Delhi District Court
State vs . Manish Kumar And Others on 30 May, 2013
SC No.44/09
FIR No.50/08
PS:Palam Airport
State Vs. Manish Kumar and others
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 44/09
FIR No. : 50/08
Police Station : Palam Airport
Under Section : 302/364/397/392/394/201/3
4 IPC and under section 25
Arms Act
Received on assignment : 15.04.2009
Reserved for orders on : 22.05.2013
Judgment announced on : 30.05.2013
State Vs. Manish
S/o Sh. Sh. Kamal Singh
R/o 20/60, East Mehram Nagar
Delhi110010
Monu
S/o Late Sh. Sher Singh
R/o T11/60, East Mehram Nagar
Delhi
Anil Kumar
S/o Sh. Ajit Singh
R/o S313/95, East Mehram Nagar
Delhi.
SC No.44/09 Page 1 of 129
SC No.44/09
FIR No.50/08
PS:Palam Airport
State Vs. Manish Kumar and others
J U D G E M E N T
1. Accused have been sent up for trial for the offence punishable under section 364/397/302/201/392/394/34 IPC and U/s 25 Arms Act.
2. Brief facts in the nutshell are that Shri N.K. Afzal, co brother of Shri K.T. Sameer (since deceased) had lodged a missing report of Shri K.T. Sameer. It was disclosed in the complaint that Shri K.T. Sameer, cobrother of the complainant was holding a passport no. Z1158345 and was originally a resident of Mahe and, thereafter, he shifted to Riyadh, Saudi Arabia. It is further stated that Shri K.T. Sameer was on a business tour in India and he reached Mumbai on 07.10.2008 from Riyadh and travelled to Ahmedabad on 10.10.2008 and from there he flew to Delhi by Spice Jet Airways SG218 and reached Delhi in the evening at around 7.30 p.m. The said Shri K.T. Sameer (since deceased) had contacted his officer In Riyadh at phone no. 00966501084566 from his local mobile phone no. 9846202449 which happened to be used by him during his visit to India and the said local phone belonged to his nephew Shri Ajmal Abdullah resident of Cochin, Kerela and it was reported from his office in Riyadh that an amount of Saudi Riyal 1599.29 SC No.44/09 Page 2 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others from Axis Bank and Saudi Riyal 399.29, 417.82 and 102.77 in different spells have been withdrawn from State Bank of India, Palam Colony, Dwarka through a debit card of Al Rajhi Bank, Riyadh. The said debit card was issued in the name of sponsor of Shri K.T. Sameer in Riyadh. The said debit card was used by Shri K.T. Sameer (since deceased) for business purpose with the consent of his sponsors and Shri K.T. Sameer (since deceased) had come to Delhi to meet Shri Sushil Kumar of Camel Knitting and Textile Mills, Ludhiana and the mobile phone number of said Shri Sushil Kumar was 09814381624 and Shri K.T. Sameer (since deceased) was scheduled to reach Riyadh on 12.10.2008 by Air India flight but he had not reached there and went missing since then and there is no information about his whereabouts. On the basis of this complaint, duty officer handed over the complaint to SI Krishan Kumar and the said SI Krishan Kumar made his endorsement on it and handed over the same to duty officer who lodged the present FIR and investigation was handed over to Insp. Sunil Kumar. During investigation, Insp. Sunil Kumar stated to have collected call details of Shri K.T. Sameer (since deceased) for dated 10.10.2008 and from the mobile of Shri K.T. Sameer (since deceased) bearing number 9846202449 calls were made to three numbers 9213534186, 9818152052 and 9268397468 in Delhi. During SC No.44/09 Page 3 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others investigation, owner's details of mobile no. 9213534186 and 9268397468 were obtained and it transpired that accused persons had made calls from the mobile of Shri K.T. Sameer (since deceased) on these numbers.
3. It is further alleged that on 20.10.2008, on the information of secret informer, accused Manish Kumar and Monu were arrested and after interrogation, their separate disclosure statements were recorded and accused persons were arrested and their personal search was conducted and other documents were prepared. During investigation, it was disclosed by the accused that accused Manish Kumar, Monu and Anil Kumar had taken Shri K.T. Sameer (since deceased) on 10.10.2008 in Taxi bearing registration no. DL1T6001 and after committing robbery, murdered Shri K.T. Sameer and his dead body was thrown in the area of police station Bilaspur, District Gurgaon. During investigation, it transpired that a case FIR No. 160/08 under Section 302/201 IPC had been lodged at police station Bilas Pur in this regard and photographs of Shri K.T. Sameer and his clothes were identified by Dr. Shahir, brother of Shri K.T. Sameer (deceased). It is further alleged that on the basis of disclosure as well as pointing out memos, ATMs from which accused persons had withdrawn the amount were got SC No.44/09 Page 4 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others identified by accused Manish Kumar, and Monu and accused persons also got recovered sum of Rs.35,000/, Rs. 45,000/ and one mobile phone (PC) belonging to the deceased.
4. It is further alleged that on the information of secret informer, accused Anil Kumar was arrested from bus stand Mahipal Pur and during interrogation, accused Anil Kumar made disclosure statement and he was arrested in the present case and his personal search was conducted and other documents were prepared and during investigation, accused Anil Kumar made disclosure statement and got recovered the country made pistol as well as one dagger. It is further alleged that accused Anil Kumar also got recovered mobile phone Nokia Xpress Music belonging to Shri K.T. Sameer (deceased) and a sum of Rs.60,000/ which he had withdrawn by using the ATM card of the deceased and accused Manish Kumar also got recovered Taxi bearing no. DL1T6001 and during investigation, Taxi bearing no. DL1T6001 was examined by the CFSL team and CFSL team had taken the various samples from the spot and deposited the same with MHC(M). It is further alleged that during investigation all the three accused persons got identified the place where the dead body of deceased was thrown and pointing out memos were prepared accordingly. It is further SC No.44/09 Page 5 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others alleged that during investigation accused Manish Kumar, Monu and Anil Kumar got identified the various ATM centres from where they had withdrawn the amount by using the ATM card no. 4909801160227752 belonging to Nasir Ali of Al Rajhi Bank and other articles belonging to the deceased were thrown in the river Yamuna which could not be traced. It is further alleged that during the course of investigation, statement of witnesses were recorded and arrival of deceased Shri K.T. Sameer was confirmed and the transaction carried out by the accused by using the ATM of deceased from the concerned bank were also confirmed and such details collected. During investigation, blood sample of Mohd. Zamil, son of deceased was taken at AIIMS and SI Sunil Kumar stated to have received the file of case FIR No. 160/08, under Section 302/201 IPC, PS Bilas Pur and exhibits collected by CFSL team were deposited in the CFSL alongwith CFSL form and sample seal. On completion of necessary investigation, accused persons were chargesheeted.
5. After supplying copies to the accused persons as per law, case was committed to the court of sessions.
6. After due deliberation, charge under Section 302/364/392/394/201/34 IPC was framed against all the accused SC No.44/09 Page 6 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others persons and charge under section 397 IPC as well as under
section 25 Arms Act was framed against accused Anil to which they pleaded not guilty and claimed trial.
7. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered 56 witnesses in all in support of its case. On completion of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C. wherein they controverted the entire evidence as false and fabricated and claimed that they have been falsely implicated in this case. Accused persons lead defence evidence, thereafter, final arguments were advanced.
8. I have gone through the entire records and carefully considered the matter.
9. Before proceedings further, I would like to discuss the evidence led by the prosecution to prove the case.
10. The particulars of the witnesses examined by the prosecution and documents proved by them respectively are as under: SC No.44/09 Page 7 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others LIST OF WITNESSES Witness no. Name of the witness examined PW1 Shri N.K. Afzal PW2 HC Harpal Singh PW3 HC Balwan Singh PW4 Ms. Rozy PW5 Shri Jagbir PW6 Dr. Rajender Singh,Principal Scientific Officer, Head of Physics Division, CFSL.
PW7 Shri Kaithal Shahir Ahmed
PW8 Ct. Raja Ram
PW9 Dr.B.B. Aggarwal, SMO General
Hospital Gurgaon.
PW10 Shri Anuj Bhatia, Nodal Officer,
Vodafone Mobile Services Ltd.
PW11 Dr. Ravi Bala Sharma, Medical
Officer, GH Rewari.
PW12 Shri Sajid K.V.
PW13 Ms. Vandana
PW14 Ms. Sharon Sethi, Branch Manager,
Standard Chartered Bank.
PW15 Ms. Kalpna Lall, Assistant Manager,
Clearing Department, HSBC Bank.
PW16 Ms. Anjula Narula, Deputy
Manager, SBI Dundahera Branch.
PW17 Ms. Binita R.C. Basu, Assistant Vice
SC No.44/09 Page 8 of 129
SC No.44/09
FIR No.50/08
PS:Palam Airport
State Vs. Manish Kumar and others
President, Axis Bank, HeadATM.
PW18 Shri Ajay Prakash, Lab Technician. PW19 Shri Ajmal Abdullah PW20 Shri Hukam Singh PW21 Gyan Mohd. Maulvi PW22 SI Prakash Chand.
PW23 HC Manoj Kumar.
PW24 HC Vikas Prateek PW25 HC Ravinder Singh PW26 Shri Suresh Kumar PW27 Shri Gautam Roy, Senior Scientific Officer, CFSL, CBI.
PW28 SI Zabbar Singh PW29 Ms. Shweta Wadhwa, Customer Services Manager, HSBC Bank.
PW30 Shri Sumant Rautela, Station Manager, Spice Jet Airlines.
PW31 SI Kehar Singh PW32 ASI Brahm Prakash PW33 Ct. Mewa Singh PW34 Shri Satya Prakash PW35 Ct. Satish Kumar PW36 Shri Pawan Kumar, Photographer PW37 HC Ishwar Singh PW38 Shri Noufal PW39 Dr. Sunil Kumar SI SC No.44/09 Page 9 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others PW40 SI Krishan Kumar PW41 Shri Mahavir PW42 Ct. Tilak Raj PW43 Dr. B.K. Mohapatra, Senior Scientific Officer, Biology, CFSL.
