why they returned and what all four of them were doing there after they all left the shop before sometime with PW-1 Sonia. But they are silent on this aspect and has offered no explanation. In Sehdevan vs State (2003) 1 SCC 534, it was observed by the Hon'ble Supreme Court that if the prosecution, based on reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 70/109 thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company.
93. The accused can either put their defence during the cross examination of the witness and can try to elicit their explanation of defence from prosecution witness if possible or they can do it during their examination under section 313 Cr.PC. They can also do it in the defence evidence. But their denial in their examination under section 313 Cr.PC was general and they have not led any defence evidence. I am conscious of the fact that questions put in the cross-examination of the witness of prosecution by the defence counsel does not amount to admission of guilt or admission of those facts on which the questions were put, on the basis of the judgment of Koli Trikam Jivraj & another vs State of Guajrat AIR 1969 Guj 69 of Hon'ble High Court in which it was held that suggestions put in cross examination are no evidence at all and on the basis of such suggestion no inference can be drawn against the accused that he admitted the fact referred to in suggestions. It is possible that in putting suggestions the lawyer of the accused, if he thinks fit and proper, may not put the entire case of the accused in the cross examination of the prosecution witness. Moreover, the lawyer who appears for the accused keeping in mind the facts of the case that he defends, has the right to take up a defence that he thinks just and proper. Therefore, the accused is entitled to the benefit of the plea set up by the lawyer but it cannot be said that the plea or defence which his lawyer puts forward must bind the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 71/109 accused. The reason is that in a criminal case a lawyer appears to defend the accused and has no implied authority to make admissions against his client during the progress of the litigation either for the purpose of dispensing with proof at the trial or incidentally as to any fact of the case. Hon'ble Delhi High Court in Pawan Kumar vs State 2019 SCC OnLine Del 10452, also reiterated this legal principle. Defence has also relied on the judgment of Kanhaiya vs State 2015 SCC OnLine Del 7840, where it was held that the mere suggestion given by the accused during the cross examination is not sufficient to arrive at a conclusion that it were the accused who were the assailants.
94. However, it is pertinent to note that here it is not the mere suggestions which are the only evidence against the accused and the aforesaid judgments should be considered in this perspective. And this has to be understood in the light of the fact that suggestions cannot be considered as admissions to convict the accused only on their basis where the prosecution does not have any other evidence or have the other evidence of weak nature. But the suggestions given in the cross examination can be taken into consideration if the prosecution has put up a strong case by leading particular evidence and that evidence got support from the suggestion given in the cross examination. Therefore, while suggestions in isolation are not admissions of guilt and conviction cannot be based on mere suggestions in cross examination considering them at par with admissions of guilt, but they can always be the corroborators of the main evidence. In Jesu Asir FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 72/109 Singh & Others vs State (2007)12 SCC 19, it was observed by Supreme Court that the question put in the cross examination to a great extent probabilises the prosecution version. Though, questions put in cross examination are not always determinative in finding accused guilty, they are certainly relevant.
95. This point's discussion is necessary in this case because one of the counsels of the accused persons has given certain suggestions to the primary witness PW1 Sonia Arora and her sister PW-7 Pooja, which corroborates the main evidence of the CCTV footage that they were in the shop just prior to the death of the Mr. Gurcharan Singh. The suggestions and answers given to them by both these witnesses are in a kind of the suggestion that though accused were on the spot and committed robbery but not the murder. In cross examination, PW-1 Sonia denied the suggestion that the accused Sunday and Mr. Gurcharan Singh were known to each other for the past considerably long period of time from the date of incident in question. She denied the suggestion that they were connected to each other due to business and monetary interest, as accused Sunday used to do business of supplying hair with Gurcharan Singh. She denied the suggestion that Gurcharan Singh was providing a channel to accused Sunday by using his own bank account in Delhi for receiving money from accused Sunday's distant relatives and known persons residing outside Delhi and India, who used to transfer or pass money for different purposes to accused Sunday, time to time, by depositing money at their respective places in the bank account of Gurcharan FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 73/109 Singh. She denied the suggestion that Gurcharan Singh used to withdraw that money from the account of accused Sunday and charge commission, on each transaction done in this manner from accused Sunday. She denied the suggestion that on account of the above stated business and money transfer transactions, Gurcharan Singh was owing huge amount towards accused Sunday, which Gurcharan Singh was not giving to him despite repeated request by Sunday. She denied the suggestion that Gurcharan Singh was delaying the said payment on one pretext or the other for the past considerable period of time. She denied the suggestion that this fact was in her knowledge or that the said fact had also been brought to the knowledge of her sister Pooja by her. She denied the suggestion that both of them were frustrated with Gurcharan Singh, because of the demands of sexual favours by Gurcharan Singh from both of them which was increasing day by day. She denied the suggestion that these sisters first themselves came near Gurcharan Singh for business interests. When they became successful, they wanted to get rid of Gurcharan Singh after he started a new shop for Pooja. She denied the suggestion that after the shop of Pooja was opened, they had no interest in Gurcharan Singh and was not interested in continuing their relationship with him. She denied the suggestion that Gurcharan Singh was compelling and threatening to expose them as he was having something objectionable with him. She denied the suggestion that Gurcharan Singh started misusing both of them to satisfy his lust and therefore, both of them were desperate to eliminate him at any FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 74/109 cost. She denied the suggestion that she looked an opportunity into Sunday to eliminate Gurcharan Singh. She denied the suggestion that she took accused Sunday in her confidence and lured him to rob Gurcharan Singh, in case he did not give the money easily, on the pretext that Sunday will get his money due on Gurcharan Singh out of which she will take twenty five percent as she was in the need of money. She denied the suggestion that she said to Sunday that she will facilitate the robbery. She denied the suggestion that it was planned that Sunday will come in the office with his associates and this witness leave the office on some pretext. She denied the suggestion that Sunday and his associate was to tie Gurcharan Singh with rope and put a tape on his mouth and to take the cash available in the office leaving Gurcharan Singh in the same position. She denied the suggestion that it was the part of the conspiracy that later on she will come in the office, protrude innocence and will convince Gurcharan Singh not to lodge any complaint with the police as it will expose the illegal activities of Gurcharan Singh as well. She denied the suggestion that the day of Wednesday was chosen by Sonia because it was weekly off for other employees and the market being closed it was frequented with less people. She also denied the suggestion that she asked the accused persons to break the camera before leaving the office. She denied the suggestion that in this manner she used the accused persons to execute her plan to eliminate Gurcharan Singh without herself coming in picture. She denied the suggestion that after the accused had left, she came to the office FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 75/109 and finding Gurcharan Singh tied with a rope, murdered him with the help of her associates, untied him carefully so that her figure prints does not remain there, manipulated the scene of crime to give a look as if the accused committed the murder. She denied the suggestion that she removed the rope and tape from the crime scene. She denied the suggestion that the actual recording was done by the second camera installed in the cabin of the deceased which captured the true picture and that is why the police has deliberately concealed it. She denied the suggestion that due her struggle with the deceased there were nail marks on the face of Mr. Sahani.
