Delhi District Court
State vs Manoj Etc.//Fir No. 346/05 on 16 March, 2011
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No.21/2009
FIR No. 346/05
PS : NANGLOI
U/s. 302/364/364-A/365/
201/120-B/34 IPC
STATE
VERSUS
1. MANOJ KUMAR S/O VIJAY SNGH
R/O H. NO. 36, EXTN. 4, NANGLOI, DELHI.
2. CHAMAN LAL @ KAKE S/O HARI RAM
R/O. 34B, EXTN. 4, NANGLOI, DELHI.
3. MANISH KUMAR @ MONU S/O RATTAN LAL
R/O. D-3, SHIV RAM PARK, NANGLOI, DELHI.
Date of Institution : 11.07.2005
Date of receipt of case in this court : 31.07.2009
Arguments heard On : 04.03.2011
Judgment Announced On : 11.03.2011
Orders on Sentence announced on : 16.03.2011
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI PRADEEP RANA, COUNSEL FOR ACCUSED MANOJ
KUMAR & CHAMAN LAL.
SH. SANDEEP SRIVASTAVA, COUNSEL FOR ACCUSED
MANISH KUMAR.
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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16.03.2011
Present : Sh. P. K. Verma, APP for the State.
Convicts Manoj and Chaman Lal in JC with their
counsel Sh. Pradeep Rana.
Convict Manish Kumar in JC with his counsel Sh.
Sandeep Srivastava.
1. It has been submitted by Sh. Pradeep Rana,
counsel for convict Manoj that he is an unmarried boy aged
about 26 years and having responsibility of old aged and
ailing parents. He is also having the responsibility of
unmarried sister. Convict Manoj is the sole bread winner of
the family. He has no previous criminal record and has never
been convicted by any court of law. He request that hence
lenient view may be taken against the convict.
2. Sh. Pradeep Rana, Counsel for convict Chaman Lal
further submits that convict Chaman Lal is aged about 27
years and is the only son of his parents who are old aged and
suffering from various ailments. He is also the sole bread
winner of his family, who will be at the verge of starvation in
his absence. He is not a previous convict and no other case
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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is pending against him as on today except the present one.
He further request that hence lenient view may be taken
against the convict Chaman Lal.
3. Sh. Sandeep Srivastava, Counsel for Convict
Manish Kumar has submitted that convict Manish Kumar is a
young boy aged about 25 years and is having old ailing
parents. Convict Manish Kumar was on bail in this case since
2009 and while being on bail he was also the sole bread
winner of his family, who will be at the verge of starvation in
his absence. He has never been involved in any other case
prior to the present one and has never been convicted and
no other case is pending against him as on today except the
present one. Ld. Defence Counsel for convict has further
submitted that this case does not fall in the category of
rarest of the rare cases and hence lenient view may be taken
against the convict.
4. On the other hand, Sh. P.K. Verma, Ld. APP for the
State states that all the three convicts planned the incident
and shared conspiracy for committing heinous crime of
abduction of Sandeep Kumar @ Sonu for ransom and later
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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on committed his murder. They also made ransom call and
demanded Rs. 5 lacs from the father of deceased Sandeep
Kumar @ Sonu and extended threat that in case the ransom
amount is not paid, the kidneys of Sandeep Kumar @ Sonu
will be sold for ransom. Ld. APP for state submits that in view
of this gruesome serious crime, all the three convicts may be
awarded maximum punishment for commission of offences.
5. Security of persons and property of the people is a
paramount function of the State which could be achieved
through machinery of criminal law. Protection of society and
stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence.
The facts and given circumstances in each case, the nature
of crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the
convicts. The nature of weapons used and all other attending
circumstances are relevant facts which would enter into the
area of consideration. Undue sympathy to imposed
inadequate sentence would do more harm to the justice
STATE VS MANOJ ETC.//FIR NO. 346/05
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system to undermine the public confidence in the efficacy of
law and society could not long endure under such serious
threats. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc.
6. It was observed in case of Dhananjoy
Chatterjee @ Dhana Vs. State of West Bengal, 1995
AIR SCW 510 as under :-
"Of course, it is not possible to lay down any
cut and dry formula relating to imposition of
sentence but the object of sentencing should be
to see that the crime does not go unpunished
and the victim of crime as also the society has
the satisfaction that justice has been done to it
in imposing sentences, in the absence of
specific legislation. Judges must consider
variety of factors and after considering all
those factors and taking an overall view of the
situation impose sentence which they consider
to be an appropriate one. Aggravating factors
cannot be ignored and similarity mitigating
circumstances have also to be taken into
consideration.
In our opinion, the measure of punishment in a
given case must depend upon the atrocity of
the crime; the conduct of the criminal and the
defenceless and unprotected state of the
victim. Imposition of appropriate punishment is
the manner in which the courts respond to the
STATE VS MANOJ ETC.//FIR NO. 346/05
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society's cry for justice against the criminals.
Justice demands that courts should impose
punishment fitting to the crime so that the
courts reflects public abhorrence of the crime.
The courts must not only keep in view of the
rights of criminal but also the rights of the
victim of crime and the society at large while
considering imposition of appropriate
punishment."
7. It was also observed in case of Jashubha
Bharatsing Gohil Vs. State of Gujrat, (1994) 4 SCC 353
that the protection of the society and deterring the criminal
is avowed object of law and that is required to be achieved
by imposing appropriate sentence.
8. It was held in the case of Siddarama & others
Vs. State of Karnataka, (2007) 1 SCC (Cri) 72 :-
"the object should be to protect the society and
to deter the criminal in achieving the avowed
object to law by imposing appropriate sentence.
It is expected that the courts would operate the
sentencing system so as to impose such
sentence which reflects the conscience of the
society and the sentencing process has to be
stern where it should be.
Imposition of sentencing without considering its
effect on the social order in many cases may be
in reality a futile exercise. The social impact of
the crime e.g. where it relates to offences
STATE VS MANOJ ETC.//FIR NO. 346/05
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relating to narcotic drugs or psychotropic
substances which have great impact not only on
the health fabric but also on the social order
and public interest, cannot be lost sight of and
per se require exemplary treatment. Any liberal
attitude by imposing meagre sentences or
taking too sympathetic view merely on account
of lapse of time or personal inconveniences in
respect of such offences will be result wise
counterproductive in the long run and against
societal interest which needs to be cared for an
strengthened by a string of deterrence inbuilt in
the sentencing system."
9. It was observed in the case of Shivaji @ Dadya
Shankar Alhat Vs. State of Maharashtra, 2008 (4) RCR
(Criminal) 202 as under :-
"Proportions between crime and punishment is
a goal respected in principles, and in spite of
errant notions, it remains a strong influence in
the determination of sentences. The practice of
punishing all serious crimes with equal severity
is now unknown in civilized societies, but such
a radical departure from the principle of
proportionality has disappeared from the law
only in recent times. Even now for a single
grave infraction drastic sentences are imposed.
Anything less than a penalty of greatest
severity for any serious crime is unwarranted
and unwise. But in fact, quite apart from those
considerations that make punishment
disproportionate punishment has some very
undesirable practical consequences."
STATE VS MANOJ ETC.//FIR NO. 346/05
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10. In case State of Punjab Vs. Prem Sagar and
Others (2008) 7 SCC 550 it was observed that the Indian
Judicial System has not been able to develop legal principles
as regards sentencing. It was further observed that whether
the court while awarding sentence would take recourse to
the principle of deterrence or reform or invoke the doctrine of
proportionality would depend upon the facts and
circumstances of each case and while doing so nature of
offence said to have been committed by the accused plays
an important role. A wide discretion is conferred on the court
but said discretion must exercise judicially while sentencing
an accused. It would depend upon the circumstances in
which the crime has been committed and the mental state
and the age of the accused is also relevant. It was observed
as under :
"In our judicial system, we have not been able
to develop legal principles as regards
sentencing. The superior courts except making
observations with regard to the purport and
object for which punishment is imposed upon
an offender, have not issued any guidelines.
Other developed countried have done so.
STATE VS MANOJ ETC.//FIR NO. 346/05
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Whether the court while awarding sentence
would take recourse to the principle of
deterrence or reform or invoke the doctrine of
proportionality would no doubt depend upon
the facts and circumstances of each case. While
doing so, however, the nature of the offence
said to have been committed by the accused
plays an important role. The offences which
affect public health must be dealt with
severely. For the said purpose, the courts must
notice the object for enacting Article-47 of the
Constitution of India.
A sentence is a judgment on conviction of a
crime. It is resorted to after a person is
convicted of the offence. It is the ultimate goal
of any justice delivery system. Parliament,
however, in providing for a hearing a sentence,
as would appear from sub-section (2) of Section
235, sub-section (2) of Section 248, Section 325
and also Section 360 and 361 of the Code of
Criminal procedure, has laid down certain
principles. The said provisions lay down the
principle that the court in awarding the
sentence must take into consideration a large
number of relevant factors; sociological
backdrop of the accused being one of them.
Although a wide discretion has been conferred
on the court but said discretion must exercise
judicially. It would depend upon the
circumstances in which the crime has been
committed and the mental state. Age of the
accused is also relevant."
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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11. The punishment provided under Section 302 IPC
and 364-A IPC is death or life imprisonment. The Indian Penal
Code has under gone multi facet changes for the last three
decades which indicates that the Parliament has taken note
of contemporary criminological thought and movement. The
Indian Penal Code reflects a definite swing towards life
imprisonment. Death sentence is ordinarily ruled out and can
only be imposed for "special reasons". As provided in Section
354 (3) CrPC. It indicates that reformation and rehabilitation
of offenders and no deterrence, are now among the foremost
objects of the administration of criminal justice in the
country. Section 354(3) CrPC is a part emerging picture of
acceptance by the legislature of the new trends in
criminology. The personality of an offender revealed by his
age, character, antecedents and other circumstances and the
tractability of the offender to reform must necessarily play
the most prominent role in determining the sentence to be
awarded. A judge has to balance the personality of the
offender with the circumstances, situations and the reactions
and choose the appropriate sentence to be imposed. The
STATE VS MANOJ ETC.//FIR NO. 346/05
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former rule that the normal punishment for murder is death
is no longer operative and it is now within the discretion of
the court to pass either the sentence prescribed in Section
302 IPC.
12. In case Bachan Singh Vs. State of Punjab, AIR
1980 SC 899 it was observed that a real and abiding
concern for the dignity of human life postulates resistance to
taking a life through law's instrumentality. The ought not to
be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed.
13. In case Machhi Singh Vs. State of Punjab, AIR
1983, SC 957 the guidelines are laid down which are to be
kept in view, considering the question whether the case
belongs to the rarest of rare category. It was observed that
the following question may be asked and answered as a test
to determine the 'rarest of rare' case in which death
sentence can be inflicted:-
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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1. Is there something uncommon
about the crime which renders
sentence of imprisonment for
life inadequate and calls for
death sentence?
2. Are the circumstances of the
crime such that there is no
alternative but to impose
death sentence even after
according maximum
weightage to the mitigating
circumstances which speak in
favour of the offender?
14. In the case of Machhi Singh (Supra) the
guidelines were culled out which are to be applied to the
facts of each individual case where the question of imposition
of death sentence arises. The following preposition emerges
from the Bachan Singh's case :-
i. The extreme penalty of death need not
be inflicted except in gravest cases of
extreme culpability.
ii. Before opting for the death penalty the
circumstances of the 'offender' also
required to be taken into consideration
along with the circumstances of the
'crime'.
iii. Life imprisonment is the rule and death
sentence is an exception. Death
sentence must be imposed only when
life imprisonment appears to be an
altogether inadequate punishment
having regard to the relevant
circumstances of the crime, and
STATE VS MANOJ ETC.//FIR NO. 346/05
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provided, and only provided, the option
to impose sentence of imprisonment
for life cannot be conscientiously
exercised having regard to the nature
and circumstances of the crime and all
the relevant circumstances.
iv. A balance sheet of aggravating and
mitigating circumstances has to be
drawn up and in doing so the mitigating
circumstances have to be accorded full
weightage and just balance has to be
struck between the aggravating and
the mitigating circumstances before
the option is exercised.
15. In case Bablu @ Mubarak Hussain Vs. State of
Rajasthan, AIR 2007 SC 697 the Supreme Court observed
as under :-
"In rarest of rare cases when collective conscience
of community is so shocked that it will except the
holders of the judicial power center to inflict death
penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death
penalty, death sentence can be awarded. The
community may entertain such sentiment in the
following circumstances :-
i. When the murder is committed, in an
extremely brutal, grotesque, diabolical,
revolting and dastardly manner so as to
arouse intense and extreme indignation
of the community.
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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ii. When the murder is committed for a
motive which evinces total depravity and
meanness; e.g murder by hired assassin
for money or reward or a cold-blooded
murder for gains of a person vis-a-vis
whom the murderer is in a dominating
position or in a position of trust, or
murder is committed in a course for
betrayal of the motherland.
iii. When murder of a member of a
Scheduled Caste or minority community
etc., is committed not for personal
reasons but in circumstances which
arouse social wrath, of in cases of 'bride
burning' or 'dowry deaths' or when
murder is committed in order to remarry
for the sake of extracting dowry once
again or to marry another woman on
account of infatuation.
iv. When the crime is enormous in
proportion. For instance when multiple
murders, say of all or almost all the
members of a family or a large number of
persons of a particular caste, community
or locality, are committed.
v. When the victim of murder is an innocent
child, or helpless woman or old or infirm
person or a person vis-a-vis whom the
murder is in a dominating position or a
public figure generally loved and
respected by the community."