PW44 Shri Naveen Kumar PW45 ASI Kamlesh Kumar PW46 Shri R.K. Singh, Nodal Officer, Bharti Airtel Ltd.
PW47 Shri M.N. Vijayan,Nodal Officer, Tata Teleservices Ltd.
PW48 Shri Suresh Kumar Singhla, Senior Scientific Officer, CFSL.
PW49 Shri Sunil Kumar, Nodal Officer, MTNL.
PW50 Shri A.R. Arora, Senior Scientific Officer, CFSL.
PW51 Shri Ram Kishan, UDC, Burari Transport Authority.
PW52 Shri Sanjeev Kumar Jagota, UDC, Sheikh Sarai Transport Authority.
PW53 Insp. Sunil Kumar.
PW54 Shri Sushil Kumar PW55 Shri Sanjay Kumar.
PW56 Deepak, Alternate Nodal Officer, Vodaphone Mobile Services.
SC No.44/09 Page 10 of 129 SC No.44/09 FIR No.50/08PS:Palam Airport State Vs. Manish Kumar and others DETAILS OF DOCUMENTS EXHIBITED BY THE WITNESSES Exhibit No. Date of Details of exhibited documents.
Statement PW1 : Shri N.K. Afzal Ex.PW1/A 27.08.2009 DD No. 43 (Missing Report) Ex.PW1/B 27.08.2009 Written complaint regarding missing.
PW2: HC Harpal Singh No exhibits PW3: HC Balwan Singh Ex.PW3/A 27.08.2009 Copy of FIR no. 50/08, PS Palam Airport Ex.PW3/B 27.08.2009 Endorsement on the Rukka.
PW4: Ms. Rozy No exhibits PW5: Shri Jagbir No exhibits PW6: Dr. Rajender Singh Ex.PW6/A 09.10.2009 Seizure memo of piece of rear seat cover and two pieces of floor of carpet of the taxi which were blood stained.
Ex.P1 09.10.2009 Piece of seat cover Ex.P2 09.10.2009 Floor carpets of blackish grey colour SC No.44/09 Page 11 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others PW7: Shri Kaithal Shahir Ahmed Ex.PW7/A 09.10.2009 Disclosure statement of accused Manish Ex.PW7/B 09.10.2009 Disclosure statement of accused Monu Ex.PW7/C 09.10.2009 Seizure memo of Rs.35,000/ kept in a handkerchief Ex.PW7/D 09.10.2009 Seizure memo of Rs.45,000/ and one pocket PC (mobile phone) make "I Model JASJAR". Ex.P1 09.10.2009 Rs.35,000/ in cash (70 notes of rupees 500 denomination each) Ex.P2 09.10.2009 Handkerchief in which Rs.35,000/ were tied. Ex.P3 09.10.2009 Rs.45,000/ in cash (90 notes of rupees 500 denomination each). Ex.P4 09.10.2009 Mobile phone make IMATE, Model JASJAR. PW8 : Ct. Raja Ram
Ex.PW8/DA 26.11.2009 Arrest memo of accused Manish Ex.PW8/DB 26.11.2009 Arrest memo of accused Monu.
PW9: Dr.B.B. Chaudhary Ex.PW9/A 26.11.2009 An application for post mortem. Ex.PW9/B 26.11.2009 Post mortem report. Ex.PW9/C & 26.11.2009 Xray plates.
SC No.44/09 Page 12 of 129 SC No.44/09 FIR No.50/08PS:Palam Airport State Vs. Manish Kumar and others Ex.PW9/D Ex.P5 26.11.2009 One blood stained striped shirt, one (collectively) baniyan, one blue coloured jeans, one underwear, one red colour handkerchief and one piece of rope.
Ex.P6 26.11.2009 Bullet recovered from the dead body of deceased.
PW10 : Mr. Anuj Bhatia Ex.PW10/A 26.11.2009 Covering email letter providing call details of phone no. 9846202449 Ex.PW10/B 26.11.2009 Call details of phone no. 9846202449 w.e.f 01.04.2008 to 15.10.2008 PW11: Dr. Ravi Bala Sharma Ex.PW11/A 30.11.2009 Permission by the doctor for doing the cremation of deceased.
PW12: Mr. Sajid K.V. Ex.PW12/A 30.11.2009 Seizure memo of Nokia Xpress Music mobile.
Ex.P5 30.11.2009 Mobile phone partially broken from one side which was recovered at the instance of accused Anil from his house.
PW13 Ms. Vandana No exhibits PW14: Ms. Sharon Sethi Ex.PW14/A 10.02.2010 Letter for providing relevant information of ATM roll of the relevant period displaying details of transaction.
SC No.44/09 Page 13 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Ex.PW14/B 10.02.2010 Computerized ATM roll Ex.PW14/C 10.02.2010 CDs. PW15 : Ms. Kalpna Lall Ex.PW15/A 10.02.2010 Letter giving reply regarding the ATM card no. 4909801160227752 of Al Rajhi Bank Saudi Arabia which was a hot (blocked) card and was destroyed. PW16: Ms. Anjula Narula Ex.PW16/A 10.02.2010 Letter for providing withdrawal from SBI ATM at Vinod Service Station, Airport Road leading to Radisson Hotel. Ex.PW16/B 10.02.2010 Computerized statement of withdrawal from ATM PW17: Ms. Binita R.C. Basu Ex.PW17/A 10.02.2010 Confirmation of ATM transaction made from Axis Bank ATM at Gol Dakhana, New Delhi. PW18 : Shri Ajay Prakash Ex.PW18/A 01.04.2010 Consent form for taking the blood sample of Mohd. Zamil for DNA test. PW19: Shri Ajmal Abdulla Ex.PW19/A 01.04.2010 Letter of Shri Azmal Abdullah giving information that the mobile no. 9846202449 was in his name and the same was being used by deceased SC No.44/09 Page 14 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others PW20: Shri Hukam Singh Ex.PW20/A 03.04.2010 Statement of Hukum Singh PW21 : Gyan Mohd.Maulvi No exhibits PW22: SI Prakash Chand Ex.PW22/A 03.04.2010 Copy of FIR no. 160/08, PS Bilas Pur Ex.PW22/B 03.04.2010 Endorsement made on rukka. PW23 :HC Manoj Kumar Ex.PW23/A 05.04.2010 Scaled site plan PW24: HC Vikas Prateek Ex.PW24/A 05.04.2010 Entry in the register no.19 regarding deposition of case property Ex.PW24/B 05.04.2010 Sending of case property vide RC no. 183/21 to the SHO, Palam Airport, New Delhi. PW25: HC Ravinder Singh No exhibits PW26: Shri Suresh Kumar No exhibits PW27: Shri Gautam Roy
Ex.PW27/A1 09.08.2010 Photographs of the taxi to Ex.PW27/A11 PW28: SI Zabbar Singh Ex.PW28/A 09.08.2010 Sketch of country made pistol Ex.PW28/B 09.08.2010 Sketch of Khanjar (dagger) SC No.44/09 Page 15 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Ex.PW28/C 09.08.2010 Seizure memo of Country made pistol Ex.PW28/D 09.08.2010 Seizure memo of Khanjar (dagger) Ex.P7 09.08.2010 Country made pistol recovered from the possession of accused Anil.
Ex.P8 09.08.2010 One dagger (with cover) which was got recovered by accused Anil.
Ex.P9 09.08.2010 Rs. 60,000/ ( 20 notes of Rs.100/ each and 116 notes of Rs.500/ each).
PW29: Ms. Shweta Wadhwa Ex.PW29/A 23.09.2010 Letter for providing details of withdrawal from HSBC Bank of ATM Card 4909801160227752 for the period 11.10.2008 to 13.10.2008.
Ex.PW29/B 23.09.2010 Computerized statement of withdrawal from ATM PW30: Shri Sumant Rautela Ex.PW30/A 09.11.2010 Covering letter for providing of passengers manifesto of flight no.
218Ex.PW30/B 09.11.2010 Passenger manifesto provided by Spice Jet Airlines PW31: SI Kehar Singh No exhibits PW32: ASI Brahm Prakash Ex.PW32/A 09.11.2010 Seizure memo of blood stained soil and ring SC No.44/09 Page 16 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Ex.P10 09.11.2010 Ring bearing word "Wahida"
inscribed on it.
Ex.P11 09.11.2010 One torn cloth pulanda and some loose earth/soil kept in a small polythene.
PW33: Ct. Mewa Singh Ex.PW33/A 09.11.2010 Seizure memo of the articles handed over by the doctor after the postmortem of deceased.
PW34: Shri Satya Prakash Ex.PW34/A 07.01.2011 Reply of Mr. Satya Prakash (PW34), the owner of taxi no. DL1T6001 and he replied vide Ex.PW34/A that on 10.10.2008 at 7.00 p.m., the said taxi was given to accused Manish.
PW35 Ct. Satish Kumar No exhibits PW36: Shri Pawan Kumar MarkPW36/ 04.02.2011 Photographs of the dead body. 1 to Mark PW36/12 PW37: HC Ishwar Singh Ex.PW37/A 05.03.2011 Entry in register no. 19 at serial no.
396 regarding deposition of case property by I.O./Insp. Sunil Kumar :
1. Four sealed parcels on 20.10.2008, Rs.35,000/ (cash), one Taxi no. DL1T6002 SC No.44/09 Page 17 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others alongwith articles of personal search of accused persons .
2. Four sealed parcels on 21.10.2008, Rs.60,000/ (cash).
3. Two sealed parcels on 22.10.2008 two sealed parcels with the seal of 'ZS' Ex.PW37/B 05.03.2011 Entry regarding deposition of Motorola Mobile phone by I.O./Insp.
Sunil Gupta.
Ex.PW37/C 05.03.2011 Entry at serial no. 418 regarding deposition of case property on 15.12.2008 of four sealed parcels out of which two were sealed with the seal of hospital and two with the seal of BO.
Ex.PW37/D 05.03.2011 Copy of the RC vide which seven sealed parcels alongwith four sample seals were sent to CFSL on 23.12.2008.
PW38: Shri Noufal No exhibits PW39 : Dr. Sunil Kumar SI Ex.PW39/A 05.03.2011 Endorsement on the statement of Hukum Singh.