96. The nature of suggestions given to the witness PW-7 Pooja who is the sister of this aforesaid witness are consistently similar though in brief therefore are not repeated.
97. To the investigating officer also the suggestions were given in his evidence that the investigating officer was aware that the girls Pooja and Sonia were involved in the murder of deceased and that Ms. Pooja Travels was being run by Gurcharan Singh on account of his love and affection to the girl Pooja.
98. The suggestions given to both these witnesses were that the murder was committed by these prosecution witnesses Sonia and Pooja and not by the accused persons. There was a conspiracy between Sonia PW-1 and Pooja PW-7 on one side and accused Sunday Chinaka to commit robbery. The suggestions give an inference that the accused persons only committed robbery in this FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 76/109 case and after tying Gurcharan Singh, left the place after which, it was Sonia and Pooja who committed the murder as they want to get rid of Gurcharan Singh on account of their sexual harassment by him. These suggestions can be summed up in one line by saying that it is easy to commit a murder than to justify it. In State of Punjab vs Jagir Singh & Ors. (1974) 3 SCC 277, the Hon'ble Supreme Court held that in order to draw inference about the falsity of the evidence of the prosecution witnesses, it is not enough to show the existence of alternative possibility but it is also necessary to rule out the existence of such possibility.
99. In this case how did the defence rules out that possibility of crime by these accused is not clear.
100. Therefore, the strong evidence of CCTV footage and a limited corroboration of it in the form of presence of accused on the crime scene by defence suggestions, commission of robbery by them clearly proves that what the CCTV is showing is beyond doubt. The investigating officer in his cross examination after looking at the video footage in the DVD Ex. P-12 has stated that the accused Samual was seen in the footage in yellow T-shirt, Keneeth Chidi is seen in green T-Shirt with white strips, Bayem victor was seen in green T-Shirt having the logo of rabbit and the Sunday Chinaka was seen in the white T-Shirt. The three T- shirts were the same which were recovered from their houses. The deceased and Sonia are not seen in the footage after these accused returned to the office after leaving Sonia at the Metro Station. No other customer had come in the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 77/109 office of Gurcharan Singh during that entire period as per the footage. This CCTV is a recording of one Camera CH2. In the footage it is clearly visible that a camera was being broken by one of the accused Kenneth Chidi.
101. The CCTV footages are so convincing that no other evidence is required to convict the accused. In view of the aforesaid, the issue of last seen is established, and I would have no hesitation to convict the accused on the basis of such a strong evidence and absence of any valid explanation of what they were doing in the cabin of deceased. But then there are other circumstances in this case.