16. On the basis of above observations and discussion
in the present facts and circumstances of the case, the
present case does not fall within the category of "rarest of
STATE VS MANOJ ETC.//FIR NO. 346/05
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the rare category", as such, the death penalty cannot be
awarded to the three convicts. The latest decision of the
Hon'ble Supreme Court of India pertaining to imposition of
sentence in the case of Santosh Kumar Satishbhushan
Bariya vs. State of Maharashtra, decided on
13.05.2009. Another important facet pertaining to
sentencing the procedure being considered. Imprisonment
for life as a penalty entails that the convicts must remain in
the imprisonment till his life i.e would never to set free from
the jail. However, the code of Criminal Procedure provides
power to executive under Section 433 CrPC which subject to
the restrictions provided by Section 433 CrPC. According to
which a convict sentenced to imprisonment for life for whose
death sentence has been commuted to imprisonment for life
cannot be released for prison unless served at least 14 years
of imprisonment. The Hon'ble Supreme Court of India in the
case of Swami Shraddhanand vs. State Karnataka 2008
(13) SCC 767 imposed upon State the condition that
accused would not be entitled to any commutation or
premature release.
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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17. In the present case, all the three convicts in
furtherance of their common object of conspiracy were
involved in gruesome murder of Sandeep @ Sonu after
kidnapping. They also demanded ransom of Rs. 5 lacs and
extended threat that they will sell the kidney if ransom is not
paid. The dead body was recovered from Dharuhera,
Haryana after eight days and evidence was also destroyed by
them.
18. Hence keeping in view the above stated
circumstances, I sentence all the three convicts to undergo
Rigorous Imprisonment for life each along with fine of
Rs. 5000/- (five thousand) each, in default of payment
of fine, the convicts shall further undergo simple
imprisonment for a period of 01 year (one year) each
under Section 120-B IPC.
19. All the three convicts are further sentenced to
undergo Rigorous Imprisonment for life each along
with fine of Rs. 5000/- (five thousand) each, in default
STATE VS MANOJ ETC.//FIR NO. 346/05
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of payment of fine, the convicts shall further undergo
simple imprisonment for a period of 01 year (one
year) each under Section 364 IPC r/w Section 120-B
IPC.
20. All the three convicts are also sentenced to
undergo Rigorous Imprisonment for life each along
with fine of Rs. 5000/- (five thousand) each, in default
of payment of fine, the convicts shall further undergo
simple imprisonment for a period of 01 year (one
year) each under Section 364-A IPC r/w Section 120-B
IPC.
21. All the three convicts are further sentenced to
undergo Rigorous Imprisonment for life each along
with fine of Rs. 5000/- (five thousand) each, in default
of payment of fine, the convicts shall further undergo
simple imprisonment for a period of 01 year (one
year) each under Section 302 IPC r/w Section 120-B
IPC.
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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22. All the three convicts are further sentenced to
undergo Rigorous Imprisonment for a period of 13
years (thirteen) each along with fine of Rs. 5000/-
(five thousand) each, in default of payment of fine,
the convicts shall further undergo simple
imprisonment for a period of 01 year (one year) each
under Section 201 IPC r/w Section 120-B IPC.
18. All these sentences awarded to all three
convicts shall run concurrently. Benefit of section 428
Cr.P.C. Shall be given to the convicts.
19. It is made clear that in view of the law laid down
by Hon'ble Supreme Court of India in the case of Swami
Shraddhanand (Supra) the appropriate sentence of
imprisonment of life is that the three convicts namely Manoj,
Chaman Lal and Manish Kumar have to undergo actual
sentence of 40 years and grant of remission shall not
be considered till the actual sentence of 40 years.
STATE VS MANOJ ETC.//FIR NO. 346/05
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Copy of judgment and that of order on sentence be provided
to the three convicts, free of cost, today itself. Sessions file
be consigned to record room.
Announced in the open court (SANJAY KUMAR)
today i.e. 16.03.2011 ASJ-01 (NW),ROHINI
COURTS: DELHI
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No.21/2009
FIR No. 346/05
PS : NANGLOI
U/s. 302/364/364-A/365/
201/120-B/34 IPC
STATE
VERSUS
1. MANOJ KUMAR S/O VIJAY SNGH
R/O H. NO. 36, EXTN. 4, NANGLOI,
DELHI.
2. CHAMAN LAL @ KAKE S/O HARI RAM
R/O. 34B, EXTN. 4, NANGLOI
DEL4HI.
3. MANISH KUMAR @ MONU S/O RATTAN LAL
R/O. D-3, SHIV RAM PARK, NANGLOI
DELHI.
Date of Institution : 11.07.2005
Date of receipt of case in this court : 31.07.2009
Arguments heard On : 04.03.2011
Judgment Announced On : 11.03.2011
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI PRADEEP RANA, COUNSEL FOR ACCUSED MANOJ
KUMAR & CHAMAN LAL.
SH. SANDEEP SRIVASTAVA, COUNSEL FOR ACCUSED
MANISH KUMAR.
STATE VS MANOJ ETC.//FIR NO. 346/05
PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
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JUDGMENT
1. The factual matrix of the case is that Balbir Singh s/o Kishan Chand on 08.04.2005 informed the police station Nangloi regarding missing of his son Sandeep Kumar @ Sonu and accordingly DD no. 9-A was recorded and a message was sent through office of the DCP West District Delhi. A form of missing person was also filled up. On 11.04.2005 SI S. S. Sandhu recorded statement of Balbir Singh. According to his statement his son Sandeep Kumar @ Sonu (deceased) aged 19 years left the house in the evening around at 6.00 pm on 07.04.2005 by saying that he is returning within 10 minutes thereafter he did not return. All efforts were made to trace him. Sandeep Kumar @ Sonu (deceased) was carrying his mobile phone no. 9868202872. It was also found switched off. At this complaint FIR was registered u/s 365 IPC. On 11.04.2005, 13.04.2005 and 14.04.2005 Balbir Singh received ransom call of Rs. 5 lacs on his mobile phone of Reliance having number 9313944225. Accordingly Section 364-A IPC was added in the FIR on 14.04.2005.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :22:
2. The investigation of the case was transferred to Insp. B. R. Mann. Mobile phone calls were examined. The call details of mobile no. 9868202872 of deceased Sandeep Kumar @ Sonu and his hand set mobile make Nokia 1100 having IMEI no. 3525240042539505 were collected. As per call details it came to knowledge that one Hutch sim number 9811627626 is operational in the Nokia 1100 mobile set having IMEI no. 3525240042539505. The address of this sim number was found to be D-3 Shiv Ram Park, Nangloi. The same was searched and on 15.04.2005 accused Manish Kumar @ Monu on the ground of suspicion was apprehended and interrogated. After conducting his search one Nokia mobile 1100 was recovered and on checking it was having sim number 9811627626 of Hutch. A purse was also found containing sim card and on checking it was found to have number 9868202872 and one Nokia phone 1100 having IMEI number 3525240042539505 belonging to deceased Sandeep Kumar @ Sonu was also found. After detailed interrogation accused Manish Kumar @ Monu made a disclosure statement and disclosed the names of his associates as Manoj Kumar & STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :23: Chaman Lal @ Kake. Accordingly they were also arrested and they both made disclosure statement. As per the disclosure statements of the accused persons they all three on 07.04.2005 called Sandeep Kumar @ Sonu and on his motorcycle Hero Honda Karizma took him to Rewari, Haryana and on the way at highway near khandars, murdered him with the help of ladies bra. They had also taken out his shoes, mobile phone and other clothes so that his body could not be identified. Thereafter body was thrown in a room. In order to destroy its identity, they hit the face of body with small brick piece. The clothes and shoes were taken by accused Chaman Lal and mobile phone was handed over to accused Manish Kumar. Accused Manoj Kumar and Chunni Lal @ Kake instructed accused Manish Kumar that he should call Balbir Singh father of deceased and demand ransom.
3. Accused Manoj Kumar and Chaman Lal disclosed that they can get recover the dead body by pointing out the place. Insp. B. R. Mann along with Balbir Singh complainant, Ranbir Singh his brother and one public person Lekhi Ram STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :24: went to Jaipur highway, Dharuhera, Rewari, Haryana Khandars of Irrigation Department where on the pointing out of accused Manoj Kumar and Chaman Lal got recovered dead body of deceased Sandeep Kumar @ Sonu. It was identified by complainant Balbir Singh and his relative Ranbir Singh. The local police i.e. SHO police station Dharuhera was also informed. There after SI Aneshi Lal along with its staff reached there and conducted inquest proceedings u/s 174 CrPC. All the memos, site plan and recovery of dead body memo was prepared. Photographs of the body were also taken. A piece of brick was also seized at the pointing out of accused Manoj Kumar. Thereafter the post mortem on the body of deceased was conducted at the hospital. Thereafter accused Chaman Lal got recovered clothes and shoes of the deceased which were seized and on the pointing out of accused Manoj motorcycle Hero Honda Karizma having registration no. DL 4SA U 3578 was also seized.
4. On 01.05.2005 the post mortem report, inquest papers and exhibits were collected. The doctor opined that STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :25: cause of death is strangulation by ligature and time since death was 10 days. During investigation SI Satish Kumar took draftsman Insp. Devender Singh for preparation of scaled site plan. The call details of complainant's phone of sim no. 9313944225, call details of phone of deceased Sandeep Kumar @ Sonu having no. 9868202872 and call details of accused Manish Kumar's mobile having no. 9811627626 were collected and were seized. Statement of all the witnesses was recorded. On 12.05.2005 Insp. B. R. Mann was transferred and investigation was done by Insp. Harpal Singh, SHO police station Nangloi. On 05.07.07 Dr. S. K. Dhatterwal from PGIMS, Rohtak's opinion was collected regarding ligature material i.e. bra. After completion of investigation challan u/s 302/364-A/365/201/120-B/34 for trial against accused Manoj Kumar, Chaman Lal @ Kake and Manish Kumar @ Monu was filed in the court.
5. Ld. MM after compliance of section 207 CrPC committed the case to the court of Sessions.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :26:
6. Vide order dt. 09.03.07 Sh. Arun Kumar Arya, Ld. ASJ framed the charge against all the three accused persons for trial of offences punishable u/s 120-B IPC/364 IPC r/w Section 120-B IPC/364-A IPC r/w 120-B/302 IPC r/w 120-B IPC as well as u/s 201 IPC r/w 120-B IPC. Separate charge for trial of offence punishable u/s 411 IPC was framed against accused Manish Kumar. All the three accused persons pleaded not guilty and claimed trial.
7. Prosecution in support of its case has examined the following witnesses :
Public Witnesses
1. PW1 Balbir Singh - Complainant and father of deceased.
2. PW4 Sunil Kumar - Clothes, shoes of deceased recovered from his godown and motor cycle.
3. PW5 Surat Singh - Documents of deceased mobile phone.
4. PW7 Lekhi Ram Verma - Recovery and investigation witness.
5. PW8 Raghbir Singh - recovery and investigation witness.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :27:
6. PW12 P.K. Madan - Photographer.
7. PW23 Ajay Kumar Mobile phone witnesses
1. PW10 Rakesh Soni - M.T.N.L.
2. PW11 Col. A.K. Sachdeva - Reliance
3. PW17 Anuj Bhatia - Hutch (Vodaphone) Police witnesses
1. PW2 Ct. Satpal - brought pullandas from PS Dharuhera to PS Nangloi.
2. PW3 HC Suresh - Proved DD Ex. PW3/A & FIR Ex.
PW 3/B.
3. PW13 Insp. Devender - Proved site plan. Singh (retd.)
4. PW14 HC Balwan - Proved seizure of call details Ex.
Singh PW14/A, PW14/B and PW14/C. 5. PW16 HC Virender - MHC (M) PS Nangloi.
Police witnesses from PS Daruhera, Haryana
1. PW9 ASI Nand Lal - Proved DD no. 12A at PS Dharuhera and reached the place of recovery of body.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :28:
2. PW15 SI Anshi Lal - Reached spot of recovery of (retd.) dead body from PS Dharuhera.
3. PW18 ASI Bhoj Raj - MHC (M) PS Dharuhera. ( retd.) Medical Witnesses PW6 Dr.S.K.Dhattarwal - Conducted postmortem Police witnesses (Investigation)
1. PW19 SI Satish Kumar
2. PW20 SI S. S. Sandhu
3. PW21 ACP Harpal Singh
4. PW22 Insp. B. R. Mann Defence Witnesses
1. DW1 HC Surender
2. DW2 B.K. Sharma
8. Thereafter Sh. P. K. Verma, Ld. APP for the state vide his statement dated 11.2005.2010 closed the prosecution evidence.
9. Statement of all three accused persons u/s 313 CrPC was recorded in which accused persons pleaded STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :29: claimed innocence and stated that they have been falsely implicated in this case. All three accused persons wished to lead evidence in their defence.
10. In their defence, accused persons examined DW1 HC Surender from PS Dharuhera, Distt. Rewari, Haryana who has proved the DD No. 12 dt. 15.04.2005 which was lodged at the instance of Insp. B. R. Mann, the then SHO, PS Nangloi, Delhi and copy of same is Ex. DW1/A. In his cross examination by Ld. APP for the State, he stated that DD No. 16 dt. 15.04.2005 Ex. DW1/B, DD no. 25 dt. 15/16.04.2005 Ex. DW1/C, DD No. 37 dt. 17.04.2005 Ex. DW1/D, DD No. 54 dt. 19.04.2005 Ex. DW1/E and DD no. 45 dt. 20.04.2005 Ex. DW1/F are all concerned with the present case.
11. DW2 B. K. Sharma, Supdt. Engineer, Irrigation Dept. Rewari, Harayan has proved the RTI application of accused Manoj Ex. DW2/A sent by him from Tihar jail which was accordingly replied vide letter dt. 27.01.10 Ex. DW2/B. He also proved the copy of attendance register Ex. DW2/C STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :30: and copy of TA bill of PS Lamba JE Incharge Ex. DW2/D. In his cross examination by Ld. APP for the state he has denied that the attendance register has been manipulated by the concerned official of the dept., at the instance of accused or that reply dt. 27.01.2010 is not correct or proper.