Ex.PW39/B 05.03.2011 Inquest proceedings Ex.PW39/C 05.03.2011 Final report Ex.PW39/D 05.03.2011 Site plan Ex.P10 05.03.2011 Ring bearing word "Wahida" SC No.44/09 Page 18 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others inscribed on it. PW40 : SI Krishan Kumar Ex.PW40/A 25.03.2011 Endorsement on the written complaint regarding missing of deceased. PW41: Shri Mahavir No exhibits PW42: Ct. Tilak Raj No exhibits PW43: Dr. B.K. Mohapatra Ex.PW43/A 04.05.2011 Report regarding DNA finger printing PW44: Shri Naveen Kumar No exhibits PW45 : ASI Kamlesh Kumar Ex.PW45/A 14.05.2011 Personal search of accused Manish Ex.PW45/B 14.05.2011 Personal search of accused Monu Ex.PW45/C 14.05.2011 Seizure memo of Taxi no. DL1T6001.
Ex.PW45/D 14.05.2011 Arrest memo of accused Anil Kumar. Ex.PW45/E 14.05.2011 Personal search memo of accused Anil Kumar.
Ex.PW45/F 14.05.2011 Disclosure statement of accused Anil Kumar Ex.PW45/G 14.05.2011 Pointing out memo of Toll Tax Booth, DelhiGurgaon Border.
Ex.PW45/H 14.05.2011 Pointing out memo of ATM of ICICI SC No.44/09 Page 19 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others bank and ATM of SBI Bank, Sushant Lok ParkI, Gurgaon from where the accused persons had withdrawn the money by using the ATM card of deceased.
Ex.PW45/I 14.05.2011 Pointing out memo of Toll Tax khirki dhola.
Ex.PW45/J 14.05.2011 Pointing out memo vide which the placed was pointed out where the dead body of deceased was thrown by the accused persons.
Ex.PW45/K 14.05.2011 Pointing out memo of ATM, SBI, CNG Station, IGI Airport from where the accused persons had withdrawn the money by using the ATM card of deceased.
Ex.PW45/L 14.05.2011 Pointing out memo of ATM, HSBC
Bank, Shanti Path from where the
accused persons had withdrawn Rs.
5,000/, Rs.10,000/, Rs.50,000/ by using the ATM card of deceased.
Ex.PW45/M 14.05.2011 Pointing out memo of ATM, Axis Bank, Gol Dakh khana from where the accused persons had withdrawn Rs.40,000/ and Rs.60,000/ by using the ATM card of deceased.
Ex.PW45/N 14.05.2011 Pointing out memo of ATM, HSBC Bank, Mega CNG Station, Patparganj from where no money could be withdrawn as the ATM card of deceased was retained by the SC No.44/09 Page 20 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others machine.
Ex.PW45/O 14.05.2011 Pointing out memo of ATM, Standard Chartered Bank from where the accused persons had withdrawn Rs.
10,000/ by using the ATM card of deceased.
Ex.PW45/P 14.05.2011 Pointing out memo of the place between concrete pillars no. 2 & 3 where the accused Manish had thrown the attachi, clothes, SIM card and another ATM card of deceased.
Ex.PW45/Q 14.05.2011 Seizure memo of Motorola Mobile phone being used by accused Anil Kumar by using the no. 9868415221.
Ex.PW45/R 14.05.2011 Seizure memo of Maruti Esteem Car no. DL3CK2997.
Ex.PW45/S 14.05.2011 Seizure memo of one mobile phone no. 9968562955 of accused Monu.
Ex.PW45/T 14.05.2011 Seizure memo of one mobile phone
no. 9818152052 being used by
accused Manish.
Ex.P12 14.05.2011 One Black coloured Samsung Mobile
Phone.
Ex.P13 14.05.2011 One Black and Grey coloured Nokia
mobile phone
Ex.P14 14.05.2011 One Dark Gray coloured Motorola
Phone
Ex.P15 14.05.2011 Rs.35,000/ ( 70 notes of Rs.500/
each)
SC No.44/09 Page 21 of 129
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PS:Palam Airport
State Vs. Manish Kumar and others
PW46: Shri R.K. Singh
Ex.PW46/A 06.07.2011 Customer Application Form with ID
in respect of mobile phone no.
9818152052 in the name of Naveen
Kumar.
Ex.PW46/B 06.07.2011 Call details in respect of mobile
phone no. 9818152052.
Ex.PW46/C 06.07.2011 Certificate under Section 65B of
Indian Evidence Act in respect of call
details of mobile phone no.
9818152052.
PW47: Shri M.N. Vijayan
Ex.PW47/A 06.07.2011 Customer application form for
providing the details in respect of
mobile phone no. 9213534186 which
was in the name of one Jagbir Singh
Ex.PW47/B 06.07.2011 Computerized copy of call details
duly certified in respect of mobile
no. 9213534186.
Ex.PW47/C 06.07.2011 Customer application form for
providing the details in respect of
mobile phone no. 9268397468 which
was in the name of one Suresh
Kumar.
Ex.PW47/D 06.07.2011 Computerized copy of call details duly certified in respect of mobile no.
9268397468.
Ex.PW47/E 06.07.2011 Certificate under Section 65B of Indian Evidence Act in respect of call details of mobile phone no.
SC No.44/09 Page 22 of 129 SC No.44/09 FIR No.50/08PS:Palam Airport State Vs. Manish Kumar and others 9268397468.
PW48 : Shri Suresh Kumar Singla
Ex.PW48/A 26.07.2011 CFSL report.
PW49 : Shri Sunil Kumar
Ex.PW49/A 26.07.2011 Letter of Nodal Officer vide which it
is stated that the call details of
mobile phone nos. 9868415221 and
9968562955 for the period 08.10.2008
to 15.10.2008 could not be produced
as CDR are older than one year.
Ex.PW49/B 26.07.2011 Customer application form in
respect of mobile phone no.
9868415221 alongwith ID proof.
Ex.PW49/C 26.07.2011 Customer application form in
respect of mobile phone no.
9968562955 alongwith ID proof.
PW50: Shri A.R. Arora
Ex.PW50/A 26.07.2011 CFSL report in respect of country
made pistol.
PW51: Shri Ram Kishan
Ex.PW51/A 26.07.2011 Certificate issued by the MLO, Burari,
Transport Authority that the RC of
Taxi no. DL1T6001 was in the name
of one Sat Prakash.
PW52 : Shri Sanjeev Kumar Jagota
Ex.PW52/A 26.07.2011 Document proving the RC of Maruti
Esteem car bearing no. DL3CK2997
in the name of accused Monu.
SC No.44/09 Page 23 of 129
SC No.44/09
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PS:Palam Airport
State Vs. Manish Kumar and others
PW53 : Insp. Sunil Kumar
Ex.PW53/A 26.07.2011 Supplementary disclosure statement
of accused Anil Kumar
Ex.PW53/B 26.07.2011 Supplementary disclosure statement
of accused Anil Kumar
Ex.PW53/C 26.07.2011 Supplementary disclosure statement
of accused Manish.
Ex.PW53/D 26.07.2011 Supplementary disclosure statement of accused Monu.
Ex.PW53/E 26.07.2011 A Letter given by Dr. Kaithal Shahir Ahmed containing written by partner of Muthela Trading Co., Saudi Arabia, affirming that ATM card no.
4909801160227752 was given by the company to deceased K.T. Sameer.
Ex.PW53/F 26.07.2011 Rough site plan of the place from where country made pistol and dagger (khanjar) at point 'A' and Rs.
60,000/ (cash) and mobile phone make Nokia Xpress Music were recovered.
Ex.PW53/G 26.07.2011 Rough site plan of the place from where pocket PC (mobile phone) make "I Mode JASJAR" and Rs.
45,000/ cash were recovered.
Ex.PW53/H 26.07.2011 Rough site plan of the place from where Taxi no. DL1T6001 was recovered.
Ex.PW53/I 26.07.2011 Rough site plan of the place from where Rs.35,000/ were recovered.
SC No.44/09 Page 24 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Ex.PX1 26.09.2011 Maruti Esteem Car Ex.Px2 26.09.2011 Ambassador Taxi PW54 : Shri Sushil Kumar No exhibits PW55 : Shri Sanjay Kumar Ex.PW55/A 17.11.2011 Sanction accorded under Section 39 of the Arms Act. PW56 : Shri Deepak Ex.PW56/A 14.05.2012 Call details of mobile phone No. 9846202449 fro the period from 01.04.2009 to 15.10.2008. Ex. PW56/B 14.05.2012 Cell ID Address. Ex.PW56/C 14.05.2012 Certificate under section 65B
11. PW1 Sh. N. K. Afzal is the cobrother of deceased K. T. Sameer. He deposed that deceased K. T. Sameer was a resident of Riyadh, Saudi Arabia and was doing some business there and on 07.10.2008, the deceased had reached Mumbai from Riyadh and went to Ahmedabad. Thereafter, on 10.10.2008, deceased came to Delhi by spice Jet Airway. During that time, deceased was having local mobile phone bearing no. 9846202449 which belonged to his nephew Ajmal Abdullah. Deceased K. T. Sameer had to go back to Riyadh on 12.10.2008 but he did not reach Riyadh and his mobile phone was also SC No.44/09 Page 25 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others found switched off. On being informed by the office people of deceased K. T. Sameer that money had been withdrawn from ATM Cards of deceased K. T. Sameer from some areas surrounding Palam, Delhi, he came to Delhi and lodged missing DD entry of deceased K. T. Sameer. He proved the said DD as Ex. PW1/A. He also proved his complaint as Ex. PW1/B. In crossexamination he deposed that he had not received the statement of account of Sh. K. T. Sameer on 14.10.2008 and the same was received by him on 1516.10.2008 and that he had not signed any paper till 14.10.2008 except his complaint Ex. PW1/B.
12. PW2 HC Harpal Singh is the Duty Officer who had recorded the DD entry no. 43, Ex. PW1/A regarding the missing of deceased K. T. Sameer.
13. PW3 HC Balwan Singh is the Duty Officer who had recorded the FIR Ex. PW3/A on the basis of complaint Ex. PW1/B given by complainant N. K. Afzal and made his endorsement Ex. PW3/B on the same.