102. The second circumstance is motive. According to the prosecution, the motive of crime was robbery and murder was the consequence of it. The prosecution has relied upon the recoveries of the currencies from the accused to show that it was the same currency robbed from the office of Gurcharan Singh. When these accused were arrested certain amount of currency were recovered from them. The accused Sunday Chinaka was arrested first and at him 1200 US Dollar and 90 pounds were found. Next arrest was Bayem with whom 1400 US dollars, 110 pounds and 300 rupees were found. From Eziefula Samuel 200 dollars and 24500 rupees were found. From Kenneth Chidi Rs.19300 and 150 dollars were found. From Emenike Decland Rs.40,000/- were found. According to prosecution, these were the part of robbed money. Witness Sonia PW-1 has deposed that on that day Gurcharan Singh has brought Rs.5,14,630 /-, 3560 US dollars and 570 FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 78/109 pounds and Euros. He made an entry of this currency in his register. This day book register is Ex.PW2/A3. I have seen this register. 31/08 is the last entry day and certain amounts are written in it which match with the description given by Sonia. This amount is written in pencil but then all other previous entries are also mostly written with pencil only. This day book register was proved by PW-1 Sonia and PW-2 Deepak and proves that Gurcharan Singh must have brought this money to his office on that day. Although the currency recovered from the accused have no identification marks to conclusively link it with the robbed currency and the number of currencies is also not so exceptionally high that it cannot generally be possessed by any person but still this money was recovered in such a short span after the incident i.e., after 4-5 days that in overall facts and circumstances of the case it can be presumed that the currency recovered from these accused was a part of the robbed money. One of the striking features of recovery is that the accused are Nigerian national as per their own admissions but did not have much Nigerian currency with them at the time of their atrrest. One of the arguments of the defence was that if the intention of the accused was to rob the deceased, then why they left the amount of Rs.2 lakhs, 1,34,000/- and gold coins recovered from the office of deceased. It is true that these were found from the shop. But only the accused know why they did not take these also with them. It may also be a reason that they could not detected it as it was lying in a bag and a shelf or they were so panic stricken at that time that FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 79/109 these skipped their attention. Otherwise, Kenneth was seen searching for things many times by opening drawers and shelves of the receptionist. Whatever is the reason for not taking the entire money, it may not dilute the motive. As said above, a suggestion of the accused committing robbery has been there in the cross examination of PW-1. A summary of the cross examination shows that the counsel for some of the accused put a suggestion to PW-1 that after committing robbery in the office, these accused left the spot and the murder was committed later on. Not only this, one more suggestion was given was that Gurcharan Singh and Sunday were known to each other and were doing some business. Sunday owed a lot of money from Gurcharan Singh which he was not giving and PW-1 Sonia trapped him in a conspiracy and lured Sunday to rob the deceased. The combined evidence of prosecution and the suggestion of the defence in this regard will no doubt points toward the existence of motive for the accused Sunday and his associates to rob the deceased. The defence suggestion will show that Gurcharan Singh and Sunday were not strangers. A copy of passport and a copy of western union receiving form found from the office points to this fact. It may be difficult to attribute motive when the victim and the assailants are strangers. But when they are known to each other and may have some monetary transactional history, their differences may be possible which may create some motive.
103. Motive in the cases of circumstantial evidence is an important piece of evidence and absence of motive in such cases FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 80/109 weighs in favour of the accused unlike in cases of direct evidence. Recently, the Hon'ble Supreme Court of India in the case of Nandu Singh vs State of Madhya Pradesh, Crl Appeal No. 285/2022 dated 25.02.2022 has observed that in a case based on substantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.
104. In Anwar Ali vs. State of Himachal Pradesh (2020) 10 SCC 166, Hon'ble Supreme court stated the legal position that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.
105. In State of U.P. v. Kishanpal 1995 Supp (1) SCC 80, Hon'ble Supreme Court examined the importance of motive in cases of circumstantial evidence and observed that the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 81/109 the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also set- tled law that the motive loses all its importance in a case where di- rect evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye- witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. The absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.
106. In the case of Amitava Banerjee vs State of West Bengal (2011)12SCC 554, Hon'ble Supreme Court held regarding motive that motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 82/109 Courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence. Human nature being what it is, it is often difficult to fathom the real motivation behind the commission of a crime. And yet experience about human nature, human conduct and the frailties of human mind has shown that inducements to crime have veered around to what Wills has in his book "Circumstantial Evidence"
said: "The common inducements to crime are the desires of revenging some real or fancied wrong; of getting rid of rival or an obnoxious connection; of escaping from the pressure of pecuniary or other obligation or burden of obtaining plunder or other coveted object; or preserving reputation, either that of general character or the conventional reputation or profession or sex; or gratifying some other selfish or malignant passion."
107. In Jagdish vs State of Madhya Pradesh (2009)9 SCC 495, Hon'ble Supreme Court observed that it is true that in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not cor- rect. It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt. The story that a thief was present in the room introduced by Ramprasad at the stage of the trial was doubtless an attempt to help the appellant who was FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 83/109 his brother.
108. In the case of Mulakh Raj and Others vs Satish Kumar and Others (1992)3 SCC 43, it was held that undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a mat- ter of law. Proof of motive is never an indispensable for convic- tion. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
109. Therefore, in the light of the facts of this case and law dis- cussed above, it is clear that the motive of the accused stands proved in this case. Once it has been proved that they were the last persons in the shop of the deceased just before his death and also had the motive, the onus had shifted upon them to explain that why it should not be presumed that they were the perpetrators of crime. What happened in the shop after they went second time is exclusively within their knowledge? What was the need for them to break the camera as one of the accused Kenneth Chidi was seen in the footage breaking the camera? The need for breaking the camera will arise only in a guilty mind with an intention to wipe of the evidence. Experiences show that many times most heinous FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 84/109 crimes have been committed for slightest motive. Many murders even lack a rational motive.
110. Next is conduct. It is relevant piece of evidence in cases of circumstantial evidence. The evidence of conduct, like motive is relevant in section 8 of the Indian Evidence Act and in fact the il- lustrations (f) & (h) of section 8 makes absconding of the accused a relevant fact. But the mere fact that the accused was absconding after the crime is no inference of guilt. In Matru Vs State of UP (1971) 2 SCC 75, it was observed by the Hon'ble Supreme Court that mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel pan- icky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-preservation. The act of abscond- ing is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the cir- cumstances of each case. Normally the courts are disinclined to at- tach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.
111. In the case of Dhananjoy Chatterjee vs State of W.B, (1994)2SCC 220, it was observed that abscondence by itself is not a circumstance which may lead to the only conclusion consistent with the guilt of the accused because it is not unknown that inno-
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 85/109cent persons on being falsely implicated may abscond to save themselves but abscondence of an accused after the occurrence is certainly a circumstance which warrants consideration and careful scrutiny.