12. I have heard Sh. P. K. Verma, Ld. APP for the State and Sh. Pradeep Rana, counsel for accused Manoj and Chaman Lal and Sh. Sandeep Srivastava, counsel for accused Manish. I have also perused the entire record.
13. The present case is based upon circumstantial evidence. The principle of law laid down by the Apex Court is as follows. The Supreme Court in the case of Hanumant Govind Nargundkar Vs. State of M. P. AIR 1952 SC 343 observed as under : -
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be dawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :31: of the accused. Again, the circumstances should be such as to exclude every hypothesis by the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
The Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SC 1622 held that onus was on prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of Supreme Court before conviction can be based on circumstantial evidence must be fully established.
The Supreme Court in the case of State of U.P. Vs. Ashok Kumar Srivastava 1992 Crl. L.J. 1104 it was pointed out in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences the one in favour of the accused must be accepted. It was also pointed out that the circumstance relied upon must be STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :32: found to have been fully established and the cumulative effect of all the facts so established constant only with the hypothesis of guilt.
The Supreme Court in the case of C. Chenga Reddy Vs. State of A. P. 1996 SC 193, it has been observed that :
"in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In a recent case, Supreme Court reiterated the principle of the circumstantial evidence, in the case of Manunath Chennabasapa Madalli Vs. State of Karnataka AIR 2007 SC 2080.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :33:
14. According to the principles laid down by Apex Court, a case resting upon the circumstantial evidence must satisfy the following test : -
1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
15. The prosecution in the present case has to prove the following chain of circumstances against the accused persons :-
1. Deceased Sandeep Kumar @ Sonu was missing on 07.04.2005 and at that time he was wearing one STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.
:34: cream colour pant, belt, one vest, one blue colour T- shirt, one pair of sport shoes and also having one mobile phone Nokia 1100 IMEI No. 3525240042539505 and SIM No.9868202872 with him.
2. The complainant PW1 Balbir Singh received ransom call from his deceased son Sandeep Kumar @ Sonu's mobile number 9868202872 having handset Nokia 1100 having IMEI no. 3525240042539505.
3. The mobile phone of deceased Sandeep Kumar @ Sonu having number 9868202872 Nokia 1100, complainant Balbir Singh's mobile phone number 9313944225, Sim card of Hutch mobile company having number 9811627626 belonging to Rattan Lal and call details for the period 07.04.2005 to 15.04.2005.
4. Recovery of Nokia handset 1100 having IMEI no. 3525240042539505 belonging to deceased Sandeep Kumar @ Sonu and sim card of dolphin having number 9868202872 and sim card of Rattan Lal, father of accused Manish having no. 9811627626.
5. Recovery of dead body of deceased Sandeep Kumar @ Sonu from Khandars of irrigation department at Dharuhera at the instance of accused Manoj and Chaman Lal.
6. Recovery of pair of shoes Ex.P2, Shirt Ex.P3, Pant Ex.P4, vest Ex.P5 and belt Ex.P6 of deceased at the instance of Chaman Lal from the godown of Sunil.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :35:
7. Recovery of motorcycle Ex.P1 at the instance of accused Manoj, which was used in the commission of offence.
8. Medical evidence.
9. Conspiracy for kidnapping for ransom and murder of deceased Sandeep Kumar @ Sonu and disappearance of evidence and dead body.
Circumstance No. 1
16. Prosecution has to prove first circumstance that deceased Sandeep Kumar @ Sonu was missing since 07.04.2005 and at that time he was wearing one cream clolour pant having chain at the bottom, belt, one vests, one blue colour and sports shoes. He was also having one mobile phone Nokia 1100 with number 9868202872 and IMEI No. 3525240042539505.
17. Prosecution examined PW1 Balbir Singh, complainant who deposed that on 07.04.2005 at about 5.00/6.00 p.m. his son Sandeep Kumar @ Sonu had gone out of the house saying that he would come within ten minutes but he did not return. PW1 went to trace out his son STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :36: throughout the night but he could not be traced. On 08.04.2005, he had lodged missing report Ex.PW1/1. He also deposed that his son was having mobile no. 9868202872 and calls were made at this number but found switched off.
18. PW20 SI S.S. Sandhu is the police official who recorded the missing report on 08.04.2005. He proved DD No.9-A Ex.PW-10/A. He also proved that WT message Mark- 20/B was also sent on wireless and also prepared missing person form Mark-20/C. The Ex.PW20/A specifically mentioned the clothes which were worn by deceased at the time of missing on 07.04.2005 as stated by PW1 Balbir Singh i.e. one cream colour pant having chain at the bottom, one blue colour T shirt, one vests, one belt and sports shoes. It is further mentioned that deceased was having mobile phone bearing no. 9868202872. On this basis another DD entry was also registered. In the cross-examination, no question or suggestion on Ex.PW20/A which mentions about the pair of shoes worn by deceased at the time of missing.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :37:
19. PW3 HC Suresh proved DD entry at serial no. 9 Ex.PW3/A dated 08.04.2005. This DD entry is also the same fact which was recorded in Ex.PW20/A. No cross- examination made in respect of DD entry Ex.PW3/A mentioning about the sports shoes.
20. Ld. defence counsels raised plea that as per the recovery memo Ex.PW1/F sports shoes with RELAXO mark recovered on 15.04.2005 alleged to be belonging to deceased but the police documents show that deceased was wearing blue colour chappal in feet as per wireless message circulated by the police. It is contended that prosecution failed to prove that deceased was wearing sports shoes and also fact that how shoes were recovered when deceased was wearing blue colour chappal. I have gone through the record as explained hereinabove that according to PW1 Balbir Singh, father of the deceased that on 08.04.2005 when missing report Ex.PW20/A was lodged by him, he mentioned that his son was wearing supports shoes and same proved on the basis of Ex.PW20/A. Ld. defence counsel in his cross-
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :38: examination on the aspect of wearing of chappal by deceased at the time of missing report and recovery of sports shoes did not put any question in respect of missing report Ex.PW1/A mentioning blue colour chappal not sports shoes. DD No. 9-A as well as Ex.PW3/A another DD recorded on same day. The arguments of defence counsel is based on a message circulated by SI S.S. Sandhu Mark-20/B which mentioned blue colour chappal. It seems to be an error committed by PW20 SI S.S. Sandhu while writing this message or it seems that the police official who had written this message has not gone through the above said DD No.9-A Ex.PW20/A and DD No.9-A which specifically mentions that deceased was wearing sports shoes. I find no substance in plea of defence counsel that as per the prosecution case deceased was wearing blue colour chappal not sports shoes. Circumstance relating to mobile make Nokia 1100
21. The deceased as per PW1 Balbir Singh was having one mobile phone bearing no. 9868202872. PW10 Rakesh Soni, Nodal Officer, MTNL proved documents Ex.PW10/A in STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :39: respect of ownership of above said number, the calls details Ex.PW10/A and Ex.PW10/C. Ex.PW10/A proved that the above said number 9868202872 belongs to PW1 Balbir Singh, father of the deceased. As per call details Ex.PW10/C taken by police, it was continuously in operation till from 30.03.2005 to 07.04.2005. However, thereafter, there is a gap of four days of next call.
22. Another witness examined by prosecution PW5 Surat Singh proved that on 08.06.2004, the mobile Nokia 1100 IMEI No. 352524004253954 purchased by deceased for Rs.4,000/- as per bill Ex.PW5/A. He also proved Insurance Certificate Ex.PW5/B.
23. On the basis of above observations and discussion, circumstance no. 1 is proved beyond reasonable doubt that at the time of missing on 07.04.2005 deceased Sandip Kumar @ Sonu was wearing cream colour pant having chain at the bottom, one belt, one vests, one blue colour T shirt and one pair of sports shoes and one mobile Nokia 1100 bearing no. 9868202872.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :40: Circumstance No. 2
24. PW1 Balbir Singh had received ransom call at his mobile no.9313944225 from the mobile used by his deceased son Sandeep Kumar @ Sonu 9868202872, Nokia 1100 having IMEI No. 352524004253954. PW1 Balbir Singh testified that he had received telephone call at his mobile no. 9313944225 on 11.04.2005 demanding Rs. 5 Lacs. On 13.04.2005, he again received a telephone call demanding Rs.5 Lacs in case not paid then kidney of his son would be sold. On 14.04.2005, he again received a telephone call to pay Rs.5 Lacs as per instructions of caller's boss. Thereafter on the same day again a call was received stating that if Rs.5 Lacs not paid then kidney of his would be sold and no more call would be made as per instructions of caller's boss. During cross-examination both defence counsels did not put any question or suggestion regarding the ransom call received by PW1 Balbir Singh on 11th , 13th and 14th April, 2005 from the mobile of his deceased son.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :41:
25. Prosecution further examined PW11 Col.A.K. Sachdeva, Nodal Officer from Reliance who proved ownership record of above said mobile no.9313944225 of PW1 Balbir Singh and call details from 06.04.2005 to 10.04.2005 Ex.PW11/B. In cross-examination by defence counsel PW11 Col. A.K. Sachdeva explained all the columns of details of Ex.PW11/B which runs in three pages.
26. Now let us analyse the call details Ex.PW11/B of the relevant dates. The call details of Ex.PW11/B dated 11.04.2005 shows that on this day two calls were received from mobile no. 9868202872. Thereafter, on 13.04.2005 two calls were received and on 14.04.2005 as well as two calls were received by PW1 Balbir Singh on his mobile from the number of his deceased son. The corresponding call details of the phone of deceased Ex.PW10/C further corroborates this fact that the number of deceased was used to call to complainant PW1 on 11th April, 13th April and 14th April, 2005. It is pertinent to mention here that the tower in column number Z-10 Ex.11/B denotes location of the tower and all six calls were made from same place.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :42:
27. It is pertinent to mention here that in comparing and analysing Ex.PW11/B and Ex.PW10/C, it established that both contain the exact time of making and receiving of the calls on all the three days i.e. 11th April, 13th April and 14th April, 2005. The deceased was having Nokia set 1100 having IMEI No. 352524004253954 is proved on the basis of bill Ex.PW5/A proved by PW5 Surat Singh which clearly mentions the IMEI No.352524004253954. On the basis of above observations and discussion, prosecution established circumstance no. 2.
Circumstance No.3
28. The call details brought on record by the prosecution are Ex. PW10/A, PW10/B and PW10/C. PW10 Sh. Rakesh Soni from MTNL has proved the details of mobile phone having number 9868202872 belongs to PW1 Balbir Singh, father of deceased Sandeep Kumar @ Sonu. PW5 Surat Singh has proved that Nokia 1100 mobile set having IMEI no. 3525240042539505 was purchased by deceased Sandeep Kumar @ Sonu on 08.07.04 vide receipt Ex. PW 5/A and insurance card Ex. PW 5/B. According to the call details STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :43: Ex.PW10/C on 11.04.2005 two calls were made on 9313944225 sim number of PW1 Balbir Singh, on 13.04.2005 two calls were made again on the same number and on 14.4.2005 as well two calls were made on this number. It establishes that from the sim card in possession of deceased, the calls were made to the phone of PW1 Balbir Singh. PW11 Col. A. K. Sachdev of Reliance proved the call details of the period 06.04.2005 to 16.04.2005 Ex. PW11/A and PW11/B. This number belongs to PW1 Balbir Singh, complainant and its call details is Ex.PW11/B. It corresponds to and match with the call details Ex. PW10/C of deceased mobile. It establishes that from the mobile number of deceased Sandeep Kumar @ Sonu, calls were made to the mobile number of PW1 Balbir Singh on 11th, 13th and 14th April, 2005. PW17 Anuj Bhatia from Hutch proved the call details of mobile no. 9811627626 belonging to Rattan Lal, father of accused Manish. According to Ex. PW17/B this mobile number remained operated in mobile set having IMEI no. 3525460076221106. That portion is marked as A to A in Ex. PW17/B. On 09.04.2005 this number remained operated in STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :44: mobile set having IMEI no. 3525240042539505 till 14.04.2005 as per portion B to B on Ex. PW17/B. It establishes that from the period 09.04.2005 to 14.04.2005 the sim no. 9811627626 was used in handset having IMEI no. 3525240042539505. The mobile Nokia 1100 Ex. P1 which was produced in the court is having same IMEI number. This belongs to decease Sandeep Kumar @ Sonu. Call details Ex. PW10/C of the deceased Sandeep Kumar @ Sonu, PW11/B of the complainant Balbir Singh and Ex. PW17/B establishes that during the period 09.04.2005 to 14.04.2005 these three numbers remained connected for making and receiving calls. According PW17 Anuj Bhatia, mobile number 9811627626 belongs to Rattan Lal, father of accused Manish @ Monu, having residential address D-3, Shiv Ram Prak, Nangloi.
29. Another important aspect established on the basis of these call details is that during the period 09.04.2005 to 14.04.2005 as per Ex.PW17/B, the towers from which the calls were routed were situated at Nangloi and Karol Bagh area. It is pertinent to mention here that another witness of STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :45: prosecution PW23 Ajay Kumar established that during the above said period accused Manish was using mobile no. 9811627626.
30. Now coming to Ex. PW20/F, the call details of IMEI no. 3525240042539505 from 09.04.2005 to 14.04.2005 i.e. Ex. PW20/F also establishes that the mobile number 9811627626 was used in mobile handset having IMEI no. 3525240042539505. PW17 Anuj Bhatia has proved that Ex. PW20/F belongs to Hutch.