14. PW4 Ms. Rozy was declared hostile by Ld. Addl. PP for the State and despite lengthy crossexamination by Ld. Addl.
SC No.44/09 Page 26 of 129 SC No.44/09 FIR No.50/08PS:Palam Airport State Vs. Manish Kumar and others PP for the State to bring out that accused Anil had made call to her on 08.10.2008 from the mobile phone no. 9846202449 belonging to deceased K. T. Sameer but nothing material could be brought out and she denied all the suggestions put by Ld. Addl. PP for the State. In the crossexamination she admitted that the mobile phone number 9213534186 was for her home use.
15. PW5 Jagbir Singh, father of PW 4 Rozy was also declared hostile and was crossexamined by Ld. Addl. PP for the State. In the crossexamination conducted by Ld. Addl. PP for the State he admitted that he had purchased a mobile phone number of Tata Cellular company in the year 2008 before Diwali. Although, he could not admit or deny the number of mobile phone being 9213534186 but admitted that he may have given copy of his ration card or I card at the time of purchase of said mobile phone.
16. PW6 Dr. Rajender Singh, principal Scientific Officer, HOD Physics, CFSL, CBI, New Delhi had physically examined the vehicle DL 1 T 6001 make Ambassador Car on 22.10.2008 along with other experts of CFSL, namely, Sh. S. K. Singhla, Sr. Scientific Officer (Biology and DNA Expert), Sh. Gautam Rai, Sr. SC No.44/09 Page 27 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Scientific Officer (Photo and Scientific Aid Division), Sh. U. S. Thakur, Biology Expert and Sh. Veenu T. Abrahem, Physics expert at PS Palam Airport and had handed over the physical clues i.e. cutting of piece of rear seat cover and two pieces of blood stained floor carpet which were collected by the IO.
17. PW7 Kaithal Shahir Ahmed is the younger brother of deceased K. T. Sameer. He deposed that on 10.10.2008, his deceased brother K. T. Sameer had come to Delhi from Ahmedabad and after reaching Delhi at about 12.30 night, he had made a telephonic call to one of his known in Saudi Arabai and thereafter, he could not be contacted and on 15.10.2008, brother in law of deceased got recorded a case in PS Palam Airport. He came to Delhi on 16.10.2008 and directly went to PS Palam Airport to make inquiries about the case. On 20.10.2008, he joined the investigation with IO Inspector Sunil Kumar and in his presence, accused Manish and Monu were arrested by the IO on the pointing out of a secret informer and on being interrogated by the IO, they had made their disclosure statement regarding commission of offence. Thereafter, he along with Ct. Raja Ram went to PS Bilaspur, Gurgaon where he identified the dead body of his brother from the photographs and clothes. Thereafter, he further joined investigation with the SC No.44/09 Page 28 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others IO when accused Manish pointed towards his house no. 20/60 and got recovered Rs.35,000/ (seventy notes of Rs.500/ each) tied in a blue colour check hankey from a small ''aala'' (almirah). The same was seized by the IO vide memo Ex. PW 7/C. Thereafter, accused Monu pointed towards his house no. 11/60, East Mehram Nagar and got recovered one plastic bag from underneath the bed in one room and from the said bag he got recovered one mobile phone IMATE JASJAR and forty five thousand cash i.e 90 currency notes of Rs. 500/ each. He identified the mobile phone to be that of his brother. The mobile phone and the money was seized by the IO vide memo Ex. PW 7/D. He identified the case property i.e. money and the mobile phone got recovered by accused Manish and Monu.
18. In the crossexamination, he stated that the disclosure statements of accused Manish and Monu were recorded at the spot from where the accused persons were arrested while sitting on a table and chair but he could not state as to who arranged the same. He admitted that public persons were present at the spot but could not state whether they were asked to join investigation by the IO or not as IO had talked to some public persons in rapid Hindi which he could not understand. He admitted that the pulandas were not sealed SC No.44/09 Page 29 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others before him. He could not state whether the house of accused Manish and Monu were single storey or double storey as they went there at night.
19. PW8 Ct. Raja Ram had joined the investigation with IO Inspector Sunil Kumar and PW7 Kaithal Shahir Ahmed. He went to PS Bilaspur, Haryana along with PW7 Kaithal Shahir Ahmed where on inquiries they came to know that FIR no. 160/08 U/s 302/201 IPC was registered there. IO Dr. SI Sunil Kumar showed the photographs of the deceased and on seeing the photographs, PW7 Kethal Sahir Ahmed identified the dead body to be of his brother.
20. PW9 Dr. B. B. Aggarwal, SMO General Hospital, Gurgaon, Haryana had conducted the post mortem on the body of deceased on 11.10.2008 and proved the report as Ex. PW 9/B, request for post mortem as Ex. PW 9/A and xray plates as Ex. PW9/C and Ex. PW9/D. He opined the cause of death to be ''due to extensive injury to vital part i.e. heart. Injuries were antemortem in nature and sufficient to cause death in ordinary course of events which was due to fire arm injury.'' The probable duration between injury and death instantaneous and between death and postmortem was 1236 hours.
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21. PW10 Anuj Bhatia, Nodal Officer Vodafone mobile Services Ltd. proved the call details of mobile phone number 9846202449 for the period 01.4.2008 to 15.10.2008 as Ex. PW 10/B which were supplied to the IO by Sh. Gulshan Arora, the then Nodal Officer on the request of the IO via email. The print of covering email letter was proved as Ex. PW10/A. He deposed that the calls made on 10.10.2008 at 22.42 hours and 22.54 hours were made from area Syndicate House, Old Rohtak Road, Delhi and the call made on 11.10.2008 at 0031 hours (am) was from area Gurgaon IFFCO Nagar, Sector17. The call made on 11.10.2008 at 00.31 hours (am) was made from area Gurgaon, Sukhrali Chowk and all of these were outgoing calls.
22. PW11 Dr/ Ravi Bala Sharma, Medical Officer GH Rewari, Haryana had assisted PW9 in the post mortem of deceased K. T. Sameer and the post mortem report Ex. PW 9/B was in his handwriting. He had also given permission in writing for cremation of the deceased as per Muslim customs after 72 hours of the postmortem.
23. PW12 Sajid K V is the cobrother of deceased K T Sameer. He deposed that deceased K. T. Sameer came to Indian SC No.44/09 Page 31 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others on 6/7.10.2008 and he was also in India at that time. On 10.10.2008, he called K. T. Sameer on his phone and deceased K. T. Sameer told him that he was in Ahmedabad at that time and was to leave for Delhi on the same day. He also told him to wait for him at airport on 11.10.2008 but when he did not reach Bombay on 11.10.2008, he tried to contact him on his mobile but his mobile phone was not reachable. On 12.10.2008, when deceased K. T. Sameer did not return to Riyadh, his wife asked him to come to Delhi and ascertain his whereabouts. He came to Delhi on 12.10.2008 and called his cobrother N. K. Afzal who also reached Delhi on 13.10.2008 and both of them went to PS Palam Airport and lodged complaint there regarding the missing of deceased K. T. Sameer, thereafter, on 16/17.10.2008, on coming to know that somebody was withdrawing amount from the ATM cards of employer of deceased K. T. Sameer, he called the statement of account in respect of said withdrawal from Riyadh through fax. Thereafter, he along with N K Afzal kept on visiting PS Palam Airport to know about deceased K. T. Sameer. He further deposed that on 20.10.2008, he saw accused Anil and Monu in PS Palam Airport and on being asked by the police officials, he had accompanied the police party along with accused Anil to the house of accused Anil from where accused Anil got recovered one Nokia Xpress Music from a shelf like SC No.44/09 Page 32 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others structure in a room of his house. He identified the phone to be of deceased K. T. Sameer.
24. He was declared hostile and was crossexamined by Ld. Addl. PP for the State on some points and during cross examination, he admitted that he came to know in the PS that accused Anil, Monu and Manish had killed deceased K. T. Sameer in Manesar for robbery and had thrown his dead body there. He also admitted that accused Anil had disclosed in his presence that he can get the mobile phone recovered from his house, however, he was not sure about the date of recovery to be 21st or 20th of October, 2008, though he stated that the documents regarding recovery were prepared on the day when recovery was effected and he had also signed them on the same day, as one year had passed, he was not sure about the initials of seal to be SZ or ZS, however, it was of two letters i.e. S and Z. He admitted that he had also seen accused Manish in the PS at night but after seeing accused Anil and Monu. He identified the mobile phone make Nokia Xpress music got recovered by accused Anil as Ex. P5.
25. During crossexamination by Ld. Defence Counsel for accused Manish and Monu, he stated that when accused Anil SC No.44/09 Page 33 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others got mobile phone of K. T. Sameer recovered from his house, he told the police that he had thrown the SIM along with other belongings of K. T. Sameer in Yamuna River and on this he himself understood that accused Anil along with other accused persons had killed K. T. Sameer. Police did not tell him that the accused persons had killed deceased, K. T. Sameer.
26. PW13 Vandana deposed that she was gifted a mobile phone by her father on 09.08.2008, however, she did not remember the number of said mobile phone. She further deposed that her real sister Preeti was married with a boy, living in Mehram Nagar and in the month of August, 2008, in a function at their home, his brother in law (Jija) Ravinder, his brother and father came to their home. She was declared hostile and was crossexamined by Ld. Addl. PP for the State at length. During crossexamination by Ld. Addl. PP for the state she stated that it may be possible that her mobile phone number was 9268397468. She admitted that the function at her home was on 10.10.2008 and accused Anil had also come in the said function and he had given his mobile phone number to her. However, she could not state whether the said mobile phone number was 9868415221. She also admitted that accused Anil is relative of in laws of her sister Preeti.
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27. PW14 Sh. Sharon Sethi, Branch Manager, Standard Chartered Bank, Vasant Vihar Branch, on request of IO dt. 23.10.2008 for providing the transaction details of ATM Card bearing no. 4909801160227752 of Mr. Nasir, vide his letter Ex. PW14/A provided the requisite information to the IO along with computerized ATM roll of the relevant period displaying details of transaction. Two CDS containing the video recording of ATM of the relevant period were also given to the police along with letter Ex. PW14/A. The computerized ATM roll is Ex. PW 14/B and the CDs are Ex. PW14/C collectively. He further deposed that Ex. PW14/B and Ex.PW14/C are authentic record of their bank.