112. Now it has been proved on record that all five accused were down on their luck in attempting to evade their arrest after the crime. They had made a break for different cities. It has been proved by the witness Rajesh PW-22 who was a cab driver that all the five accused approached him in the night of 31 st August that is the date of murder and all of them were taken by him in his cab to Chandigarh. It shows that they all flocked together, first to Chandigarh and then they dispersed in different directions. The accused Sunday was arrested from Calcutta from Green View Ho- tel on 3rd September that is after three days of the incident. One day before he stayed in Mayur Residency, the slip Ex.PW51/A to C were recovered from him after his arrest. It shows that he was changing the hotels also. Similarly, the accused Bayam Victor was arrested from Chennai Railway Station who travelled from Mum- bai to Chennai. The accused Eziefulla Samuel and Kenneth Chidi were apprehended from Hotel Residency in Mumbai. They were living there under different names. These accused have been iden- tified by Mohd. Bashir PW-49 Manager, Hotel Residency Park, Mumbai, during his evidence. It shows that they were trying to evade this case, after fleeing in different directions. It has come on record that they were living in a rental accommodation in house number E 32, Hatsal Vihar owned by PW-13 Geeta. Since this is FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 86/109 their rental address, the three accused recovered their clothes also from this address, proved and identified by the investigating offi- cer in his evidence. These clothes are Ex.PW52/A8, A9 and A10. The accused has not offered any explanation about their being in different cities and if those visits were for any particular purpose, then what was that. The case if looked in its entirety will make one believe that their dispersions in different cities was pre- planned and was with an intention to dodge the police. Not only this, the conduct of the accused prior to the crime is also relevant. They ensured that the shop remain secluded from the employees and that is why they took Sonia away from the shop on the pretext of shopping. They immediately returned to the shop of the de- ceased after engaging her with the fifth one. If their work in the shop of Mr. Sahani was over, what was the need to return back. Their conduct of breaking the camera after the crime is also rele- vant and creates a severe suspicion against them.
113. The next important circumstance is the cause of the death of the deceased. According to postmortem report Ex.PW6/A, there were seven external injuries on the body of the deceased, out of which three were incised wounds, a ligature mark on the neck and other abrasions and some nail marks. The cause of death was as- phyxia produced by ligature strangulation of neck in combination with crania cerebral injury made by the blunt impacts on head. She opined that both in combination and individually can cause death in ordinary course of nature. The upperpart of the face was smeared with blood. This shows that Gurcharan Singh was as-
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 87/109saulted before his death and the injuries were sufficient in the or- dinary course of nature to cause death. There were some incised wounds on the body which stands corroborated by the recovery of instruments like scissor and paper cutter from the spot. In fact, he was no match in strength for the four accused who were young and strong as compared to him. Gurcharan Singh could not have put any resistance to them.
114. The fifth circumstance is the recovery. As stated above, the recovery of currency notes was affected from the accused which was not explained by them. Apart from that the phone Ex.P1 of the deceased which was missing from his office was found in the cab of PW-22 Rajesh. It has been proved on record that just before this phone was found in the cab, all the five accused travelled in it. They advertently or inadvertently left it in the car to be found later on by cab driver Rajesh PW-22. It has also come in the evidence of PW-48 Inspector Raman Lamba that for a brief period of time the accused Bayem Victor inserted his sim No. 96547731690 in this phone Ex.P1 of the deceased after the incident at around 1:40 pm. The recovery of this mobile phone was through an indepen- dent witness and the claim of the defence that it was planted upon him has no reasonable basis and the cab driver identified the ac- cused in the court during his evidence as those whom he dropped in Chandigarh. The recovery of this mobile shall also be attributed to these accused, though not directly by the police but through the witnesses Rajesh PW-22 and Surender Singh PW-35. Therefore, these recoveries are another important and major link in the infer-
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 88/109ence of guilt of these accused in the commission of the present case. The defence has questioned the identification of these ac- cused by the witness Rajesh in court. There is some substance in this argument because this witness has identified the accused after around four and half years of incident in his evidence. The identi- fication may be shrouded in doubt because in cross examination he said that all looks alike but cannot be outrightly rejected. Fur- ther that he was not participated in TIP. The contention that the ac- cused were not subjected to test identification parade by this wit- ness is not of much value as this witness has passed the entire night with these accused and has sufficient time to see and ob- serve them. At one point he stated that he saw accused in police station on 04.09.2011, which has been targeted by defence. This witness, as said, was deposing in court after some years and it is not expected that he remembers all these things. This a very minor issue and can to be overlooked without any difficulty.