31. In order to understand the relations of all the call details which were collected during investigation we have to read Ex. PW20/F call details of mobile no. 9811627626 which was used in mobile handset having IMEI no. 3525240042539505 as well as of deceased Ex. PW17/B call details of mobile of accused Manish Kumar which was in the name of his father Rattan Lal which was used in the month of April, 2005. Perusal of the call details Ex. PW20/F and PW17/B correspond and match with each other.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :46:
32. Ld. defence counsels Sh. Sandeep Srivastava and Sh. Pradeep Rana laid maximum emphasis on the witnesses connected with the mobile calls details and the call details collected during investigation. Written synopsis also filed on behalf of accused Manish. Ld. defence counsel vehemently assailed Ex.PW20/F call details of IMEI No. 3525240042539505. It is pointed out that at the time of final arguments an application under section 311 Cr.P.C filed by the State. The document Ex.PW20/F was proved by the prosecution to fill up the lacunae. It is pertinent to mention here that the application of prosecution under section 311 Cr.P.C. allowed and thereafter accused Manoj and Chaman preferred a revision before Hon'ble High Court. The revision petition was dismissed by Hon'ble Mr. Justice S.N. Dhingra in limine vide order dated 11.11.2010. Now the grievance of accused persons set at rest by High Court. It is pointed out that call details as mentioned in Ex.PW20/F obtained for the period from 01.03.2005 till 15.04.2005 but it was obtained on 14.04.2005. Ex.PW20/F also shows that from 01.03.2005 to STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :47: 07.02.2005 the above said IMEI number used by other sim number 9899776612 but as per testimony of PW5 Surat Singh it was purchased in July, 2004. Ex.PW20/F further shows that a call was made from this number to deceased Sandeep's number 9868202872. The call details suggests that deceased was not carrying mobile at the time when he was missing as per prosecution case and the document proved by PW5 Surat Singh are also doubtful. There is no call details on record that between 07.03.2005 till 09.04.2005. The call details comparison of Ex.PW20/F and Ex.PW10/C shows that on 30.03.2005, 04.04.2005, 06.04.2005 and 07.04.2005 IMEI No. 3525240042539505 was used by deceased. Ex.PW20/F is computer generated document and can be created and modified as during cross-examination DX-1, DX-2 and DX-3 similar documents were marked. Ex.10/C also shows that no call was made from March, 30.03.2005 till 11.04.2005 from the sim of deceased to his father PW1 Balbir Singh' mobile. According to PW10 Rakesh Soni himself took out Ex.PW10/A, Ex.PW10/B and Ex.PW10/C which is not as per legal rules and procedure.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :48:
33. It is further submitted that Ex.PW17/B the call details pertaining to the alleged recovered Hutch sim no. 9811627626 belonging to accused Manish shows that on 14.04.2005 at 17.59.40 hours was used in another IMEI No. 3507711039677112. Although this document shows call from 01.04.2005 to 12.05.2005 but there is no detail after 14.04.2005. It also shows that from 02.04.2005 to 06.04.2005 sim number 9811627626 was being used in IMEI No.3526460076221106. From 06.04.2005 till 09.04.2005 it was being used in IMEI No. 3525240042539505. There is a mystery about these two IMEI numbers. Therefore, these calls details are not trustworthy. Ex.PW11/B the call details of sim number 9313944225 of PW1 Balbir Singh shows that no call was made by his deceased son to him from 06.04.2005 till 11.04.2005. There are blanks in the call details record Ex.PW11/B from 15.04.2005 to 16.04.2005. It is submitted Ex.PW20/F, PW10/A, Ex.PW10/B and Ex.PW10/C and Ex.PW17/B are not admissible evidence as per Section 65-B of Indian Evidence Act. There is no certification of STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :49: issuance and nobody owned Ex.PW20/F. Ld. defence counsel relied on the judgments in the case of State v. Mohd. Afzal
- 2003 (IV) AD (Cr.) 205, Devesh Kumar vs. State - Cr. Appeal No.793/2004 and State vs. Navjot Sandhu @ Afsan Guru - 2005 Crl.L.J. 3950 (SC).
34. I have given thoughtful consideration to the submissions of ld. defence counsels. Ld. defence counsels assailed the legal admissibility as well as legal sanctity of call details proved by prosecution as discussed hereinabove in details. I have gone through the judgments relied by ld. counsel for the defence. The most important document is Ex.PW20/F. It is the call detail of IMEI No. 3525240042539505 which is collected by the police at the initial stage of investigation when PW1 Balbir Singh started told about receiving ransom calls. PW20 SI S.S. Sandhu explained that he collected call details from the office of ACP where internet facility was opted. EX.PW20/F belongs to Hutchison Cellular (now Vodafone) at the relevant time proved by PW17 Anuj Bhatia, Nodal Officer. He also STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :50: explained this document in detail. He also explained mobile numbers mentioned in this document and each column denotes what details. He also explained the ownership of both the sim numbers shown in this document. Although defence counsels produced a computer made documents DX- 1, DX-2 and DX-3 but when the Nodal Officer of Hutch Company categorically deposed on the basis of Company record and proved all the details so there is no question of manipulating or manufacturing such documents by the police. All the details came from Hutchison Cellular Company. Another important aspect that Ex.PW20/F was collected at the initial stage of investigation and in these circumstances there is no chance of collecting call details Ex.PW20/F after arrest of accused Manish.
35. Now comes the legal admissibility of Ex.PW20/F, Ex.PW10/A, Ex.PW10/B and Ex.PW10/C and specially Ex.PW17/B. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :51: document can also be laid under section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidnece of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerized operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of print out. Sub-section (1) of Section 65B makes admissible without further proof,, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus compliance with Sub- section (1) and (2) of Section 65B is enough to make admissible and prove electronic records. Now applying this principle in the present facts and circumstances of the case the nodal officers themselves appeared in witness box and on the basis of record of MTNL, Reliane and Hutchison they proved all the call details. Full opportunity was granted to defence for cross-examination. During the course of the STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :52: arguments ld. defence counsel also pointed out the collection of these calls details during the cross-examination of PW-19 SI Satish Kumar. Although there is some discrepancies between the time of collection and time of collection answered in the cross-examination by PW19 SI Satish Kumar after about 5 years but it does not affect the authenticity of all these calls details collected during the investigation. Ld. defence counsel also raised the arguments that IMEI number of deceased mobile set is not tallying with the IMEI number recorded in the call details. The controversy pertains to the last digit recorded in the call record. This controversy has been settled in the case of State vs. Navjot Sandhu @ Afsan Guru - 2005 Crl. L.J. - 3950. In the present case, PW17 Anuj Bhatia explained that while giving details extra digit are included in the IMEI according to GSM specifications applicable for transmission. Therefore, the IEMI number 3525240042539505 as mentioned in the all the call details is the same as mentioned in the recovered mobile set Nokia 1100 during the investigation as mentioned in the body of mobile phone. On the basis of above observations, STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :53: prosecution proved that the call details Ex.PW20/F, Ex.PW10/A, Ex.PW10/B and Ex.PW10/C and Ex.PW17/A, Ex.PW17/B and Ex.PW17/C are admissible documents and proved as per Section 65-B of Indian Evidence Act.
36. Although hereinabove detailed discussion, the call details Ex.PW20/F and Ex.PW17/B, all the details were specially from 09.04.2005 to 14.04.2005 established beyond reasonable doubt that the mobile set having IMEI No. 3525240042539505 has been used with sim number 9868202872. The call details Ex.PW17/B further established that sim number 9811627626 belongs to Rattan Lal, father of accused Manish. Ex.PW10/A established that sim number 9868202872 belongs to PW1 Balbir Singh, father of deceased and call details Ex.PW10/C. The combined reading and analysis of Ex.PW17/B call record, Ex.PW10/C call record and Ex.PW20/F call record of IMEI no. 3525240042539505 established beyond reasonable doubt that mobile set Nokia 1100 having above said IMEI number was used by sim number 9811627626 and 9868202872 at very crucial stage STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :54: and period from 09.04.2005 to 14.04.2005. Alternatively the mobile handset Nokia 1100 set has been used with two sim cards one belonging to father of deceased PW1 Balbir Singh from 09.04.2005 when deceased went missing and other is of accused Manish's father and mobile set having above IMEI number of deceased. I do not find any infirmity, legality or any manipulation of creation of any false document by the investigating agency regarding the above discussed all call details record as highlighted and pointed out by ld. defence counsels. Hence, on the above discussion and observations, prosecution proved the legality and admissibility of call details Ex.20/F, Ex.PW10/A to Ex.PW10/C and Ex.PW17/A to Ex.PW17/C beyond reasonable doubt.
Circumstance No. 4
37. The prosecution further relied on testimony of PW19 SI Satish Kumar and PW22 Inspector B.R. Mann. Ld. defence counsel for accused Manish submitted that the entire genesis of the case based upon recovery of mobile phone make Nokia 1100 allegedly belonging to deceased Sandeep @ Sonu after tracking IMEI number. The Nokia STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :55: 1100 having IMEI No. 3525240042539505 has not been recovered from accused Manish and same has been planted. The document Ex.PW5/A and Ex.PW5/B collected regarding the mobile set by PW20 SI S.S. Sandhu which was sold on 08.07.2004. But these documents are doubtful and manufactured by the investigating agency. The investigation officer has not joined the independent witness at the time of alleged recovery of mobile. There are serious contradictions and detailed chart has been provided. PW22 Inspector B.R. Mann deposed that he knocked door by uttering words RATTAN LAL and a person introduced himself as son of Rattan Lal. At enquiry regarding Hutch sim number 9811627626, he told that it is in his father's name. But in cross-examination he deposed that he started enquiry from accused Manish. But at the first instance, no person came from inside the house. The non joining of independent witness public witness and the contradictions in the testimony of PW19 Satish Kumar and PW22 Inspector B.R. Mann raises doubt about the alleged recovery of mobile phone.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :56:
38. It is further submitted that the alleged recovery of driving licence of accused Manish which is a duplicate one and it can be got made easily from the market is also doubtful. The purse, belt and Nokia mobile phone 1100 are easily available in the market. Therefore, all the alleged articles were planted by police to implicate accused Manish.
39. I have considered the respective submissions of ld. defence counsel for accused Manish. It is admitted that the genesis of the present case lies with the recovery of Nokia 1100 mobile. The investigating agency since lodging of missing report on 08.04.2005 Ex.PW20/A started investigation. The important aspect appeared when ransom call received by PW1 Balbir Singh on 11.04.2005 from the sim which was used by deceased Sandeep having no. 9868202872. The call details Ex.PW20/F were collected of the relevant period shows the number 9811627626 as deposed by PW17 Anuj Bhatia. This belongs to Rattan Lal R/o. D-3, Shivram Park, Nangloi. It is very important that this fact is corroborated by PW23 Ajay Kumar who is neighbour of STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :57: accused Manish who is resident of Anand Parbat that mobile number 9811627626 was used by accused Manish and he used to talk to Manish on this number. As per testimony of PW19 Satish Kumar and PW22 Inspector B.R. Mann, they both on getting the information on 15.4.2005 went to D-2, Shivram Park, Nangloi. On the basis of call details of mobile number 9811627626, accused Manish was apprehended. Thereafter, he was interrogated and mobile Nokia 1100 recovered from his possession and IMEI number of that mobile matches with the IMEI number of deceased set. Sim card used by deceased of Dolphin no. 9868202872 also recovered from his possession. Handset and sim were seized.
40. PW19 SI Satish Kumar identified the recovered mobile Nokia 1100 having IMEI number 3525240042539505 Ex.PW19/1, sim card of Dolphin having no. 8991684060000431718 of mobile no. 9868202872 of deceased, Driving licence of the accused, purse Ex.PW19/3.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :58:
41. PW22 Inspector B.R. Mann in witness box corroborates the fact stated by PW19 SI Satish Kumar. He also proved recovery of mobile set Nokia 1100 having the same IMEI number as of deceased, one Dolphin sim number 9868202872 of deceased and another sim number 9811627626 of Rattan Lal, father of accused Manish. He proved the seizure of three articles along with belt and purse having the driving licence of accused Manish. He also identified the recovered mobile set Ex.PW19/1, sim number 9868202872 Ex.PW19/2, purse containing driving licence of accused Manish with Rs.800/- Ex.PW19/3. Prosecution not cited police officials who are named by PW22 Inspector B.R. Mann raided the premises of accused Manish, D-3, Shivram Park, Nangloi along with them. Their absence does not affect the prosecution case in any manner.
42. Now coming to the contradictions as highlighted by ld. defence counsel. These contradictions are showing how the police party called the person when they reached D- 3, Shiv Ram Park, Nangloi. The other highlighted STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :59: contradictions during the cross-examination are bound to happen if the person is examined after five years in the court. Non joining of any public witness does not affect the testimony of PW19 Satish Kumar and PW22 B.R. Mann. As submitted by ld. defence counsel I do not find any substance in the argument that first accused arrested, thereafter call record was manufactured and then mobile phone and duplicate driving licence to prove the identify were planted by the IO which is highly improbable. On the other hand, prosecution witnesses established beyond reasonable doubt that they investigated on the basis of call details of mobile set Nokia 1100 when ransom calls were started receiving by PW1 Balbir Singh. The mobile set Nokia 1100 is the same which was with the deceased Sandeep @ Sonu when he went missing till its recovery. The mobile phone Nokia 1100 having IMEI number 3525240042539505 produced in court during the trial, is same and tallied with Ex.PW20/F and Ex.PW17/B call records and the sim card of deceased having number 9868202872 which is in the name of deceased father PW1 Balbir Singh and Hutch sim number 9811627626 in the STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :60: name of Rattan Lal, father of accused Manish @ Monu are proved by prosecution beyond reasonable doubt. Hence, on the basis of above observations and discussion, prosecution proved circumstance no. 4 beyond reasonable doubt. Circumstance No. 5
43. The prosecution in order to prove this circumstance examined PW1 Balbir Singh, PW7 Lakhi Ram Verma, PW8 Raghbir Singh, PW19 SI Satish Kumar and PW22 Inspector B.R. Mann apart from witnesses PW9 ASI Nand Lal, PW15 retired SI Anshi Lal of Haryana Police, PS Daruhera. PW12 R.K. Madan, photographer.