28. PW15 Ms. Kalpana Lall, Assistant Manager, HSBC Bank deposed that on 23.10.2008, on the request of the IO to provide details of ATM card no. 4909801160227752 of Mr. Nasir, she had informed the IO vide her letter dt. 3.11.2008, Ex./ PW15/A that the said card was destroyed by the bank on 14.10.2008 as it was other bank card and was retained in Patpar Ganj ATM on 13.10.2008 for the reason that it was a hot card (blocked).
29. PW16 Anjula Narula, Deputy Manager SBI proved SC No.44/09 Page 35 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others the computerized statement of withdrawal regarding withdrawal ATM against ATM card no. 4909801160227752 of Mr. Nasir, from the SBI ATM at Vinod Service Station, Airport Road leading to Radisson Hotel on 11.10.2008 as Ex. PW 16/B which was supplied to IO by the then Manager Sh. R. S. Meena vide his letter Ex. PW 16/A.
30. PW17 Ms. Binita R. C. Basu, Assistant Vice President, Axis Bank, vide her letter Ex. PW17/A had provided the details of transactions made from Axis Bank ATM at Gole Dakhana, New Delhi through ATM card no. 4909801160227752 from 11.10.2008 at 5.49 hours to 13.10.2008 at 1.56 hrs.
31. PW18 Sh. Ajay Prakash, Lab Technician, DNA Fingerprinting Lab, Department of Forensic Medicine, AIIMS had collected the blood sample of one Zameel Mohd. S/o deceased K. T. M. Sameer for DNA profiling.
32. PW19 Sh. Ajmal Abdullah is the nephew of deceased K. T. Sameer whose mobile number i.e. 9846202449, deceased K. T. Sameer was using during his stay in India. He proved his letter Ex. PW19/A given by him to the police in this regard.
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33. PW20 Hukum Singh is the person who had first seen the dead body of deceased K. T. Sameer lying in the field near the wall of Kuber Farm and informed the police vide his statement Ex. PW20/A.
34. PW21 Gyan Mohd. Maulvi had performed the last rites of deceased K. T. Sameer at the request of Haryana Police Officials.
35. PW22 SI Prakash Chand is the duty officer of PS Bilas Pur, Distt. Gurgaon who had registered the FIR 160/2008, Ex. PW22/A, on receipt of rukka sent by SHO SI Sunil Kumar and made his endorsement Ex. PW22/B on the rukka.
36. PW23 HC Manoj Kuamr is the Draftsman of Haryana police who had prepared the site plan Ex. PW23/A of the place where the dead body of deceased K. T. Sameer was found lying.
37. PW24 HC Vikas Prateek is the MHC(M) of PS Bilaspur, Gurgaon with whom four sealed pulandas were got deposited by SHO SI Sunil Kumar on 11.10.2008 vide entry no. 88 in register no. 19, copy of which is Ex. PW 24/A and on SC No.44/09 Page 37 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others 15.12.2008, he had sent the said pulandas to SHO PS Palam Airport through RC no. 183/21 Ex. PW 23/B vide receipt Ex. PW 24/C.
38. PW25 HC Ravinder Singh of Haryana Police had delivered the copies of FIR no. 160/2008 registered at PS Bilas Pur to the concerned Illaka Magistrate and the senior officer.
39. PW26 Suresh Kumar is the father of PW13 Vandana. He deposed in the court that he had given a mobile phone to his daughter Vandana on her birthday. However, he could not give the mobile number of said phone. He, however, admitted that one day during the function of birthday of Vandana, she had received a call at about 1112 midnight and the said call was made by accused Anil who is brotherinlaw of his elder daughter Priti.
40. PW27 Gautam Roy is the Senior Scientific Officer who had taken 11 photographs of the Ambassador Car (Taxi) no. DL 1 T 6001, Ex. PW 27/A1 to Ex.PW27/A11 by digital camera at PS Palam Airport on 22.10.2008. He also signed the seizure memo of the piece of seat cover which was collected by Sh. S. K. Singla from the said car and was handed over to the police.
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41. PW28 SI Zabbar Singh had joined the investigation with the IO on 21.10.2008 when accused Anil Kumar led the police party to his house and got recovered a country made pistol, one dagger and Rs.60,000/ from his house.
42. PW29 Ms. Shweta Wadhwa is the Customer Services Manager, HSBC bank who had given the necessary details regarding withdrawals by ATM Card bearing no. 4909801160227752 from 11.10.2008 to 13.10.2008 to the IO vide her letter Ex. PW 29/A. The said details were proved by her as Ex. PW 29/B.
43. PW30 Sh. Sumant Rautela is the Station Manager, Spice Jet Airlines, IGI Airport who had given the system generated print out of passenger manifesto Ex. PW 30/B to the IO vide his letter Ex. PW 30/A.
44. PW31 SI Kehar Singh had delivered the letter, regarding sending a team for vehicle inspection to PS Palam Airport, at CFSL/CBI, GCO Complex, Lodhi Road on 21.10.2008.
45. PW32 ASI Brahm Prakash of PS Bilaspur, Distt. Gurgaon had joined the investigation with the IO after recovery SC No.44/09 Page 39 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others of dead body at village Binola near NH8 from where IO had lifted the blood stained soil and seized it vide memo Ex. PW 32/A.
46. PW33, Ct. Mewa Singh of PS Bilaspur, Distt. Gurgaon had also joined the investigation with the IO. He took the rukka given by SI Sunil Kumar to PS Bilaspur and got the FIR registered. Thereafter, on the instructions of the SHO, he took the dead body to Govt. Hospital, Gurgaon where after post mortem, the doctor had handed over two sealed pulandas to him which he handed over to the IO.
47. PW34, Satya Prakash is the brother of accused Manish and owner of Ambassador Car, bearing no. DL 1 T 6001 to whom the notice U/s 133 M V Act was given by the IO. Although, he admitted that the reply Ex. PW 34/A is in his handwriting and is signed by him but he denied all its contents and stated that it was written by him under the dictation and pressure of police. He was declared hostile and was cross examined by Ld. Addl. PP for the State but he did not change his stand.
48. PW35, Ct. Satish Kumar of Haryana Police had SC No.44/09 Page 40 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others delivered the four sealed parcels of this case at PS Palam Airport.
49. PW36, Pawan Kumar is the photographer, running his studio at Bilaspur Chowk, Gurgaon, who had taken 13 photographs (Mark PW 36/1 to PW36/13) of the dead body of deceased K. T. Sameer on the directions of police officials of PS Bilaspur.
50. PW37, HC Ishwar Singh is the MHC(M) with whom the case property of this case was deposited on different dates vide Ex. PW37/A to Ex.PW37/C. He had sent the exhibits of this case to CFSL Lodhi Road for expert opinion vide RC Ex. PW 37/D.
51. PW38, Noufal is the brother in law of deceased K. T. Sameer who had accompanied Mohd. Jameel, son of deceased K. T. Sameer for taking his blood sample for DNA profiling.
52. PW39, Dr. Sunil Kumar SI is the IO of the case FIR no. 160/2008 registered at PS Bilaspur Gurgaon after recovery of dead body. He got the case registered, lifted earth samples from the spot, got conducted the postmortem on the dead body of deceased and got its last rites conducted after 72 hours of the SC No.44/09 Page 41 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others post mortem. On 20.10.2008, when Kaithal Shahir Ahmed, brother of deceased came to him, he showed him the photographs of the dead body and on seeing the photographs Kaithal Shahir Ahmed identified the dead body to be of his brother. He also joined investigation with the IO of present case on 22.10.2008 when all the accused persons pointed out the place of throwing the dead body. He prepared his final report and handed over the same to the IO of present case.
53. PW40, SI Krishan Kumar is the IO to whom DD no. 43 regarding missing of deceased K. T. M. Sameer was handed over. He tried to locate the whereabouts of K. T. M. Sameer but could not find the same. On 15.10.2008, he gave a letter to ACP office for call records of mobile phone number of K. T. M. Sameer and after discussing with the senior officials made his endorsement on the complaint of Sh. Afjal and got the FIR registered.
54. PW41, Mahavir deposed in the court that accused Anil Kumar is known to him and he has sold his mobile phone to Anil Kumar for Rs.4,500/ and on the request of accused Anil Kumar, he had also given his SIM Card of mobile number 9968415221 to accused Anil Kumar for his personal use. He SC No.44/09 Page 42 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others further deposed that when he demanded the same from accused Anil Kumar, he told him that he has lost the same somewhere in Mumbai.
55. PW42, Ct. Tilak Raj had collected the proof of ownership of vehicle number DL 1 T 6001 and DL 3 CK 2997 from the concerned Transport Authority. He had also collected the CFSL report and sealed parcels from the CFSL, Lodhi Estate, New Delhi.
56. PW43, Dr. B. K. Mohapatra, Senior Scientific Officer Biology had prepared the DNA profiling report Ex. PW 43/A and as per his report, the DNA profile generated from the source of exhibits i.e. seat cover, shirt, banian, pants, underwear, piece of cloth and metallic piece is consistent as biological father of Mohd. Zameel son of deceased K. T. Sameer.
57. PW44, Naveen Kumar is the brother of accused Manish Kumar and the owner of mobile phone number 9818152052. He did not support the case of prosecution and was declared hostile by Ld. Addl. PP for the State. However, despite crossexamination by Ld. Addl. PP for the State, he did not change his stand.
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58. PW45, ASI Kamlesh Kuamr joined investigation with the IO on 20.10.2008 at the time of arrest of accused Manish and Monu and recoveries at their instance. He also joined the investigation on 21.10.2008 at the time of recoveries at the instance of accused Anil Kumar. He was also a witness to the inspection of taxi no. DL 1 T 6001 by the CFSL experts and pointing out of different places by the accused persons. He had also deposited the parcels at CFSL Lodhi Road vide RC no. 61/21/08. He proved the exhibits as discussed in the foregoing para no.10 of this judgment.