115. The arguments of defence revolved largely around the la- cunas and lapses in the investigation like the travel documents of the police officers and all the accused have not been placed on record, CCTV footages of hotels from where the accused were ar- rested, CCTV footages of the Metro, of market etc were not scru- tinized. It is true that these are lapses and there are other lapses as well. If the police could have filed the air tickets of Bayem Victor, Samuel and Kenneth, the air ticket of Sunday and the travel docu- ments of the police officer who brought them should have also been filed. The other submissions relate to the defective proof of FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 89/109 the documents of the stay of the accused in the hotels from which they were apprehended etc. Admittedly, these are lapses but what is to be seen is that even without these evidences, whether the prosecution case is proved or not. If the case is proved beyond reasonable doubt with the evidences led, the absence of the other evidences which were available but not filed, will hardly make a difference. The case is to be considered by the positive evidences led and should not be handicapped by what has been omitted un- less it causes prejudice to the accused and questions fair investiga- tion. A lot could have been done by the investigating officer, but that would have made the case of prosecution stronger and not weak . In Dayal Singh & others vs State of Uttranchal 2012 (8) SCC, it was observed by the Hon'ble Supreme Court that merely because there has been some defect in the investigation, it would not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. In the case of Suresh Chand Jana vs State of West Bengal (2017) 16 SCC 466, it was observed by Hon'ble Supreme Court regarding defective investigation and prosecution that the function of a crim- inal court is to find out the truth. The whole purpose of the trial is to convict the guilty and at the same time to protect the innocent. In this process, court should always be in search of the truth and should come to the conclusion, based on the facts and circum- stances of each case, without defeating the very purpose of justice. It is impossible to come across a single case where the investiga- tion was completely flawless or absolutely fool proof. The func-
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 90/109tion of the criminal court is to find out the truth and it is not the correct approach to simply pick up the minor lapses of the investi- gation and acquit the accused, particularly when the ring of truth is undisturbed. It may be mentioned that it is not every doubt but only a reasonable doubt of which benefit can be given to the ac- cused. A doubt of a timid mind which is afraid of logical conse- quences, cannot be said to be reasonable doubt. The experienced, able and astute defence lawyers do raise doubts and uncertainties in respect of evidence adduced against the accused by marshalling the evidence, but what is to be borne in mind is - whether testi- mony of the witnesses before the court is natural, truthful in sub- stance or not. The accused is entitled to get benefit of only reason- able doubt, i.e., the doubt which rational thinking man would rea- sonably, honestly and conscientiously entertain and not the doubt of a vacillating mind that has no moral courage and prefers to take shelter itself in a vain and idle scepticism. The administration of justice has to protect the society and it cannot ignore the victim al- together who has died and cannot cry before it. If the benefits of all kinds of doubts raised on behalf of the accused are accepted, it will result in deflecting the course of justice. The cherished princi- ples of golden thread of proof of reasonable doubt which runs through web of our law should not be stretched morbidly to em- brace every hunch, hesitancy and degree of doubt.
116. One more argument was that the first person who saw the deceased was Satish who was called by Sonia but there is no CDR of their conversation or the conversation of Sonia with Gurcharan FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 91/109 Singh. Further the conduct of Satish was strange as he did not call the police. It is true but it is also true that this witness was not cross examined by the defence. Different persons behave differ- ently. Ideally, he should have tried to help Gurcharan Singh and call the police but showing insensitivity, he ran away from there. But that does not weaken the prosecution's case. It is further stressed that if the accused were in the shop, when why their chance print could not be found, why the FIR was not registered on the basis of the statement of Sonia and Pooja, why the shop was open on a holiday, why the name of other shop was Pooja In- ternational, why the names of these girls is not mentioned in the crime team report, why the cash was found in the shop, if the rob- bery was committed.
117. These are all ancillary matters. There can be as many why's as the human imagination can think of. But the quest here is dif- ferent. As to the submission that the FIR was not registered on the statement of Sonia is concerned, it is clear that the FIR is just an information to start the investigation. This could have been on the statement of any person, even a police officer, who first went on the spot and suspected murder. Deepak has been made a com- plainant of this case and he has stated about his discussion with Sonia. Regarding some differences in the time frames in the wit- nesses like Sonia and the video footages, they are natural. The witness Sonia is not expected to have memorised the exact tim- ings. She has told the tentative timing of the various episodes in this crime. These differences will not matter and the time lines FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 92/109 shown in video footages are conclusive. Though, the counsel for the accused Samuel and Kenneth, Mr. Kanhaiya Singhal has raised suspicion on the genuineness of the CCTV footages of the shop, the counsel for the other accused Mr. Rajeev Mittal has stated during arguments that he has never disputed these footages and that is why though suggestions were given by him in the cross-examination.
118. It has also been submitted that weapon of offence has not been recovered. The doctor who conducted the postmortem has stated that the strangulation referred in the postmortem is some kind of ligature, it might be cloth and the blunt impact made on the head were not possible from the articles recovered from the shop. Mere on recovery of weapon of offence is no ground to ac- quit the accused. In many cases weapons are not recovered, in many cases the weapons are taken away by the criminals with them and destroyed. In the case of Nankaunoo vs State of Uttar Pradesh (2016)3 SCC 317, the defence argument that the weapon of the murder i.e., pistol was not recovered by the investigating officer, it was held that in the light of unimpeachable oral evi- dence which is amply corroborated by medical evidence, non- re- covery of country made pistol does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecu- tion's case. Story of the prosecution is to be examined dehors, such omission by the investigating agency. Otherwise, it would shake the confidence of the people not merely in the law and forc-
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 93/109ing agency but also in the administration of justice. In Lakshmi and other vs State of Uttar Pradesh (2002) 7SCC 198, where the accused were arrested after three months, the Hon'ble Supreme Court held that, that explains the non-recovery of the weapons which is of no effect on the case. It is was observed that when the prosecution case is established on the basis of trustworthy testi- mony of the eye witness, non-identification of the deceased, non- ascertainment of the cause of death and non-recovery of the crime weapons could not be fatal to the prosecution. Mr. Rajeev Mittal during his arguments has introduced "two camera theory" and tried to turn the tables against the sisters, on the ground that in the evidence of witnesses it has come that two cameras were lying broken on the ground. The footage of camera CH2 has been made available but the footage of the second camera is deliberately avoided. He stressed that the second camera was in the cabin of the deceased and captured the real incident in which the sisters murdered the deceased. I think this is too imaginative and fanciful an argument. It has come in the evidence of the investigating offi- cer that both the cameras were adjacent to each other and were in- stalled side by side in the office just near the entry gate. It seems that only one camera was working at that time which has captured the video.