44. PW1 Balbir Singh, who is the complainant of this case and also the father of deceased Sandeep Kumar @ Sonu. He has stated that on 07.04.2005 at about 5/6 pm deceased Sandeep had gone out of the house saying that he will be back in 10 minutes but he never returned. He traced his son but could not trace him and on 08.04.2005 he lodged a missing report of his son Ex. PW1/A. He has deposed that his son was having mobile no. 9868202872 and when he STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :61: called on the said number the same was found to be switched off. On 11.04.2005 he received a call from number 9313944225 and the caller demanded Rs. 5 lakh for release of his son and thereafter he handed over the invoice of his son's mobile and insurance to police and same were taken into possession vide memo Ex. PW1/B. Again on 13.04.2005 he received a call on his mobile from the mobile of his son and caller again demanded Rs. 5 lakhs and said in case the amount is not paid kidney of his son would be taken out and sold for realization of the amount. On 14.04.2005 he again received a call that he will have to pay Rs. 5 lakh in case he wants his son back but on this he requested the caller to reduce the amount and the caller replied that amount was demanded as per instructions of the boss. When he asked the caller to let him talk to his son, he was not allowed to talk. The caller also said that voice tape of his son and clothes of his son have been sent to him. On asking about as to where he was to deliver the money, the caller told him that he will inform him about the place of delivery of money.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :62:
45. PW1 has further deposed that on 15.04.2005 he was called at police station Nangloi and accused Manoj Kumar and Chaman Lal were present in the police station. Thereafter both the accused persons took the police party and him to Sabi river near Daruhera and got recovered the dead body of his son which was identified by him. Same was got photographed by investigation officer from different angles. Accused Manoj got recovered one piece of brick. Piece of brick was taken into possession vide memo Ex. PW1/C and dead body was taken into possession vide memo Ex. PW1/D. Dead body was seized vide memo Ex. PW1/E and thereafter dead body was removed to Babal Mortuary for post mortem where the doctor refused to conduct the post mortem. Thereupon the dead body was taken to PGI Rohtak where post mortem on the dead body of Sandeep @ Sonu was conducted and same was handed over to him on 16.04.2005 vide memo Ex. PW1/H. Thereafter accused Chaman Lal took the police party to Kamruddin Nagar in the godown of plastic and got recovered a plastic bag from which one cream colour pant Ex. P4 and belt Ex. P6, one vest Ex.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :63: P5, one blue colour T-shirt Ex. P3 and one pair of sport shoes Ex. P2 were found and the same were identified by him as they were worn by his son when he left the house. The same were taken into possession vide memo Ex. PW1/F. He has further deposed that on 16.04.2005 accused Manoj Kumar took the police staff to Extension 11 in a gali and got recovered on motorcycle Ex. P1 of Hero Honda Make no. DL 4SAU 3578 and same was taken into possession vide memo Ex. PW1/G.
46. In his cross examination by counsel for accused PW1 has stated that accused Chaman Lal used to reside in the back gali of his house and he and no enmity with him or his family prior to incident. He has also stated that some strips of cloth and stones were lying near the body of his son and a piece of brick was handed over to police by accused Manoj but at that time he did not notice if the same was having any blood stains or not. No public person visited the place from where body was found as it is an isolated place. He denied the suggestion that anybody would have placed STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :64: the said bag in the godown. He volunteered to add that accused Manoj had the access to the said godown as he used to work there. He further denied that nothing was recovered at the instance of accused Chaman Lal or that he signed all the papers at the police station. He has further stated in cross examination that he did not know accused Manish and he had never seen accused Manish with his deceased son Sandeep. He has further stated that he handed over receipt and bill of the mobile to investigation officer on 12.04.2005. He has denied that the dead body was visible from a distance of about 10 feet from the main gate of the place from where the dead body was recovered. He has stated that from police station they reached Dharuhera first and then reached the godown where the dead body was found. He has stated that accused persons were arrested in his presence and the place from where the body of his son was recovered was open and accessible to all. He has denied that he did not receive any threatening call or has deposed falsely.
47. PW7 Lakhi Ram Verma, has testified that on 15.04.2005 he had gone to Nangloi for some work and from STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :65: there he along with PW1 Balbir Singh joined investigation with SHO PS Nangloi Insp. B. R. Mann along with accused Manoj and Chaman Lal. He has further deposed that accused persons took them to Jaipur Highway near Sabi River bridge mod in the store of irrigation department and there accused Manoj pointed out dead body of deceased Sandeep which was having only underwear on it. He has also deposed that he accused Manoj also picked up a piece of brick with which he killed deceased Sandeep to police and same was seized vide memo Ex. PW1/L. Thereafter accused Chaman Lal got recovered clothes and shoes of deceased from a plastic godown in Kamruddin Nagar. Photographs were taken.
48. In his cross examination he has stated that complainant Balbir Singh is related to his wife and deceased Sandeep was also known to him but he did not disclose this fact before the police. He has stated that he came to know about the arrest of accused persons on 15.04.2005 at about 9/10 am and accordingly he had gone to police station where all the three accused persons were present. One Raghbir, STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :66: first cousin of Balbir Singh was also present in the police station. He has also stated that there were no doors or windows in the store from where the dead body was recovered and the piece of brick that was handed over to police by accused Manoj was having blood stains on it. He denied the suggestion that he never participated in the investigation of this case or that he has deposed falsely at the instance of father of deceased being related to him or that dead body was not recovered in his presence at the instance of accused.
49. PW8 Raghbir Singh has testified that on 15.04.2005 he along with his brother Balbir (complainant), Insp. B. R. Mann, Lakhi Ram Verma, accused Chaman Lal, Manoj and other police officials went to Jaipur Highway, near Sabi river bridge mod in the store of irrigation department and accused Manoj pointed out the dead body which was having only underwear on it. His statement Ex. PW6/C3 regarding identification of body was recorded by police. He has further deposed that on 16.04.2005 post mortem on the STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :67: body of deceased was conducted and body was handed over to them after post mortem. In his cross examination he has stated that he is related to complainant Balbir and he visited police station on 15.04.2005 at 9.00 am where Lekhi Ram was present. He has further stated that clothes were lying at the place where dead body was lying. He has denied the suggestion that he did not visit Dharuhera and deposed falsely being related to deceased.
50. PW19 SI Satish Kumar has deposed that on 15.04.2005 when he was posted at police station Nangloi, he joined the investigation of this case and reached D-3 Shiv Ram Park, Nangloi along with ASI Ram Ratan, SHO Insp. B. R. Mann, HC Subhash and other staff in search of accused persons where they met accused Manish @ Monu. He was interrogated and on his formal search one mobile Nokia 1100 was recovered having number 9811627626. Same was opened and its IMEI number was checked by the investigation officer. The IMEI number of that mobile matched with the number of mobile of deceased Sandeep @ STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :68: Sonu and on further interrogation he told the police that the mobile was given to him by his friend Manoj. On further search of accused Manoj, one purse was recovered and it was found to contain sim number of deceased Sandeep @ Sonu. Accordingly accused Manish was arrested vide memo Ex. PW19/A. His personal search was conducted vide memo Ex. PW19/B. Recovered mobile and sim card were separately seized vide memo Ex. PW19/C. Disclosure statement of accused Ex. PW19/D was also recorded. He has further deposed that in his disclosure statement accused Manish disclosed that he along with accused Manoj and Chaman conspired to kill Sandeep as Sandeep used to tease the sister of Manoj and as per their conspiracy accused Manoj and Chaman took Sandeep to Dharuhera, Haryana on a motorcycle and killed Sandeep in a khandar and told accused Manish about the same. Thereafter accused Manoj handed over the mobile of deceased Sandeep to accused Manish and asked him to call the parents of deceased Sandeep and demand ransom from that mobile and accordingly he made many calls from the mobile phone of deceased Sandeep to STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :69: the mobile of father of deceased Sandeep. He also disclosed that he can got apprehended the co-accused persons and took them to H. No. 36, Extn. IV, Nangloi from where accused Manoj was arrested vide memo Ex. PW19/E. His personal search was conducted vide memo Ex. PW19/F and his disclosure statement Ex. PW19/G was also recorded. Accused Manoj also disclosed that he can get the body of deceased Sandeep, motorcycle and clothes worn by them in commission of crime recovered Thereafter at the instance of accused Manoj, the other accused Chaman Lal was arrested vide memo Ex. PW 19/H. Personal search of Chaman Lal was conducted vide memo Ex. PW19/I and his disclosure statement Ex. PW19/J was recorded. Thereafter accused persons led the police party accompanied with Balbir Singh and Lakhiram to Khandar of Irrigation Department at Dharuhera, Rewari from where in a small room decomposed body of deceased Sandeep was recovered which was wearing an underwear and some old clothes were also lying there.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :70:
51. PW19 SI Satish Kumar further testified that investigation officer prepared pointing out memo and recovery of dead body memo Ex. PW1/E. Accordingly information was sent to SHO PS Dharuhera and SI Aneshi Lal and other local police staff reached the khandar. Photographs of the scene of crime were taken. Accused Manoj got recovered half piece of brick from the spot and told that after murder of deceased Sandeep he crushed the head of Sandeep for the purpose to destroy the identity of the dead body and further told that they took the clothes and mobile of deceased Sandeep. That brick was seized vide memo Ex. PW1/C. At the instance of accused Chaman Lal clothes of deceased Sandeep were recovered from Kamruddin Nagar, Nangloi from a godown which were identified by father of deceased Sandeep. The clothes of deceased Sandeep were seized vide memo Ex. PW1/F. Statement of witnesses was recorded and case property was deposited in malkhana. He has further stated that on 16.04.2005 motorcycle Hero Honda Karizma no. DL 4SA U3578 was got recovered by accused Manoj from Nangloi from a Gali and same was STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :71: seized vide memo Ex. PW1/G. He has also deposed that on 11.05.2005 he alongwith Ct. Balwan on the instruction of the investigation officer went to MTNL office at Tis Hazari and collected call details of mobile no. 9868202872 and its ownership details after making written request. The same were seized vide memo Ex. PW14/A. Thereafter they went to office of Reliance, Barakhamba Road and collected cll details and proof of mobile phone no. 9313944225. Same were seized vide memo Ex. PW14/B. Then they both went to office of Hutch at Okhla Indl. Area and collected the call details and ownership details of mobile no. 9811627626 and same were seized vide memo Ex. PW14/C. He has further deposed that on 02.06.2005 on the instruction of investigation officer he took Insp. Devender to Dharuhera and at his instance Insp. Devender Draftsman, Crime Branch took rough notes and prepared the scaled site plan. On 05.07.2005 he went to PGI Rohtak with ligature material i.e. bra and obtained the opinion of doctor.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :72:
52. In his cross examination by counsel for accused persons PW19 SI Satish Kumar has stated it as correct that Nokia 1100 similar to Ex. PW19/1 and purse Ex. PW19/3 recovered from accused Manish are easily available in the market. He has denied the suggestion that the recoveries which have been effected from accused Manish have been planted upon him or that no mobile, chip and purse were recovered from the accused or that accused Manish was intentionally made a scape goat to solve a case. He has further denied the suggestion that entire writing work was done while sitting in the police station and at the instance of investigation officer or that accused Manish was beaten and tortured to sign on blank papers and to give disclosure statement or that no arrest and recovery was effected in pursuance of the disclosure statement. He has further stated that investigation officer asked the public persons to join the arrest of accused Manoj but they refused to join. He denied the suggestion that the story of clothes and motorcycle has been manufactured in order to falsely implicate the accused persons or that accused Chaman Lal and Manoj were lifted STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :73: from their respective houses on 14.04.2005 and falsely shown to be arrested on 15.04.2005 by manufacturing a false story of cloth and motorcycle. He has further stated that he had personally visited police station Dharuhera to lodge DD entry along with investigation officer prior to arrival of SI Aneshi Lal of police station Dharuhera. No earth control was lifted from the room at Dharuhera from where dead body was found and there were no blood stains on the piece of brick Ex. P-7. He has stated that except Lakhi Ram and Balbir, no local person joined the recovery proceedings. He denied the suggestion that dead body was not recovered at the pointing out of accused namely Manoj and Chaman or at their distance or that clothes were not recovered at the instance of Chaman or at his pointing out or that motorcycle was not recovered at the instance of accused Manoj or at his pointing out or that accused Sunil was called at the police station and his signatures were obtained on some blank papers which were used against the accused after fabricating the same or that dead body was already in the knowledge of police officials as well as father of the deceased or that same STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :74: was planted upon accused persons in order to falsely implicate them or that accused were given beatings in the police custody or that all proceedings were conducted while sitting in the police station or that he has deposed falsely at the instance of investigation officer.