59. PW46 Sh. R. K. Singh, Nodal Officer Bharti Airtel Ltd. proved the customer application form along with ID proof of subscriber for mobile number 9818152052 in the name of Naveen Kumar S/o Sh. Kanwal Singh as Ex.PW46/A and call details from 01.10.2008 to 16.10.2008 as Ex.PW46/B.
60. PW47 Sh. M. N. Vijayan, Nodal Officer Tata Teleservice Ltd. proved the customer application form along with ID proof of subscriber for phone number 9213534186 in the name of Jagbir Singh S/o Subhash Ram as Ex.PW47/A and call details as Ex.PW47/B. He also proved the customer application form along with ID proof of subscriber for phone number SC No.44/09 Page 44 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others 9268397468 in the name of Suresh Kumar S/o Banwari Lal as Ex.PW47/C and call details as Ex.PW47/D. He had also brought the certificate under section 65 B of Indian Evidence Act in respect of call details Ex. PW47/E. This witness has also proved the call details of mobile phone No. 9213534186 for the period of 10.102008 to 11.10.2008 as Ex. PW47/F. He has also proved the call details of mobile phone no.9268397468 for the period of 10.102008 to 11.10.2008 as Ex. PW47/G. This witness has also brought the essential certificate under section 65B Indian Evidence Act in respect of call details of mobile phone numbers of 9213534186 and 9268397468 as Ex.PW47/H and the cell ID location of mobile phone numbers 9213534186 and 9268397468 is Ex. PW47/I.
61. PW48 is Sh. Suresh Kumar Singla, Senior Sceientific Officer, GradeII, Serology, CFSL (CBI), who on 09.01.2009 received 11 exhibits from Biology Division which he examined and analyzed using serologic technique and his report in this regard is Ex. PW48/A.
62. PW49 is Sunil Kumar, Nodal Officer, MTNL, CGO Complex, New Delhi, who has been summoned for producing the call details records of mobile phone number 9868415221 SC No.44/09 Page 45 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others and 9968562955 for the period from 08.10.2008 to 15.10.2008 but this witness has forwarded a letter Ex. PW49/A in which he stated that said call detail records cannot be produced because as per rules, it is not possible to provide call details after one year. This witness has proved the original customer application form alongwith copy of DL in respect of mobile number 9868415221 as Ex. PW49/B. This witness has also proved the photocopy of customer application form in respect of mobile number 9968562955 alongwith copy of DL as Ex. PW49/C.
63. PW50 is Sh. A.R.Arora, Sr. Scientific Officer, Grade1, Ballistic Division, CFSL (CBI), who deposed that on 09.01.2009, ballistic division had received two sealed parcels i.e Parcel No.1 and Parcel No.6 from Biology Division and this witness has examined the same and his detailed report is Ex.PW50/A.
64. PW51 is Ram Kishan, UDC, Autorickshaw/Taxi Unit, Burari Transport Authority, who has proved the certificate issued by MLO, Burari Transport Authority in respect of taxi No. DL 1T 6001 as Ex. PW51/A.
65. PW52 is Sanjeev Kumar Jagota, UDC, Sheikh Sarai Transport Authority, who has proved the original file in respect SC No.44/09 Page 46 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others of registration of vehicle number DL 3CK 2997 as Ex. PW52/A.
66. PW53 is Inspector Sunil Kumar, who on 15.10.2008 was posted as Addl. SHO PS Domestic Airport and investigation of this case was marked to him and on that day, he had examined SI K.K.Singh and recorded his statement under section 161 Cr.PC, thereafter, he had sent a request to ACP office to get the call record collected in respect of mobile phone number 9846202449, which was in the possession of the victim before he went missing and on 16.10.2008, he had sent a request to PCR, Delhi Police Missing Person Squad and to CBI Missing Person Squad for searching K.T Sameer and hue and cry notice was also got issued and published in the leading newspaper. He received call details in respect of mobile phone of the deceased from ACP office and on examination of the call details, he found three mobile phone numbers i.e 9818152052, 9213534186 and 9268397468 had been called from the mobile phone of the deceased on the intervening night of 10/11.10.2008 and during the course of investigation, owners of mobile phone numbers 9818152052, 9213534186 and 9268397468 were served to join the investigation and owner of mobile phone No. 9818152052 informed him that he had given the same to his brother Manish Kumar, who had gone to Shimla and on 20.10.2008, he received SC No.44/09 Page 47 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others a secret information that accused Manish and Monu were about to come at Bust Stop Sanjay T Point, Mehram Nagar and Dr. Kaithal Shahir Ahmed, brother of the deceased also joined the investigation. Thereafter he alongwith HC Kamlesh, Const. Raja Ram, other members of police, secret informer and Dr. Kethal Sahir went to bus stop Sanjay T Point Mehram Nagar and after some time, two persons came there and they were apprehended at the instance of secret informer and on formal enquiry, they revealed their names as Manish Kumar and Monu and, thereafter, they were interrogated and they made their disclosure statements vide Ex. PW7/A and PW7/B and he sent Const. Raja Ram and Dr. Kethal Shahir to PS Bilaspur, Gurgaon as accused persons had disclosed that they had thrown the dead body of the deceased in the area of PS Bilaspur and he arrested accused Monu and Manish Kumar vide arrest memo Ex. PW8/DA and Ex. PW8/DB and their personal search was taken vide memo Ex. PW45/A and PW45/B and one mobile phone number 9968562955 was recovered from the possession of accused Monu which was seized vide seizure memo Ex. PW45/S and, thereafter, he deposited the case property and articles of personal search of accused persons with MHC(M).
67. He alongwith HC Kamlesh, other police staff, SC No.44/09 Page 48 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others accused Manish Kumar and Monu and Dr. Kaithal Shahir Ahmed went to the house of accused Manish Kumar at 20/60 Mehram Nagar and accused Manish Kumar got recovered Rs. 35,000/ kept in a handkerchief in the denomination of 70 currency notes of Rs. 500/ each and same was taken into possession vide seizure memo Ex. PW7/C. He thereafter, went to the house of accused Monu where he got recovered Rs. 45,000/ in denomination of 90 government currency notes of Rs. 500/ each and one pocket PC (mobile phone) make "I mode JASJAR and the same was seized vide seizure memo Ex. PW7/D and accused Manish Kumar had disclosed in his disclosure statement that taxi No. DL 1T 6001 which was used in the offence was parked in front of Balmiki Temple, Mehram Nagar and the same was seized vide seizure memo Ex. PW45/C. He further deposed that he received a secret information that third person namely Anil Kumar involved in this case would come at Mahipalpur Bus Stand and, therefore, he alongwith HC Kamlesh and other police officials went to Mahipalpur Bus Stand and at the instance of secret informer, accused Anil Kumar was apprehended and, thereafter, he was interrogated and his disclosure statement Ex. PW45/F was got recorded and accused Anil Kumar was arrested vide arrest memo Ex. PW45/D and his personal search was taken vide memo Ex. PW45/E and, SC No.44/09 Page 49 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others thereafter, he went to PS and deposited the articles of personal search of accused with MHC(M) and, thereafter, medical examination of all the accused persons was got conducted and on 21.10.2008 at about 6:00 am, he alongwith SI Jabbar Singh, HC Kamlesh and accused Anil Kumar went to the house of accused Anil Kumar where accused Anil Kumar disclosed that country made pistol and khanjar which were used in the murder of deceased had been kept on the roof of bathroom situated outside his house and this witness prepared the sketch of countrymade pistol which is Ex. PW28/A and, thereafter, he converted the countrymade pistol in the pullanda, sealed with the seal of ZS and took into possession vide seizure memo Ex. PW28/C. He further deposed that accused also got recovered one Khanjar from the roof of bathroom of the house and he prepared the sketch of khanjar which is Ex. PW28/B and the same was converted into pullanda, sealed with the seal of ZS and seized the same vide seizure memo Ex. PW28/D and accused Anil Kumar also got recovered Rs. 60,000/ in the denomination of 116 notes of Rs. 500/ each and 20 notes of Rs. 100/ each from 'tand' of his house and the same was seized vide seizure memo Ex. PW28/E and he went to PS and deposited the case property with MHC(M). The supplementary statement of accused Anil Kumar in which he disclosed that mobile phone SC No.44/09 Page 50 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others of the deceased was kept in the house of his sister's house at Rewari is recorded as Ex. PW53/A and when they are returning to PS from the court and reached near the PS, accused Anil Kumar further disclosed that the mobile phone of deceased was kept in his house and he had wrongly stated that same was kept in his sister's house at Rewari and supplementary statement of accused Anil Kumar was recorded as Ex. PW53/B and, thereafter, the mobile phone of the deceased was seized vide seizure memo Ex. PW12/A.
68. On 22.10.2008, a team of CFSL inspected the taxi DL 1T 6001 in the police station and took a piece of rear seat cover and two pieces of floor of carpet of taxi and same were seized vide seizure memo Ex.PW6/A and same were deposited in the malkhana and he had recorded the supplementary statement of accused Manish and Monu vide Ex. PW53/C and PW53/D and accused persons pointed out toll tax Gurgaon Delhi border vide memo Ex.PW45/G and, thereafter accused persons took them to ATM of ICICI Bank and ATM of SBI Bank, Sushant Lok1, Gurgaon and pointed out both the ATMs vide memo Ex. PW45/H and, thereafter accused persons led the police party to toll tax Khedkidhola and pointed out the same vide memo Ex. PW45/I and, thereafter, accused persons led the police party to a SC No.44/09 Page 51 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others place opposite village Banola near Pulia at way to Kuber Farm and told that they had thrown the dead body of the deceased near the Pulia and, thereafter, this witness has prepared the pointing out memo as Ex. PW45/J and on 23.10.2008, all the accused persons joined the investigation and they led the police party to ATM, SBI, CNG Station, Bharat Petroleum, IGI Airport and pointed out the ATM Ex. PW45/K where they had withdrawn Rs. 1,000/, 5,000/ and 4,000/ by using the ATM card of the deceased and, thereafter, all the accused persons led the police party to ATM of HSBC Bank, Shantipath and pointed out the ATM vide Ex. PW45/L from where they had withdrawn Rs. 5,000/, Rs. 10,000/ and Rs. 50,000/ by using the ATM card of the deceased and, thereafter, accused persons led the police party to ATM of Axis Bank, Gol Dakkhana and pointed out the ATM Ex. PW45/M from where they had withdrawn Rs. 40,000/ and Rs. 60,000/ from the ATM of the deceased.