119. The entire gamut of the argument of defence is with respect to what has not been done by the investigating officer rather than what he has done. The video footages evidence is so strong that it has overshadowed all these lapses of the investigation.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 94/109120. The Hon'ble Supreme Court of India in Surajdeo Mahto & Another vs State of Bihar 2021 SCC Online 542, has upheld the conviction of the appellant Surajdeo Mahto in a murder case based on circumstantial evidence on the basis of last seen theory, motive and subsequent conduct of the appellant as relevant fac- tors. In the present case also the last seen theory, motive and con- duct of the accused are relevant factors. In Satpal vs State of Haryana (2018) 6 SCC 610, the circumstance of last seen, recov- ery of a cycle and the fact that appellant was absconding after the occurrence till his arrest were found incriminating factors to com- plete the links in the chain of circumstances to upheld the convic- tion in a murder case. In Praful Sudhakar Parab vs State of Ma- harastra (2016) 12 SCC 783, the accused recovered his clothes which he was wearing at the time of occurrence. The recovery of clothes worn by the accused was said to have completed the chain of events along with the other recoveries.
121. Therefore, the aforesaid discussion shows that all the facts/circumstances and the evidence led to prove the same, indi- cates towards only one conclusion that is the guilt of the accused. To finally conclude, there is no doubt that on 31/08/2011 at around 12.45 AM, the accused persons caused the death of Gur- charan Singh after robbing him. The accused are charged un- der section 302/392/34 IPC, 120B IPC and section 14 Foreigner's Act.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 95/109122. Section 302 IPC punishes the offence of murder. Murder is defined under section 300 of IPC in the following words :-
Section 300 in The Indian Penal Code
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or (Secondly)--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (Thirdly)--
If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- (Fourthly)--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
123. It has been argued on behalf of the prosecution that this case will fall under clause (1) and (3) of section 300 meaning thereby the death of Gurcharan Singh amounts to murder because the act by which the death was caused, was done with the intention of causing death and also with the intention of causing bodily injury, which is sufficient in the ordinary course of nature to cause death. On the contrary, it has been also argued on behalf of defence that FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 96/109 even if the prosecution case is accepted, an intention to cause is not there.
124. The facts presented by prosecution shows that it is clear that this case will fall not only in the first clause but also in third clause of Section 300 IPC. The nature of injuries shown in the postmortem report clearly indicates a culpable intention to that effect. Whether the death was actuated by the intention to cause death is a subjective element and has to be deduced from the objective facts, circumstances and behaviour of the accused. In this clause, all those cases will be covered where the direct intention of the accused is to cause the death of a person. Inference of such intention can be drawn from the manner in which the death is caused, the weapon used, the nature of injury given, the seat of injury on the human body, the motive and any other relevant circumstance connected with the death of a person. In the present case, from the nature of injuries to Gurcharan Singh and the manner in which it was inflicted, sets out the clear intention of the accused to cause his death. The injuries were so numerous and severe that he collapsed on the spot and even could not reach the hospital alive.
125. The third clause of section 300 IPC states that every culpable homicide is murder, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 97/109126. To see whether the case of the accused will also fall under section 302 clause three or not, I am relying upon the judgment of Hon'ble Supreme Court of India in Virsa Singh vs State 1958 AIR 465. In this case, Hon'ble Court has set out the four elements test, which the prosecution must prove to bring its case under this section. The following passage in the judgment which has become locus classicus on this issue. It's as -"To put it shortly, the prosecution must prove the following facts before it can bring a case under s.300, 3rdly" ; First, it must establish, quite objectively, that a bodily injury is present ;Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 98/109 (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
127. Now in the present case, it is clear that the bodily injuries were present on deceased Gurcharan Singh and these were seven in number. The nature of injuries is described in the post- mortem report(mentioned above). I have already stated above that the facts and circumstances of the case shows that the accused intended to inflict the same injuries which were in fact there on the deceased. It is no case of the defence that it was accidental or unintentional, or that some other kind of injury was intended. Since the assault happened in a closed space, it was for the accused to explain what was their intention other than causing injuries found present on the body of the deceased. Therefore, first three requirements according to this judgement are fulfilled. Lastly, it has to be FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 99/109 proved by the prosecution that the injuries inflicted by the accused were sufficient to cause the death in the ordinary course of nature. The doctor, who had conducted the post- mortem has stated this fact in clear terms in the post- mortem report that the cause of death in this case was asphyxia produced by ligature strangulation of neck in combination with crania cerebral injury made by the blunt impacts on head. She opined that both in combination and individually can cause death in ordinary course of nature. The ligature mark may be of the wire as wires were found in the shop and may have been used for causing death. Whether an injury is sufficient to cause death in the ordinary course of nature depends upon the probability of death which, if it is very great, then the requirement of third clause is satisfied and the fact that a particular individual may by the fortunate accident of his having secured specially skilled treatment or being in possession of particularly strong constitution, have survived an injury which would prove fatal to the majority of persons subjected to it, is not enough to prove that an injury is not sufficient in the ordinary course of nature to cause death. It cannot be said that an injury sufficient in ordinary course of nature to cause death is an injury which inevitably and in all circumstances must cause death. The best evidence to prove the nature of injury and whether it is sufficient to cause death is the medical evidence of a competent doctor. And it has been so given in this case that injuries were sufficient to cause death in the ordinary course of nature. Therefore, it has been proved beyond reasonable doubt that all the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 100/109 accused except Emenike were involved in the murder of Gurcharan Singh in furtherance of their common intention and are therefore guilty for commission of offence under section 302/34 IPC.