53. PW22 Inspector B. R. Mann has deposed that on 15.04.2005 he was posted as SHO police station Nangloi and on that day SI S. S. Sandhu came to him and informed that mobile of kidnapped child Sandeep was being used by someone through Hutch Sim no. 9811627626 and that father of victim received ransom calls from the said mobile set and thereafter he took investigation of this case himself. A raiding party consisting of SI Satish Kumar, ASI Ram Rattan, HC Subhash, Ct. Jagdeep and Ct. Kuldeep etc was prepared for raiding premises of Rattan Lal i.e. D-3 Shiv Ram Park, Nangloi, Delhi. They all reached the house of Rattan Lal immediately and knocked the door of the house by uttering the words of his name and on hearing the same his son namely Manish Kumar came out and told that his father has STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :75: gone outside. On inquiry about sim no. 9811627626 he told that sim is in the name of his father and he used the sim. Since the sim was used in the mobile set of victim Sandeep @ Sonu, accused Manish Kumar was immediately apprehended who disclosed that the said mobile was given to him by his friends Manoj Kumar and Chaman Lal. Accused Manish was accordingly arrested vide memo Ex. PW19/A. In his personal search vide memo Ex. PW 19/B one purse, one driving licence, one dolphin sim bearing no. 9868202872 and a mobile phone Nokia 1100 of sky blue grey colour having sim no. 9811627626 was recovered. Said Nokia mobile with sim no. 9811627626 and 9868202872 were seized vide memo Ex. PW19/C. Disclosure statement of accused Manish vide memo Ex. PW19/D was prepared and he disclosed the he along with accused Manoj and Chaman Lal planned the kidnapping and murder of child Sandeep and accordingly on 07.04.2005 accused Manoj and Chaman Lal brought the child on their motorcycle and took him near Dharuhera, Gurgaon and committed the murder of said child Sandeep and threw his body in an abandoned room at Dharuhera, Gurgaon.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :76:
54. He has further deposed that thereafter accused Manish led them to house of accused Manoj from where he was arrested vide memo Ex. PW19/A. His personal search was taken and disclosure statement was recorded vide memos Ex. PW19/F and PW19/G. In his disclosure statement accused Manoj stated that he can get the body and clothes of Sandeep (deceased) recovered. Thereafter accused Manish and Manoj led the police party to the house of accused Chaman Lal from where he was arrested vide memo Ex. PW19/H. His personal search was taken and disclosure statement was recorded vide memo Ex. PW19/I and PW19/J. In his disclosure statement he disclosed the manner in which they kidnapped the child Sandeep and committing his murder and also stated that he can get the body of deceased Sandeep and his clothes recovered. Thereafter accused persons were taken to police station and complainant was informed about the development in the case and was called at the police station who reached there with two-three relatives. They were joined in the investigation and left for STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :77: Dharuhera along with accused persons and other police officials. One public person namely Lekhi Ram also agreed to join the investigation and he also left for Dharuhera with them. He has then testified that all the three accused persons led them to a room in an abandoned building of Irrigation Department from where one decomposed dead body in naked condition having one underwear and a bra encircled around his neck was recovered. Police station Dharuhera was informed about the same and SI Aneshi Lal and HC Nand Lal reached there and scene of crime was got photographed. Pointing out memo and recovery of dead body memo Ex. PW1/E was prepared. One half piece of brick was lifted at the pointing out of accused Manoj and it was taken into possession vide memo Ex. PW1/C. Rough site plan vide memo Ex. PW22/A was prepared. SI Aneshi Lal conducted the inquest proceedings and removed the body to hospital for post mortem. Thereafter at the instance of accused Chaman Lal one plastic katta containing clothes, leather belt and shoes of deceased Sandeep were recovered from a godown of one Sunil at 8/2 Kamruddin Nagar, Nangloi. All the articles STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :78: were identified by complainant Balbir Singh and were seized vide memo Ex. PW1/F.
55. PW22 has further deposed that medical examination of all the accused persons was got done. Thereafter accused Manoj led the police party to a street at the back of House no. 11, Extension-IV, Nangloi and got recovered motorcycle no. DL 4SAU 3578 make Karizma of Blue colour and same was taken into possession vide memo Ex. PW1/G. On 01.05.2005 Ct. Satpal brought postmortem report, inquest papers and exhibits from police station Dharuhera and same were taken into possession vide memo. Ex. PW2/A.
56. In his cross examination this witness has stated that he did not inquire from Balbir Singh regarding any ransom call made to him or kidnapping of his son on 15.04.2005. He has denied the suggestion that he has planted the recoveries of mobile, purse, driving licence and sim card over the accused in order to falsely implicate him STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :79: or that accused Manish was apprehended on 14.04.2005 from his shop at Karol Bagh or that disclosure statement of the accused was obtained by him under threat and coercion or that Ex. PW19/C, Ex.PW 10/B, Ex,.PW10/A, Ex. PW10/C, Ex. PW17/A, Ex. PW17/B, Ex. PW11/B, Ex. PW19/F, Ex.PW19/A and Ex. PW19/B are manufactured documents to implicate accused Manish in this case in order to complete the chain of circumstantial evidence. He has further denied that accused Manish did not accompany the police party to the house of accused Manoj, Chaman Lal or to Dharuhera or that accused Chaman and Manoj were not attested at the instance of accused Manish. He has further stated in cross examination that first investigation officer SI S. S. Sandhu had verbally told him about the working of no. 9811627626 in the mobile phone of deceased in the morning of 15.04.2005 and he got the information through the documents provided by ACP, Punjabi Bagh. He has further stated that Section 364A IPC was added on 14.04.2005 by the previous investigation officer prior to his taking over the investigation and Section 302 & 201 IPC was added after reaching Dharuhera and STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :80: recovery of body. He has further stated that he tried to join public persons in the investigation but none agreed to join them and went away without disclosing their names and addresses except one Lakhiram who agreed to join the investigation. He has denied the suggestion that accused Manoj and Chaman had not disclosed about the motorcycle and clothes of deceased or that accused Manoj and Chaman were forced to sign certain papers under the fear and undue coercion and those documents were converted into certain memos lateron or that accused Chaman and Manoj were lifted from their houses or that accused Manoj and Chaman did not point out any place of recovery of dead body or that place from where dead body was recovered was already in the knowledge of father of deceased as well as the police officials well before 15.04.2005. He has further denied dead body was planted on accused persons in order to falsely implicate them in this case or that the building from where dead body was recovered is a guarded by guards of irrigation department or that witness Lakhiram was closely related to the deceased being his Phupha or that he was interested STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :81: witness or that he did not investigate the case fairly and accused persons have been falsely implicated in this case.
57. PW9 ASI Nand Lal, from PS Bewal, District Rewari has deposed that on 15.04.2005 he was posted at PS Dharuhera and on receipt of DD no. 12A, he along with SI NC Lal reached the spot near the bridge Shabi River, Jaipur Highway where they met police officials of Delhi Police along with complainant Balbir Singh and his brother and there one decomposed dead body of Sandeep was lying having one underwear only. Accused Manoj and Chaman Lal pointed out the dead body and body was identified by Balbir Singh and Raghbir. SI Aneshi Lal took the dead body into possession and sent the same to CHC Bewal, Rewari, Haryana from where body was referred to PGIMS Rohtak as body was decomposed, where it was preserved. In his cross examination by counsel for accused, he has stated that there is a godown of irrigation department from where the dead body was found. He has further stated that the said godown was having shutter and the body was visible from the place of opening and closing the shutter.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :82:
58. PW15 SI Anshi Lal (retd.) has deposed that on 15.04.2005 he was posted at PS Dharuhera as SI and on that day Delhi Police brought accused Chaman and Manoj and both the accused persons took the police party to the place where they threw the dead body of Sandeep. The body was identified by relatives of the deceased and the body was decomposed and was wearing pant and shirt. He has further deposed that he removed the body to Rohtak Medical College for post mortem. During cross examination he has stated that no blood stained article was lying or found near the dead body and the same was in identifiable condition. He has denied that he did not accompany the Delhi police officials or that he was never associated with them in any proceedings or that accused Chaman or Manoj did not point out the place where the dead body of Sandeep was recovered or that no recovery was effected at the instance of accused Chaman and Manoj or that all the memos were prepared at the police station.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :83:
59. PW12 P. K. Madan, has proved the photographs Ex. PW12/B-1 to B-8 and negatives Ex. PW12/A-1 to A8 taken by him on the instructions of investigation officer at Dharuheda
60. Ld. defence counsels vehemently assailed the alleged recovery of dead body on the pointing out of accused Manoj and accused Chaman. It is submitted by ld. defence counsel that the dead body was recovered prior to arrest of accused persons on 15.04.2005. It is evident from the call details of PW-1 Balbir Singh Ex.PW11/B. These call details is having blanks on 15-16th April, 2005 from X-1 to X-2 portion. These blanks shows that PW1 Balbir Singh had already gained the knowledge and seen the dead body. The call details Ex.PW11/B were manipulated by the investigation officer, therefore, blanks X-1-X-2 appeared. It is further pointed out that in a dramatic way the arrest of all the three accused persons have been shown. The arrest memo shows the timings which are not probable and believeable. The cross-examination of PW1 Balbir Singh, PW7 Lakhi Ram STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :84: Verma and PW8 Raghbir Singh highlighted by the defence counsels. It is submitted that PW7 Lakhi Ram Verma who is near relative of deceased and PW1 Balbir Singh but it is concealed by investigation officer as well as the witness himself but in cross-examination he admitted that he is a relative of PW1 Balbir Singh. His testimony cannot be believed because he is an interested witnesses and he is introduced by the investigation officer. Similarly, PW8 Raghbir Singh is also brother of PW1 Balbir Singh who is also interested witness. It is further pointed out that the cross- examination of these witnesses whose that much prior to the arrest of accused persons they went to the police station and they knew the recovery of of dead body. Ld. defence counsel drawn my attention to the testimony of PW4 Sunil Kumar who visited the police station on 15.04.2005 and found that police called Manoj in the afternoon at police station. In the evening on his visit to the police station, he found five-seven boys were in the police station. The investigation officer projected PW7 Lakhi Ram Verma as independent witness. PW7 Lakhi Ram Verma came for purchase of vegetables from STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :85: Paschim Vihar to Nangloi and at chowk he joined the investigation which is patently false situation created to show that he is an independent witness. It is further submitted that the recovery witnesses are not trustworthy being interested. The cross-examination of PW1 Balbir Singh also contains facts which show that accused persons were arrested in his presence. The investigation officer PW22 Inspector B.R. Mann and PW19 SI Satish Kumar as deposed in cross-examination conducted investigation contrary to the well established procedure. There is a doubt of information to the police station Daruhera. Their testimony is contradictory to testimony of PW15 SI Anshi Lal. As per DW1 HC Surender, DD entry lodged at Daruhera Police Station shows that the investigation officer never informed properly to the concerned police station about the investigation regarding recovery of alleged dead body. There are material contradictions. All the prosecution witnesses create doubt that accused Manoj and Chaman Lal led police party to the recovery of dead body at their instance. Ld. defence counsel pointed out the photographs of accused in which he was bare STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :86: footed and his body language shows that he is under threat and must have given beatings. Ld. defence counsel submits that prosecution failed to establish this circumstance.
61. I have considered the respective submissions and gone through the testimonies of all above discussed witnesses of recovery of dead body of deceased Sandeep @ Sonu at Daruhera. Arrest of accused Manish @ Monu and recovery of mobile Nokia 1100 and sim number 9868202872 led to arrest of co-accused Manoj and Chaman. Disclosure statements of all three witnesses were recorded. Disclosure statements are Ex.PW19/D of Manish, Ex.PW19/G of Manoj and Ex.PW19/J of Chaman Lal. The law is well settled that disclosure statements are not admissible as evidence as per section 25 of Indian Evidence Act. However, as per section 27, Indian Evidence Act, the discovery of new facts in pursuance of disclosure statement are admissible. Accused Manoj Kumar and accused Chaman Lal in pursuance to their disclosure statements led the investigation officers to Irrigation Department's godown, Daruhera, Haryana near STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :87: Jaipur highway. The dead body of Sandeep @ Sonu recovered as per pointing out of accused Manoj and accused Chaman. The pointing out memo Ex.PW1/E proved by prosecution. The dead body was in highly decomposed condition. An underwear was on the dead body. The pointing out memo and seizure memo of dead body was signed by PW1 Balbir Singh and PW7 Lakhi Ram Verma. A half piece of brick was also seized Ex.P-7 which was seized vide memo Ex.PW1/C. The testimony of PW1 Balbir Singh as discussed hereinabove in detail clearly established that on 15.04.2005, he was called at PS Nangloi where accused Manoj and Chaman were present with police officials. Thereafter, they took them to Sabi Nadi River, Daruhera from where the dead body was recovered. He identified the dead body. He also proved that photographs of dead body was taken and a piece of brick was taken which was seized by the police. He further proved the documents prepared by the investigation officer. In cross-examination as per his observations, he deposed that there was no blood stains on the body of his son but some clothes consisting of strips from clothes lying near the STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :88: dead body. He did not notice whether the brick piece was having blood stains or not. The dead body was lying on the heap of clothes. He further explained that he was not aware that they were taken to Daruhera for recovery of dead body. He further explained that room where dead body was lying was not having door. The testimony of PW1 established that he was not at Daruhera prior to 15.04.2005 as pointed out by ld. defence counsels that there was blank space at X-1 and X- 2 portion in his call details Ex.PW11/B but no question of suggestions put to him that the dead body was already recovered prior to arrest of accused persons. He was not confronted with call details Ex.PW11/B. So there is no circumstance to disbelieve the testimony of PW1 Balbir Singh.
62. PW7 Lakhi Ram Verma who joined investigation on 15.04.2005 and went to Sabi Nadi River, Room of Irrigation Department store, Jaipur Highway. In chief examination he corroborated the investigation carried out for recovery of dead body at the pointing out of accused Manoj and accused STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :89: Chaman. He also identified the brick seized Ex.P-7. In the cross-examination, he admitted that he is the relative of PW1 Balbir Singh and earlier also, visited his house on getting the information of his missing son. He was examined after about four years of incident and in cross-examination he deposed that he came to know about the arrest of accused persons at 9.00-10.00 a.m. on 15.04.2005. He has obvious answer as a normal human being but it does not rule that he did not join the investigation. The factum that he is relative of PW1 Balbir Singh cannot brush aside his testimony being interested witness. It is pertinent to mention here that he concealed that fact but in cross-examination he answered truthfully that his wife is related to PW1 Balbir Singh. He has explained the store room from where the dead body was recovered. He also explained that Delhi Police officials went to Daruhera. They reached at Delhi at about 4.00-5.00 p.m.