69. He further deposed that, thereafter, accused persons led the police party to Iron Bridge Over Yamuna River and pointed out the place where they had thrown the attachi, clothes of deceased, Sim card of deceased, another ATM card of deceased which was not working and their own clothes worn by them at the time of incident and thereafter, he prepared the SC No.44/09 Page 52 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others point out memo Ex. PW45/P and, thereafter, accused persons led the the police party to HSBC Bank Mega CNG Station, Patparganj and pointed out the ATM vide Ex. PW45/N, where no money could be withdrawn from there as ATM Card when inserted in the machine was retained by the machine and they could not use the same and, therefore, PW53 gave a letter in the bank regarding retaining of ATM card in the ATM machine and, thereafter, accused persons led the police party to ATM of Standard Chartered Bank and pointed out the ATM Ex. PW45/O where they had withdrawn Rs. 10,000/, thereafter, he went to the house of accused Anil Kumar and seized his mobile vide Ex. PW45/Q and on 25.10.2008, accused persons were produced in the court and sent to JC and on 27.10.2008, he served a notice under section 91 Cr.PC to Station Manager, Jet Airways to provide passenger manifesto from Ahmedabad to Delhi for 10.10.2008 and he has also served a notice to the office of CISF to provide the footage of CCTV installed at Airport for the relevant period and on 29.10.2008, he had sent a letter to DCP office for getting collected the call details of four mobile phones through concerned service providers and on 30.10.2008, Branch Manager of Standard Chartered Bank, Priya Complex, Vasant Vihar supplied him the details of ATM transaction and two CDS containing the video recording of concerned ATM CCTV Camera SC No.44/09 Page 53 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others of the relevant period vide Ex. PW14/B and PW14/C collectively and on 31.10.2008, Station Manager, Jet Airways handed over him the passenger manifesto for flight Ex. PW30/B and on 01.11.2010, he went to Axis Bank, J3, Vikaspuri and obtained the details of ATM transaction vide Ex. PW17/A and on 03.11.2008, Assistant Branch Manager of HSBC Bank informed him vide letter Ex. PW15/A that the ATM card which was retained by ATM, Patparganj had been destroyed on 14.10.2008.
70. On 04.11.2008, he collected the details of ATM transaction of SBI Bank at Centaur Hotel vide Ex. PW16/B and on 06.11.2008, he received a letter Ex. PW29A from HSBC Bank, which confirmed the transaction of Rs. 65,000/ from ATM situated at Shanti Path vide Ex. PW29/B and on 07.11.2008, blood samples of son of the deceased namely Mohd. Jamil were taken by Department of Forensic and Toxicology, AIIMS vide Ex. PW18/DA for the purpose of DNA Test and on 10.11.2008, he alongwith with HC Kamlesh went to AIIMS where HC Kamlesh received two sealed envelopes containing the blood samples and one another envelope containing document Ex. PW18/DA and deposited the same with CFSL, Lodhi Road for preservation till the other exhibits of the case are sent to CFSL for examination and after returning to police station, PW53 SC No.44/09 Page 54 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others recorded the statement of HC Kamlesh Kumar and kept the envelope containing document Ex. PW18/DA with the file.
71. On 15.11.2008, he received a letter Ex. PW10/A alongwith call details Ex. PW10/B in respect of mobile phone number 9846202449 of the deceased and on 17.11.2008, he received a letter Ex. PW19/A from one Sh. Ajmal Abdullah from Kerala informing that the mobile connection number 9846202449 was in his name and he had given the SIM card of said mobile connection to the deceased for use while in India and on 15.12.2008, SHO of PS Bilaspur, Gurgaon, Dr. Sunil Kumar alongwith Const. Satish Kumar came to him and handed over to him complete case file and photographs of the deceased, which he placed with the investigation file. Thereafter, on 31.12.2008, he received an envelope from Dr. Kethal Shahir containing a letter dated 16.11.2008 Ex. PW53/E, written by partner of Muithela Trading Company, Saudi Arabia affirming that the ATM card bearing No.X was given by the company to deceased while travelling in India and on 19.01.2009, he alongwith HC Kamlesh went to the house of accused Monu where father of the accused Monu met them and on his pointing out, he seized one Maruti Esteem Car No. DL 3CK 2997 vide seizure memo Ex. PW45/R and, thereafter, he served a notice SC No.44/09 Page 55 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others under section 133 MV Act to the owner of taxi No. DL 1T 6001 and he informed PW53 vide his reply Ex. PW34/A that on 10.10.2008 at 7:00 pm, he had given the said taxi to his brother Manish Kumar and, thereafter, PW53 recorded the statement of owner of the taxi under section 161 Cr.PC. This witness also recorded the statement of Naveen Kumar, brother of Manish Kumar to the effect that Naveen Kumar had given his mobile phone No. 9818152052 to accused Manish Kumar and he also recorded the statement of HC Kamlesh Kumar under section 161 Cr.PC and on 24.01.2009, he also recorded the statement of one Mahavir Singh to the effect that he was the subscriber of mobile phone No. 9868415221 and he had given the Sim card to accused Anil Kumar.
72. On 09.03.2009, CFSL reports were got collected by const. Tilak Raj and same were deposited in the malkhana and, thereafter, PW53 recorded his statement and on 23.03.2009, he recorded the statement of Mr. Sushil Kumar under section 161 Cr.PC and on 24.03.2009, he prepared the rough site plans of places of recovery vide Ex. PW53/F and PW53/I and after completing the investigation, he prepared the supplementary chargesheet and filed the same in the court. This witness has also identified the case property i.e parcel No.3 Ex. P1 SC No.44/09 Page 56 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others (containing a piece of seat cover), Parcel No.4 Ex. P2 (containing two pieces of floor carpet of blackish grey colour), Cash Rs. 45,000/ denomination of 90 notes of Rs. 500 each as Ex. P3 and a mobile phone make Imate, model JASJAR as Ex. P4, which were recovered at the instance of accused Monu from his house, one country made pistol Ex. P7, one khanjar (dagger) Ex. P8, 20 currency notes of Rs. 100/ each and 116 notes of Rs. 500/ each, total Rs. 60,000/ as Ex.P9, one black colour Samsung Mobile Phone Ex. P12, one black and grey colour Nokia Mobile phone Ex. P13, one dark grey colour Motorolla phone Ex.P14, one grey and blue Nokia Express Music Phone Ex. P5, cash Rs. 35,000/ i.e 70 notes of Rs. 500/ Ex. P15, Maruti Esteem Car and Ambassador Taxi Ex. PX1 and PX2 and Video CD alongwith its copy Ex.PW14/C.
73. PW54 is Sushil Kumar, who was running export business of ready made hosiery garments at Ludhiana and deposed that deceased had to come to meet him at Delhi on 10/11.10.2008 from Saudi Arabia in connection with the export of hosiery garments and he had to provide some samples to the deceased and on 11.10.2008, he came to Delhi by Shatabadi Express and deceased had to meet him at New Delhi Railway Station and after reaching Delhi, when he contacted the SC No.44/09 Page 57 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others deceased on his mobile phone, the mobile phone of the deceased was found switched off and he had already booked his return ticket for the same evening and when he could not contact the deceased, he returned to Ludhiana by Shatabadi on the same evening.
74. PW55 is Sanjay Kumar, SSP Daman, who deposed that in FebruaryMarch, 2009, he was posted as DCP, IGI Airport, New Delhi and during that period, a request was received in his office from SHO, PS Palam Airport to accord sanction under section 39 Arms Act alongwith seizure memo of countrymade pistol, report of ballistic expert and other relevant documents and he had accorded sanction vide his order Ex.PW55/A.
75. PW56 Deepak, Alternate Nodal Officer, Vodafone Mobile Services, who has appeared on behalf of Sh. Anuj Bhatia, Nodal Officer and proved the call details of mobile phone No. 9846202449 Ex. PW56/A from the period 01.04.2008 to 15.10.2008. He has also proved the Cell ID address Ex. PW56/B and certificate under section 65B of Evidence Act in respect of call details Ex. PW56/A as Ex.PW56/C.
76. It has been contended by the Ld. Addl. PP that SC No.44/09 Page 58 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others accused persons were plying taxi at IGI International Airport and deceased K.T.Sameer, who had come from Saudi Arabia where he was working reached Mumbai on 7th October 2008 and went to Ahemdabad, thereafter, on 10th of October 2008 he came to Delhi by Spice Jet Airways and he was having a mobile No. 9846202449 owned by his nephew PW19 Ajmal Abdulla as deceased K.T.Sameer was using this phone during his visit to India and the deceased was supposed to go to Riyadh on 12 th October 2008 but his mobile was found switched off. But, thereafter, it transpired that money was withdrawn from the ATM card bearing No. 4909801160227752 owned by his employer. Relatives of the deceased came to Delhi on 14th October 2008 and made the complaint regarding missing of K.T.Sameer and after getting the mobile phone details of the accused, IO found that the mobile phone number 9818152052, 9213534189 and 9268397468 had been called from mobile phone number of the deceased on the intervening night of 10th/11th October 2008. It is further contended that after verifying the details of above said mobile phone number the accused were apprehended and they made their disclosure statements that the deceased had arrived at IGI Airport on 10th of October 2008 and the accused persons cajoled the deceased to board their taxi and accused Manish and Anil took the SC No.44/09 Page 59 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others deceased to Karol Bagh Area and the accused Monu was following the accused Manish and Anil in his car and accused persons made the deceased talked to their girl friends on the pretext that they will provide the deceased boarding including girl and, thereafter, they took the deceased to Gurgaon on the pretext that a girl could not be arranged in Delhi and they would arrange a girl at Gurgaon and they took his ATM Card and two mobile phones and accused Anil killed the deceased with the country made revolver and thrown the dead body near village Binola, PS Bilaspur, Distt. Gurgaon, Haryana and, thereafter, accused persons had withdrawn the amounts from different ATMs from Delhi. They had further disclosed that they had thrown the other belongings of deceased in river Yamuna. It is further contended that the accused Anil got recovered a country made revolver with which he fired at the deceased as well as the dagger and one mobile phone belonging to the deceased. Accused Anil also got recovered an amount of Rs. 60,000/. It is further submitted that accused Manish and Monu also got effected recoveries and the accused Manish got recovered the car/taxi belonging to his brother in which deceased was taken from IGI Airport to Gurgaon where he was murdered and an amount of Rs. 35,000/ was also got recovered from the house of accused Manish Kumar at his instance and a mobile phone No. SC No.44/09 Page 60 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others 9818152052 was got recovered from the possession of accused Manish Kumar. Accused Monu got recovered one pocket PC Phone of make "one Imode Jasjar" and a mobile phone bearing No. 9968562955 was also got recovered from the possession of accused Monu at the time of his arrest. It is further contended that the accused persons had called from the mobile phone of the deceased belonging to his beloved and the prosecution has proved on record that the deceased was kidnapped and thereafter robbed and murdered by the accused persons, hence prosecution has proved the case beyond reasonable doubts and accused are liable to be convicted.