128. The accused are also charged with section 120-B, 411 and 392 IPC. As far as the offence under section 120B is concerned, it punishes criminal conspiracy. Criminal conspiracy is defined in section 120-A IPC. It is an agreement to commit an illegal act or to commit a legal act by illegal means. For a criminal conspiracy two or more persons are required. In State of Himanchal Pradesh vs Krishan Lal Pradhan (1987) 2SCC 17, it was held that the offence of criminal conspiracy consists in meeting of mind of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy, the conspirators commit several offence then all of them will be liable for the offences even if some of them had not actively participated in the commission of offence.
129. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually both, the existence of a conspiracy and its objects must be inferred from the circumstances and the conduct of the accused. It is not necessary that all conspirator should agree to the common purpose at the same time. They may join with other conspirators at any time before the consumption of the intended objective, and all are FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 101/109 equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express or in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. In the present case also, there is no direct evidence of conspiracy. The conspiracy has to be inferred from the circumstances. The circumstances show more of the existence of the common intention to commit the crime as the entire duration during which the crime was committed, was not more than one hour. The accused are charged for section 302 IPC with the aid of section 34 IPC. There is not much substantial difference between conspiracy and common intention under section 34 IPC. While in the former, the gist of the offence is bare engagement and association to break the law even though the illegal act does not follow, the gist of the offence under section 34 IPC is the commission of the criminal act in furtherance of the common intention which means that there should be unity of criminal behavour resulting in something for which an individual would be punishable if it were all done by himself alone. Section 34 IPC, requires not only common intention but also participation in the FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 102/109 crime. To punish an accused under section 120-B, it is essential to establish that there was some common object to be achieved and there was an agreement by the accused to achieve that object, that is there was meeting of minds. In the present case though, there may be the common object of the accused to commit this crime, but there is no evidence to show that it was in pursuance of any conspiracy between them. Here a case of common intention is more vigourously made by the prosecution. The manner in which the crime is committed and came out in the evidence of the witnesses and videos, shows that there was some pre-arranged plan to commit this crime and no doubt that there was prior concert between them which is inferred from the circumstances but despite that the existence of a criminal conspiracy is not proved. However, a case of common intention to commit the offence is made out. Common intention may also be developed on the spot but that is not the case here. It is clear that the common intention was there throughout the commission of the offence and was there from some time prior to the crime. Therefore, the charge of criminal conspiracy for committing robbery and murder as alleged in this case is not proved beyond reasonable doubts. Regarding Emenike, it is clear that he was not a part of the group which caused the murder after robbery in the shop of the deceased. He is indicted in criminal conspiracy for committing murder and robbery but since the conspiracy is not proved, it is clear that the accused Emenike is not guilty either of murder or FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 103/109 robbery and also for being a part of the criminal conspiracy as alleged.
130. Though the recovery of the money recovered from these accused is not extraordinary but there has been evidence that deceased brought rupees, pounds, dollars etc on the date of incident and they were recovered from the accused within few days of incident. Some money must have been spent by them. Total 2950 US Dollars and 200 pounds were recovered from the four accused who were arrested first. Rs.24500 were recovered from Samuel and Rs.19300 from Kenneth and lastly Rs.40,000 from Bayem Victor. On that day deceased brought 3560. dollars and 570 pounds and Rs.514630/-. Like that of murder, there is no direct evidence or robbery but the circumstances indicate the involvement of accused in it. The accused were also charged under section 411 IPC but since the accused themselves robbed the money, they cannot be convicted under section 411 IPC because a person who himself commit theft or robbery cannot be punished for receiving or retaining stolen money. In State vs Johari (1910) 23ILR All 266, it was held that the section does not apply to the actual thief. The class of person again whom it is directed, is a class of persons who received or retained any property after knowing or having reason to believe the same to be stolen property. The charge under section 392/34 IPC is proved against all accused except Emenike and charge under section 411 IPC is not legally made out in this case.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 104/109131. All the accused are also charged for the offence under 14 of the Foreigners Act. Section 14 of the Act, provides punishment up to five years and fine, if a foreigner remains in India exceeding the period for which the visa was issued to him or does anything in violation of the conditions of the valid or violates any provision of this Act. The allegation of prosecution is that the passports of all the five accused were forged. There is no report regarding their Indian visas annexed on their passports, whether they were also forged or validly obtained. Though, when the passports were forged, the visas cannot be said to be legally obtained. When the first accused Sunday was arrested, the passport Ex.PW46/A1 was recovered from him. Although Sunday stated in his statement under section 313 Cr.PC that he is a Nigerian national but his passport is of Kingdom of Lesotho. The verification report regarding this passport is Ex.PW59/G proved by the investigating officer and not by the embassy official, who issued this letter. The report of the Nigerian Embassy is Ex.PW59/G. According to this reply it was confirmed by the High Commission of Lesotho that the Lesotho passport no. RA641853 belongs to David M Rankhethoa, a Lesotho citizen born on 06.12.1966 at Linotsing in Lesotho and this passport was issued on 21.06.2009. This reply was given by Maile Masoebe. During trial a lot of efforts were made to secure the attendance of this witness but this witness could not be examined as he left the country after his employment was over and there was no substitute employee conversant with his writing or signature. This letter is the only evidence of the fact FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 105/109 due to which the passport of Sunday Chinaka is considered as forged/fake by the prosecution. A visa of Republic of India is annexed on this passport showing its duration from 18.05.2010 to 17.05.2013, therefore valid on the date of incident and his arrest. In the absence of the due proof of this letter, I have no hesitation in giving the benefit doubt to the accused Sunday.