63. Similarly, PW8 Raghubir Singh who is the brother of PW1 Balbir Singh corroborated the fact of recovery of dead body. He also highlighted the fact that dead body was taken STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :90: to PGI, Rohtak for post mortem which was conducted on 16.04.2004 and he received the dead body after post mortem. He is also relative being brother of PW1. He admitted that PW7 Lakhi Ram Verma is his relative. He explained that local police also came there. The dead body was lying 200-300 yds. from highway and at that time no public person was present. But no cross-examination on other important aspects of recovery of dead body was conducted. His testimony being brother of PW1 cannot be brushed aside. On the basis of above observations, although PW7 Lakhi Ram Verma and PW8 Raghbir Singh are relatives but there is no reflection of their special interest on record. Although investigation officer has given facts in which they are not shown as relatives of PW1 Balbir Singh but it does not affect the veracity, truthfulness and trustworthiness of these witnesses.
64. PW9 ASI Nand Lal of PS District Rewari is another witness of recovery and further proceedings conducted by police officials of PS District Rewari. He explained that the STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :91: dead body is lying in the decomposed condition and he met Balbir Singh and his brother. He further corroborated that accused Manoj and Chaman pointed out the dead body. He took the dead body to PGI Rohtak where post mortem was conducted on next day. He proved in cross-examination that DD No. 12 is in this regard. He further explained that dead body was visible from the place of opening and closing of shutter of the godown but he never observed prior to that day any bad smell while on patrolling.
65. PW12 R.K. Madan who took photographs of the spot of dead body at Daruhera and proved negatives Ex.PW12/A-1 to Ex.PW12/A-8 and positives Ex.PW12/B-1 to Ex.PW12/B-8. His testimony remained unrebutted despite opportunity given for cross-examination.
66. PW15 SI Anshi Lal is another witness of recovery of dead body. His testimony is discussed hereinabove in detail. He deposed that dead body wearing pant and shirt was in decomposed condition. He also proved all the STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :92: documents prepared for post mortem. He proved DD entry no.25 Ex.PW15/D, DD No. 37 and DD No.45 Ex.PW15/E. His version regarding the dead body status shows that after about five years and retirement he is not recapitulate his memory and this fact does not affect the prosecution case in any manner because other recovery witnesses stated the correct facts. In the cross-examination he further explained that accused Manoj and Chaman were with police officials at the time of recovery of dead body. He proved the proceedings conducted by under section 174 Cr.P.C. He also explained situation of irrigation department store room. He also corroborated the important facts of recovery of dead body at the instance of accused Manoj and Chaman.
67. Now coming to the testimony of PW19 Satish Kumar and PW22 Inspector B.R. Mann. Ld. defence counsel pointed out that contradictions between both the testimonies. PW22 IO Inspector B.R. Mann deposed that all the three accused persons were taken to Daruhera which is totally contradictory to testimony of other witnesses who STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :93: joined the investigation for recovery of dead body. There is a doubt about the lodging DD entry at PS Daruhera because he deposed that he immediately went to PS Daruhera whereas PW19 SI Satish Kumar states that information was sent to PS Daruhera. IO further made statement contrary to the record that Lakhi Ram Verma is not related to PW1 Balbir Singh. PW19 Satish Kumar deposed that PW1 Balbir Singh was briefed about going to Daruhera and other contradictions occurred during the cross-examination highlighted.
Investigation officer PW22 B.R. Mann and PW19 SI Satish Kumar during cross-examination deposed facts which are discussed hereinabove in detail having minor contradictions but on the vital points they corroborated each other. They were examined after about 5 years of the incident and minor contradictions are bound to occur. However, these contradictions are not affecting the prosecution case in any manner. It is pertinent to mention here that accused Chaman led defence witnesses DW1 HC Surender of PS Daruhera. He proved DD No. 12 which was lodged by IO Inspector B.R. Mann on 15.04.2005 which was STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :94: lodged around 11.45 a.m. During cross-examination, DD No.16 also proved by him which is in torn condition. Rest of the whole DD register was intact. He further proved other DD entries pertaining to present case. DD No.37, 54 and 45 clearly established that the officials of Delhi Police on 15.04.2005 went to Daruhera for recovery of the dead body and thereafter inquest proceedings were conducted and post mortem was also conducted there and till 20.04.2005 whatever proceedings conducted are recorded in DD register. In another defence witness DW2 B.K. Sharma, Superintending Engineer, Irrigation Department proved the RTI of Manoj Kumar. DD entry DW-1/A of police station Daruhera mentioned that it was lodged by Inspector B.R. Mann, Police Station Nangloi. The detailed facts of the care are mentioned in this DD entry. Some portion of DD entry Ex.DW1/B is torn and reflects the timings 2.25 p.m. which also reflect that DD No. 12 is in regard to recovery of dead body. Ex.DW1/C DD No. 25 is another DD entry. DW2 proved the attendance for the month of April, 2005. It shows the attendance of chowkidars as per record and visit of JE at STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :95: the spot of recovery of dead body. However, the marking on attendance does not establish that the chowkidars are always remained there physically. There is no register to show the physical presence of a government employee at a particular site and that too at a remote village. This attendance register does not produce no doubt about the prosecution case. Ld. defence counsel also pointed out a DD entry Mark 22/DA which mentions the FIR of the present case regarding the same investigation. This DD entry is not proved in accordance with law. There is no authenticity of this mark DD entry and not proved by calling original DD register.
68. PW15 Aneshi Lal further corroborated that he conducted the inquest proceedings of the present case. DD entry Ex.DW1/D further corroborated entry lodged by PW9 HC Nand Lal regarding post motem of the dead body. Similarly, another DD entry Ex.DW1/E lodged by PW9 HC Nand Lal proved post mortem. Similarly DD entry Ex.DW1/F further corroborated the fact of seizure of two sealed parcels STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :96: handed over by doctor after post mortem and deposit at Malkhana.
69. On the basis of above observations and discussion, prosecution proved the circumstance beyond reasonable doubt that dead body of deceased was recovered at the instance of accused Manoj and Chaman from Daruhera and a brick Ex.P7 was also recovered and the dead body was wearing only underwear at the time of recovery which was in highly decomposed condition.
Circumstance No. 6
70. Prosecution examined PW1 Balbir Singh, PW4 Sunil Kumar, PW7 Lakhi Ram Verma, PW19 SI Satish Kumar and PW22 IO Inspector B.R. Mann.
71. PW4 Sunil Kumar, a junk dealer running his shop at Kamruddin Nagar, has deposed that on 15.04.2005 accused Chaman Lal had got recovered one plastic bag from godown containing clothes of deceased Sandeep after committing his murder and same was seized vide memo Ex.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :97: PW1/F. He has further deposed that on 15.04.2005 accused Manoj got recovered motorcycle No. DL 4SAU 3578 used in the commission of offence from the gali behind his house and same was taken into possession by police vide memo Ex. PW1/G. In his cross examination by counsel for accused, he has stated that accused Manoj used to work in his plastic godown. On 15.04.2005 accused Manoj was called by the police in the afternoon. He has further stated that when he visited the police station on 15.04.2005 to enquire about Manoj, five-seven boys were sitting on the floor at the police station. He further stated that on 15.04.2005 when police came to take accused Manoj, they did not search his godown in his presence. He further stated that his signatures were obtained on some blank papers. He denied the suggestion that he has deposed at the instance of investigation officer.
72. The testimonies of PW1 Balbir Singh, PW4 Sunil Kumar, PW7 Lakhi Ram Verma, PW19 SI Satish Kumar and PW22 Inspector B.R. Mann discussed hereinabove in detail.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :98:
73. It is pertinent to mention here that when circumstance no. 1 discussed in detail then it was observed that prosecution established the fact that at the time of missing deceased Sandeep @ Sonu was wearing one cream colour pant, belt, one vest, one blue colour T-shirt and one pair of sport shoes. The law is well settled that disclosure statements are not admissible as evidence as per section 25 of Indian Evidence Act. However, as per section 27, Indian Evidence Act, the discovery of new facts in pursuance of disclosure statement are admissible. Ex.PW19/J is disclosure statement of accused Chaman Lal. Accused Chaman Lal when returned to Delhi led the investigation officer to Kamruddin Nagar in a godown of plastic. A plastic bag got recovered by him and on checking one cream colour pant, belt, one vest, one blue colour T-shirt and one pair of sport shoes which was identified by PW1 Balbir Singh and belonging to his son and worn by him at the time of missing. He proved the seizure memo Ex.PW1/F. He identified these articles pair of sports shoes Ex.P2, shirt Ex.P3, pant Ex.P4, vests P5 and belt Ex.P6.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :99:
74. In cross-examination PW1 Balbir Singh deposed that about 5.00-6.00 p.m. they reached at Godown. It was found open and there were many bags lying in the godown. Accused Chaman got recovered a bag which was not having any mark. He also explained that how he identified pant having zip at bottom of cream colour and blue colour T shirt. He pointed out that bag was hidden in the plastic garbage.
75. PW7 Lakhi Ram Verma who also went to the godown and corroborated the fact that accused Chaman Lal took them to Kamruddin Nagar godown. He witnessed recovery of above said articles belonging to the deceased. He also identified all the articles. In the cross-examination despite opportunity given to accused Chaman Lal, the testimony of in this regard remained unrebutted. No suggestion or question put by ld. counsel for accused Chaman in respect of recovery of clothes and pair of shoes at the instance of accused Chaman from the godown at Kamruddin Nagar.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :100:
76. The testimony of PW4 Sunil Kumar, junk dealer has been discussed hereinabove. He joined the investigation on 15.04.2005. He identified accused Chaman Lal as well as PW1 Balbir Singh. He further corroborated the fact that accused Chaman Lal got recovered plastic bag from the godown and disclosed that accused Chaman Lal kept the clothes of deceased after committing murder. He also witnessed the seizure of articles vide memo Ex.PW1/F. He also identified all the recovered above said articles from the plastic bag at the instance of accused Chaman Lal. In cross- examination, he admitted that accused Manoj used to work in his plastic godown. In the cross-examination no question or suggestion put on behalf of accused Chaman that no recovery was affected at the godown of PW4 Sunil Kumar at the instance of accused Chaman. No question was asked on the aspect of recovery. These three vital witnesses of recovery at the instance of accused Chaman Lal corroborated the prosecution case in its entirety. PW4 Sunil Kumar is an independent witness. This witness further clarified that accused persons were not called by police on 13th April or STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :101: 14th April, 2005 at police station. It was only on 15.04.2005 he was called at the police station. The investigation was carried out at his godown.
77. PW19 SI Satish Kumar who is also witness to recovery of clothes. Ld. defence counsel put to him disclosure statement Ex.PW19/J where due fact in pursuance to which recovery of articles of deceased was made spelled out by PW19. He explained the distance of godown is half kilometer from police station. The godown is situated in a mixed residential and commercial area. He corroborated the time of recovery at 5.30 p.m. and the fact that Sunil met them. The plastic bag which was taken out at the instance of accused Chaman was the bag of rice of Tajmahal. He further corroborated that at the time of recovery accused Chaman, Sunil, Lakhi Ram and Balbir Singh were present. He also identified recovered clothes and pair of shoes.
78. PW22 B.R. Mann, IO further corroborated the testimony of above discussed all the witnesses. He also STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :102: identified the recovered articles of deceased and seizure memo Ex.PW1/F. In cross-examination he denied the suggestion put to him that recovery of clothes and pair of shoes planted on accused Chaman. A specific question was also put to accused Chaman in the statement under section 313 Cr.P.C. but he has not given any explanation how the clothes of deceased came in his possession. Why and how these articles i.e. pair of sports shoes Ex.P2, shirt Ex.P3, pant Ex.P4, vests P5 and belt Ex.P6 were planted by police.
79. On the basis of above observations and discussion, prosecution proved the circumstance beyond reasonable doubt that recovery of pair of shoes Ex.P2, Shirt Ex.P3, Pant Ex.P4, vest Ex.P5 and belt Ex.P6 recovered at the instance of accused Chaman Lal from the godown of PW4 Sunil.
Circumstance No. 7
80. PW1 Balbir Singh deposed that on 16.04.2005 he joined the investigation along with IO. Accused Manoj took them to Extension II in a gali and got recovered Hero Honda vide seizure memo. He identified recovered motorcycle no.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :103: DL4S AU-3578 Ex.P1. In cross-examination no question or suggestion put by ld. defence counsel for accused Manoj on this aspect in examination in chief to the effect that motorcycle no. DL4S AU-3578 was recovered at the instance of accused Manoj.
81. PW4 Sunil also identified the motor cycle Ex.P1 and seizure memo Ex.PW1/G. In cross-examination he explained that accused Manoj used to work in his plastic godown. The recovered motor cycle was used by the employees of the godown. On 15.04.2005 when he left for police station, motor cycle was in the godown. These facts established that the motor cycle was recovered on 16.04.2005.
82. PW19 SI Satish Kumar on the aspect of recovery of motor cycle at the instance of accused Manoj deposed that on 16.04.2005, he got recovered one Hero Honda Karizma No. DL 4S AU3578 from H.No.11, Extension IV, Nangloi from a gali vide seizure memo Ex.PW1/G. In cross-examination ld.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :104: defence counsel for accused Manoj put to him disclosure statement Ex.PW19/G. He explained the distance between house no. 11, Extension 4, Nangloi from where the motor cycle was recovered is around 3-4 km from the police station. He denied the suggestion that motor cycle was not recovered at the instance of accused Manoj and it has been planted.
83. PW22 IO Inspector B.R. Mann also corroborated the facts regarding the recovery of motor cycle at the instance of accused Manoj. He denied the suggestion put to him that motor cycle has been planted and false story has been made for false implication of accused Manoj. A specific question was also put to accused Manoj in the statement under section 313 Cr.P.C. but he has not given any explanation how the motor cycle came in his possession. Why and how police planted motorcycle on him.
84. On the basis of testimonies of PW1 Balbir Singh, PW4 Sunil, PW19 SI Satish Kumar and PW22 IO STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :105: Inspector B.R. Mann, it has been proved by prosecution beyond reasonable doubt that the motor cycle no. DL 4S AU3578 which was used in the commission of crime by the accused persons, was recovered at the instance of accused Manoj.
Circumstance No. 8
85. In order to prove Circumstances no. 8 the prosecution has adduced evidence of PW6 Dr. S. K. Dhattarwal, PW15 SI Aneshi Lal (retd.) and PW 19 SI Satish Kumar.
86. PW6 Dr. S. K. Dhattarwal, has proved the copy of post mortem report of deceased Sandeep Ex. PW6/A prepared by him on 16.04.2005 wherein he opined that cause of death was strangulation by ligature. He has further deposed that on 05.07.2005 SI Satish Kumar produced before him the ligature material i.e. bra and after examination he opined that strangulation is possible by the brought ligature material i.e. bra. His opinion given in this regard is Ex. PW6/B. During cross examination he has stated that there STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :106: was no injury on head and face of the dead body of deceased Sandeep. He denied the suggestion that he prepared a false post mortem report at the instance of investigation officer.
87. PW18 Retd. ASI Bhoj Raj, has deposed that on 20.04.2005 he was posted as MHC(M) at PS Dharubhera, Distt. Rewari and on that day HC Nand Lal deposited two sealed parcels and proved entry in this regard as PW18/A. He further deposed that on 01.05.2005 the sealed parcels were handed over to Ct. Satpal vide entry Ex. PW18/A signed by him at point X. He also proved the copy of RC Ex. PW18/C. He denied the suggestion that he made false and fabricated entries or that same were ante dated or that he has made the entries at the instance of investigation officer or that he has deposed at the instance of investigation officer.
88. PW2 Ct. Satpal has deposed that he on the instructions of SHO took two sealed pullandas from police statin Dharuhera and handed over the same to SHO police station Nangloi and the same were seized vide memo Ex. PW2/A. STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :107:
89. PW6 Dr. S. K. Dhattarwal has proved the postmortem report Ex. PW6/A of deceased Sandeep Kumar @ Sonu where in he opined the cause of death as strangulation by ligature. He has further deposed that strangulation is possible by ligature material which was brought by SI Satish Kumar. PW 15 ASI Aneshi Lal (retd.) has testified that he prepared the inquest papers at the place of recovery of dead body and removed the same to Rohtak Medical College for postmortem. PW19 SI Satish Kumar has deposed that on 05.07.2005 he went to PGI Rohtak with ligature material i.e. bra and obtained the opinion of the doctor regarding the same.
90. The postmortem report specifically mentions the ligature material "a white bra properly tied around neck preserved". As per opinion the cause of death is strangulation by ligature and time since death is about 10 days. PW6 Doctor S. K. Dhattarwal gave the approximate STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :108: time since death as ten days after seeing the dead body. He has also stated in cross examination that time since death approximation may vary by one to two days on either side. PW6 Dr. S. K. Dhattarwal further mentioned in the postmortem report about the articles handed over to police by him after the postmortem examination on 16.04.2005. The list mentions about six articles and the ligature material bra is mentioned at serial no. four. It is further specifically mentioned that it was sealed with two seals. The postmortem report reflects that at the time of recovery of dead body it was in decomposed state and very foul smell was coming from it and therefore, the police officials and other persons at that time did not observe the dead body minutely to locate the ligature material i.e. Bra Ex. PW19/4. Therefore, there is no chance of any fabrication or introduction of bra as ligature material because it was found out by the doctor at the time of conducting postmortem on 16.04.2005 and on the same day he had handed over the same to the concerned police officials. Application dated 05.07.2005 was moved for getting the opinion regarding the ligature material and opinion Ex.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :109: PW6/B was subsequently given. As per report Ex. PW6/B it was prepared by Dr. S. K. Dhattarwal on 05.07.2005 when a sealed envelope was produced before him containing one bra i.e. ligature material Ex. PW19/4. All the details of the sealed parcel is mentioned in the report which establishes that bra Ex. PW19/4 was seized at the time of postmortem on 16.04.2005. This fact is further corroborated by the testimony of PW2 Ct. Satpal who proved the fact that on 01.05.2005 he went to police station Dharuhera where MHC (M) handed over two sealed pullandas and two sample seals. Later on he handed over the same vide memo Ex. PW2/A. Ex. PW2/A specifically mentions that one of sealed pullandas was containing bra having two seals. In cross examination PW2 was not given any suggestion or no question was put to PW2 by the Ld. Defence counsels that he had fabricated the sealed pullandas before the same were handed over by him to SHO Police Station Nangloi.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :110:
91. Both the defence counsels have vehemently argued that bra was later on introduced in the testimony of PW19 SI Satish Kumar and it is not corroborated by any other material on record but I find no merit in this submission as discussion herein above the ligature material bra Ex. PW19/4 was seized by doctor at the time of postmortem on 16.04.2005. It was sealed and deposited at malkhana police station Dharuhera and later on it was brought to Delhi and seized by the investigation officer vide Ex. PW2/A. On 05.07.2005 PW19 SI Satish Kumar moved an application before PW6 Dr. S. K. Dhattarwal seeking final opinion regarding ligature material bra Ex. PW19/4 along with sealed parcels. Therefore, there is no substance in the submission that it was manipulated and later on shown as ligature material used for strangulation. Another point which is strongly pointed out by both the defence counsels is the report prepared by PW15 SI Aneshi Lal police station Dharuhera who prepared the death report and post mortem papers. As per the death report form 25.31 Ex. PW6/C-8 prepared by PW15 SI Aneshi Lal there are signs of pressing of STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :111: neck. Although in witness box he stated that the dead body was having pant and shirt. This observation is contrary to all the other witnesses who are examined by the prosecution. However, the documents prepared by him Ex. PW6/C-2 on the back side, he specifically observed that death was due to pressing of neck (strangulation). PW19 SI Satish Kumar was cross examined in detail but the Ld. Defence counsels did not put any question to him or no suggestion was given to him that final opinion given by PW6 was fabricated by the doctor at his instance or that PW6 did not seize any bra on 16.04.2005 after the postmortem. The testimony of PW15 SI Aneshi Lal and the documents proved by him of inquest Ex. PW15/A to PW15/C and Ex. PW6/C8, PW6/C2 and PW6/C3 are in consonance to the prosecution case. The photographs Ex. PW12/B-1 to B-8 proved on record also shows that the dead body of the deceased was wearing underwear only and no pant-shirt and face is not properly visible.
92. In cross examination no question or suggestion was given to PW15 SI Aneshi Lal by the Ld. Defence counsels STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :112: that Ex. PW15/A to PW15/C and Ex. PW6/C8, PW6/C2 and PW6/C3 were all manipulated by the police officials in order to falsely implicate the accused persons in this case. The defence witness DW1 HC Surender, Police Station Daruhera who proved the DD entries also corroborates the factum of post mortem of dead body and thereafter the further proceedings conducted by Daruhera police officials. DD No. 16 dated 15.04.2005 Ex.DW1/B, DD No. 25 dated 15/16.04.2005 Ex.DW1/C, DD No. 37 dated 17.04.2005 Ex.DW1/D, DD No.54 dated 19.04.2005 Ex.DW1/E and DD No. 45 dated 20.04.2005 Ex.DW1/F are all concerned with the present case.
93. On the basis of above observation and discussion, prosecution has succeeded in proving beyond reasonable doubt the circumstances that the cause of death of deceased in this case is strangulation by ligature and time since death was 10 days approximately and ligature material Ex. PW19/4 was seized by the doctor after postmortem and Ex. PW19/4 was used in strangulating the deceased.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :113:
9. Conspiracy
94. The ingredients of the offence of criminal conspiracy are :
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
95. Condition precedent for holding the accused persons to be guilty of a charge of criminal conspiracy must, therefore, be considered on the anvil of the fact which must be established by the prosecution, viz., meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. However, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :114: establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/or by necessary implication.
The following passage from Russell on Crimes (12th Edn. Vol. 1) cited by Supreme Court in Kehar Singh and Others vs. State (Delhi Administration), 1988 (3) SCC 609 at 731 and AIR 1988 SC 1883, Para 268 brings out the legal position succinctly :-
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to to them, but in the forming of the scheme or agreement between the parties.
Agreement is essential. Mere knowledge or even discussion, of the plan is not, per se enough."
Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy [i]t is not STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :115: required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished.
In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. Supreme Court in State of Maharashtra vs. Som Nath Thapa [(1996) 4 SCC 659] and 1996 AIR SCW 1977 opined that it is necessary for the prosecution to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use, stating :-
"24. The aforesaid decisions, weighty as they are, led us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :116: intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborate would do, so long as it is known that the collaborator would put the goods or service to an unlawful use"
In the case of Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and Another vs. CBI, 2008 (14) SCALE 240 and AIR 2008 SC (supp) 938, Supreme Court held that:
"55. The principles which can be deduced from the above-noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co-
participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :117:
96. Applying the above discussed principle of law in the present fact and circumstances of the case, has to be appreciated in what manner each accused participated and agreed to hatch and execute the conspiracy. The circumstances, which are crystalised after the examination in total 23 witnesses that deceased Sandeep @ Sonu was missing since evening of 07.04.2005 and a missing report was lodged Ex.PW1/A. Subsequently, PW1 Balbir Singh received ransom call on two calls on 11.04.2005, two calls on 13.04.2005 and two calls on 14.04.2005. The circumstance that the mobile phone of deceased was also missing and PW1 Balbir Singh received a ransom call at his phone from the number of deceased mobile Nokia 1100. It is proved on record that the mobile Nokia 1100 is having IMEI no. 3525240042539505. The call record of PW1 Balbir Singh Ex.PW20/F and Ex.PW10/A to Ex.PW10/C and call record of the phone in the name of Rattan Lal Ex.PW17/A to Ex.PW17/C is proved on record. The detailed call record proved on record established that all the three accused shared the mind in executing their conspiracy of kidnapping STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :118: for ransom and murder of deceased Sandeep @ Sonu. All the three call details of phone so interconnected and woven it established beyond reasonable doubt that they were in agreement to commit an illegal act. The mind of all three three accused persons was actively involved in the conspiracy. The recovered mobile phone set Nokia 1100 along with sim card of deceased and sim card of father of Manish further established that as per their conspiracy they were using the same cards in the recovered mobile alternatively. The ransom calls were also made by using the sim of deceased. Each of the accused played his separate role in commission of the conspiracy to achieve common purpose. Each one is aware and know all the secret means by which the common purpose is to be accomplished. The dead body was also recovered at the instance of accused persons in a highly decomposed condition at Daruhera on 15.04.2005. The post mortem report further established that the deceased was strangulated by using the bra. After recovery of dead body the clothes of deceased were recovered at the instance of accused Chaman Lal.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :119: Thereafter, motor cycle used by accused persons were also recovered at the instance of accused Manoj. The most important aspect that the mobile of deceased with sim card of deceased recovered from the possession of accused Manish. These facts which are proved beyond reasonable doubt by the prosecution established that all the three accused persons hatched a criminal conspiracy to achieve their common purpose of kidnapping for ransom of deceased, murder and disappearance of evidence.
Charge u/s. 411 IPC
97. A separate charge framed against accused Manish Kumar @ Monu for offence under section 411 IPC. The accused Manish @ Monu was found in possession of mobile phone Nokia 1100 and Dolphin chip used by Sandeep Kumar @ Sonu deceased. The prosecution examined PW1 Balbir Singh and two recovery witnesses PW19 SI Satish Kumar and PW22 Inspector B.R. Mann. The prosecution has to establish that it must be in the knowledge of accused that he had knowledge and reasons to believe to be stolen property.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :120: However, in the present case no allegation made by PW1 Balbir Singh regarding theft of mobile phone and Dolphin chip belonging to Sandeep Kumar deceased. In the absence of specific allegations of theft of the recovered mobile phone and dolphin chip is not a stolen property. Furthermore it is not the case of prosecution of theft of these articles. Hence, charge under section 411 IPC is not proved by prosecution.
98. In view of forgoing discussion, the prosecution completes the chain of circumstances no. 1 to 9 against accused Manoj, Chaman Lal and Manish beyond reasonable doubt. The circumstances chain formed on the basis of cogent and firmed proved evidence which infer the guilt of both accused persons. The circumstances chain of evidence is definite and unerringly pointing towards guilt of the accused persons. The chain of circumstances is taken cumulatively forms a chain so complete that there is no escape from the conclusion within all human probabilities that the crime was committed by accused Manoj, Manish and Chaman. Lastly the circumstantial chain established by STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC. :121: prosecution beyond reasonable doubt is inconsistent with the innocence of all three accused persons.
99. Hence, accused Manoj, Chaman and Manish are convicted of charge for the offence under section 120-B, 364 read with section 120-B, 364-A IPC read with section 120-B, 302 IPC read with section 120-B IPC and 201 IPC read with section 120-B IPC. Accused Manish is acquitted of charge for offence under section 411 IPC.
Announced in the open court (SANJAY KUMAR) today i.e. 11.03.2011 ASJ-01 (NW),ROHINI COURTS: DELHI.
STATE VS MANOJ ETC.//FIR NO. 346/05 PSNANGLOI//U/S. 302/364A/365/201/120B/34 IPC.