132. Next comes to the passport of Bayem Victor who is the second arrest of this case. Investigating officer R.S. Meena has deposed that passport of Bayem Victor seized by him vide seizure memo Ex.PW52/E. The passport is Ex.PW52/A2. This passport is on record issued by Federal Republic of Nigerian. It has a visa annexed with it valid from 04.02.2011 to 04.05.2011. During his examination under section 313 Cr.PC, when asked from Bayem Victor about his travel documents, he stated that these are on record. It means he admits that the passport seized by the investigate officer is his passport. Even if it is presumed that his passport is valid, it is clear that on the date of incident that is 31.08.2011 and on the date of his arrest that is 04.09.2011, he was not holding a valid visa and his visa had expired meaning thereby that he was not holding a valid visa on these dates.
133. The third and fourth accused are Samuel and Kenneth. They were arrested from a hotel in Mumbai on 06.09.2011. The accused Samuel has two passports which were seized by the investigating officer. These passports are Ex.PW48/A1 and Ex.PW48/A2. One passport is in the name of Eziefula Samuel Uchegub. The other passport carried by him is in the name of some other person FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 106/109 Ikechukwu Charles Nwazi. Like Bayem Victor, the visa expired on 14.03.2011, on the passport which is in the name of Eziefula Samuel Uchegub. Carrying two passports also creates a culpability on the part of this accused. The fourth accused is Kenneth from whom a passport was recovered Ex.PW48/A3. The duration of visa is from 13.07.2011 to 13.09.2011. It has come in the evidence of investigating officer that he has written letters to the High Commission Nigerian Embassy and FRRO Ex.PW59/P and Ex.PW59/Q. In both the letters, the same information has been sought about the genuine identity records of these accused with details of travel in India and validity period of their visas. In response, he received a letter through DCP from FRRO mentioning that the foreigners Sunday Chinaka, Bayem Victor, Kenneth Chidi and Samuel were neither registered foreigners nor extended their visas from FRRO office. The said letter is Ex.PW59/R. He also received a letter, Ex.PW59/S pertaining to arrival of all the five accused in India from the office of FRRO. The accused Sunday came to India on 01.05.2010, the accused Samuel came to India on 22.02.2011, the accused Kenneth came to India on 25.03.2011, the accused Emenike came to India on 09.02.11. There is no record of Bayem in this document. Here I can only say that these records Ex.PW59/R and Ex.PW59/S have not been proved as per law. Therefore, as far as the passport of Sunday and Kenneth is concerned, the document impugning it is not proved. It is proved that the Bayem Victor and Samuel were residing in India beyond the time period of their visa, as discussed FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 107/109 above. Regarding the last accused Emenike, the relevant witness is PW-65 SI Amit. He seized the passport of this accused Ex.PW61/C. The visa annexed shows that it was for duration of 23.01.2011 to 26.03.2012 meaning thereby even if it presumed that this passport is valid, it is clear that the visa had expired. In these circumstances, the accused Kenneth, Bayem Victor, and Emenike are guilty under section 14 of the Foreigners Act for violating the provisions of Foreigners Act.
134. The accused Emenike is also charged with the commission of under section 174-A of IPC which punishes non-appearance of a person in response to a proclamation issued under section 82 of Cr.PC. The application for obtaining the non-bailable warrant is Ex.PW59/T3, on which the court ordered the issuance of warrants. The application for issuance of the process under section 82 Cr.PC is Ex.PW59/T4, on which process under section 82 Cr.PC was issued and the certified copy of the order of proclamation of accused Emenike as proclaimed offender under section 82 Cr.PC is Ex.PW59/T6. Since Ex.PW59/T6 is a judicial order, therefore it is established that the accused Emenike did not obeyed the proclamation issued under section 82 Cr.PC and is therefore guilty of section 174-A of the Indian Penal Code.
135. As a result of the aforesaid discussion, all the accused are acquitted of the offences under section 120-B and 411 IPC. The accused Emenike Decland Nwaegbe was not charged with the offence under section 411 IPC.
FIR No. 291/2011 State Vs. Sunday Chinaka Uchem & Ors. Page 108/109136. The accused Sunday Chinaka Uchem, Bayem Victor, Eziefula Samuel Uchemgbu and Kenneth Chidi Onyeaghala are convicted for offence under section 302/34 of IPC. The accused Emenike Decland Nwaegbe is acquitted of the charges under section 302/34 IPC.
137. The accused Sunday Chinaka Uchem, Bayem Victor, Eziefula Samuel Uchemgbu and Kenneth Chidi Onyeaghala are convicted for offence under section 392/34 of IPC. The accused Emenike Decland Nwaegbe is acquitted of the charges under section 392/34 IPC
138. The accused Bayem Victor, Eziefula Samuel Uchemgbu and Emenike Decland Nwaegbe are convicted for offence under section 14 of Foreigners Act. The accused Sunday Chinaka Uchem and Kenneth Chidi Onyeaghala are acquitted for offence under section 14 of Foreigners Act.
139. The accused Emenike Decland Nwaegbe is convicted for offence under section 174-A of IPC.
140. List the matter on order on sentence.
Digitally signed by SAMAR SAMAR VISHAL
Pronounced in the open VISHAL Date:
2022.03.30
16:42:35 -0400
Court on 30.03.2022 (Samar Vishal)
Additional Sessions Judge -08
(West) Tis Hazari Courts Delhi
FIR No. 291/2011
State Vs. Sunday Chinaka Uchem & Ors. Page 109/109