77. Per contra, the counsel for the defence has contended there is false implication of accused persons in this case and there is no evidence on record to connect the accused to the present case. It is further contended that the case of prosecution is full of contradictions which are proved on record which the prosecution has failed to explain. There is no connectivity between the mobile phone of the accused persons and the deceased as alleged. The taxi in question did not belong to the accused Manish. Other recoveries are alleged to have been planted upon the accused persons to crack the present case. It is further contended that the weapon of offence namely SC No.44/09 Page 61 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others country made pistol was got recovered at the instance of accused Anil is not the weapon of offence as per the report of FSL. It is further contended that the money got recovered at the instance of accused persons is not proved on record that the said money was withdrawn by the accused persons from the account of the deceased by using his ATM card. Therefore, the accused are entitled for acquittal by giving benefit of doubt.
78. Now the question arises whether the accused persons committed the murder of the deceased after kidnapping and robbing him.
79. By now, it is evident that the case of the prosecution rests squarely on the circumstantial evidence. There is no direct eye witness to the crime. Experience shows that very rarely are crimes committed in full public view at a public place. Often, the crimes including murder are accomplished secretly far from public gaze so as to avoid their detection. In such cases, the culprits are tracked either on the basis of last seen together or other circumstances appearing on the scene including motive of crime, from which their guilt is inferred. Such type of evidence is called as 'circumstantial evidence'. In cases based upon circumstantial evidence, burden upon the prosecution is SC No.44/09 Page 62 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others heavier to prove each and every circumstance leading to the death of the deceased, beyond any reasonable doubt. The facts and circumstances so established should lead to only one inference i.e the guilt of the accused and should be complete without any missing link in the same so as not to leave any reasonable ground for a conclusion inconsistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
80. It is settled principle of law that such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of such tendency which point towards guilt of the accused;
(iii) the circumstance, taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanations 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 SC No.44/09 Page 63 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others accused but should be inconsistent with his innocence.
81. The present case is based on circumstantial evidence. To prove the circumstances, the prosecution has led evidence of 56 witnesses. Deceased K.T.Sameer was an Indian citizen with passport No. Z1158345 who was working as a Purchase Officer with Muthhala Trading Est. and he was given a company ATM Card with Rajhi Banking and Investment Company having number 4809901160227752 (hereinafter referred to number X) and he was on business tour in India w.e.f. 6th of October 2008. The said ATM was being misused from 10 th October 2008 in Delhi, India in terms of Ex.PW53/E proved on record by PW53 Inspr. Sushil Kumar who has deposed that he had received this letter from the employer of the deceased. The deceased K.T.Sameer had come to India is proved further by the testimony of PW1 N.K.Afzal who is co brother of deceased K.T.Sameer. PW1 has deposed that the deceased was doing business in Riyad, Saudi Arabia and on 7th of October the deceased reached Mumbai from Riyadh and went to Ahemdabad. He further deposed that deceased came to Delhi on 10th October 2008 by Spice Jet Airways. The fact that the deceased came to Delhi by Spice Jet Airways is further proved by the prosecution by placing on record the passenger manifesto of SC No.44/09 Page 64 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Spice Jet Airlines, IGI Airport, TerminalID, New Delhi which is Ex.PW30/B which is proved by PW30 Sh. Sumanth Rutela wherein at Sl. No. 60 name of deceased is depicted as one of the passenger who had travelled in the aeroplane on 10th of October 2010. The fact that the deceased had travelled India and came to Mumbai on 7th October 2008 is further proved by PW 7 Sh. Kaithal Shahir Ahmad who is the younger brother of deceased, who has deposed that the deceased came to Delhi from Ahemdabad on 10th of October 2008 and who made a call to one of his known in Saudi Arabia and, thereafter, all of his contacts lost. The coming of the deceased from Ahemdabad to Delhi is further corroborated by the testimony of PW12 Sazid K.B. who is the co brother of the deceased, who has deposed that the deceased came to India on 6th/7th October 2008 and on 10th of October 2008 he called him on his mobile phone from Mumbai and deceased told him that he was in Ahemdabad and the deceased was to leave for Delhi on same day. PW12 further stated that the deceased told him that he would return to Mumbai on 11th of October 2008 but the deceased did not return to Bombay on 11th October and PW12 tried to contact the deceased on his mobile but the mobile phone was not reachable.
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82. It may be noted here that the deceased was having his mobile phone bearing No. 9846202449 owned by PW19 Azmal Abdulla, who is the nephew of the deceased and PW19 has deposed that he had given the above said mobile phone number to his uncle in the month of July 2008 when he paid a visit to his native place and the sim card was used by the deceased when he visited India. He has further deposed that he had handed over a letter in this regard to the IO in terms of Ex.PW19/A. PW10 Anuj Bhatia, Nodal Officer, Vodafone Services Ltd. has proved the call details that this phone belonging to PW12 w.e.f. 1.4.2008 to 15.10.2008, in terms of call details print Ex.PW10/A. The ownership of above said mobile phone is proved by PW56 Sh. Deepak, Nodal Officer, Vodafone Pvt. Ltd. He has also proved the call details of the above said phone as Ex.PW56/A. PW54 Sunil Kumar has also corroborated the testimonies of other PWs that the deceased had to meet him on 11.10.08 at New Delhi Railway Station but when PW54 came to Delhi by Shatabadi Express, the deceased could not be contacted as his mobile phone was not reachable.
83. From the above discussion, I am of the opinion that the prosecution has proved that the deceased K.T.Sameer was working at Riyadh, Saudi Arabia with his employer as a Purchase SC No.44/09 Page 66 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Officer with Muthhala Trading Est. having his ATM Card bearing No.(X) and was having a mobile phone number 9846202449 and another mobile phone and further the deceased came to Delhi from Ahemdabad by Spice Jet Airways in the night of 10th of October 2008 and, thereafter, he went missing.
84. Now the question arises as to where the deceased went missing. PW1 has deposed that when the deceased went missing and he did not went back to Riyadh on 12th October 2008 and his mobile phone was found switched off, his office people informed PW1 that money has been withdrawn from his account with ATM Card (X) from some ATM located in 2/3 places surrounding Airport, Delhi and PW1 came to Delhi for knowing the whereabouts of deceased and when PW1 came to know that deceased had come to meet one person Sushil Kumar of Camel Knitting and Textile Mills, Ludhiana and PW1 went to Palam Airport and lodged the missing report of deceased K.T.Sameer. PW1 has further deposed that he made a complaint Ex.PW1/B on the basis of which a DD entry was lodged by the police officials at Palam Airport vide Ex.PW1/A.
85. During cross examination this witness deposed that he had came to police station, Airport at 2.30/3.00 PM on 14 th SC No.44/09 Page 67 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others October 2008 and he lodged the missing report at about 6.30 PM. He had given the details of mobile phone number of the deceased to the police. He had further stated that he talked to deceased on 7th October 2008. He further deposed that on 14th of October 2008 he had not received the statement of account of deceased but these details were received later on.
86. He has further testified in his cross that his brother in law Mr. Riaz had accompanied him when he lodged the complaint. PW2 HC Harpal Singh has deposed that on 14 th of October 2008 he was posted at PS Palam Airport and as duty officer he lodged the DD No. 43 at about 6.30 pm regarding missing of one person namely K.T.Sameer. PW3 HC Balwan Singh has stated that on 15th of October 2008 he lodged a FIR No. 50/2008 at about 9.00 PM on the basis of endorsement made by SI Krishan Kumar on the complaint made by PW1 (Ex.PW1/B) and proved the copy of FIR as Ex.PW3/A. In cross examination of this witness nothing could be elicited that the FIR was ante timed. The testimony of PW1 is further corroborated by the deposition of PW7 Sh. Kaithal Shahir Ahmed, who is younger brother of deceased, and he deposed that on 15th of October brotherinlaw of deceased got registered the FIR in PS Palam Airport and PW7 had come to Delhi on 16th Of October 08 and SC No.44/09 Page 68 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others enquired about the missing of his brother at PS Palam Airport. The testimony of PW1 and PW7 is further corroborated by PW12 Sajid K.B. that the deceased went missing since the intervening night of 10/11th October and PW12 kept on waiting of deceased at Mumbai Airport but the deceased had not reached Mumbai and his mobile phone was found not reachable. PW12 has further deposed that on 12th October 2008 when the deceased did not reached Riyadh, the wife of deceased asked him to come to Delhi to know the whereabouts of deceased and PW12 came to Delhi on 12.10.2008 and called his co brother N.K.Afzal to Delhi and on 13.10.2008 N.K.Afzal came to Delhi and both of them lodged the complaint at PS. Therefore from joint reading of the testimony of PW1, PW7 and PW12 on this aspect it is clear that the deceased went missing since intervening night of 10th October 2008 and his mobile phone was not reachable and money was withdrawn from his bank account through his ATM card bearing number X.
87. It may be noted there that after getting the call details of mobile phone of the deceased and getting the FIR lodged, PW40 SI Krishan Kumar checked from pre paid taxi booth to find whether any passenger by the name of K.T.Sameer had hired the taxi from Airport and PW40 came to know that SC No.44/09 Page 69 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others one taxi was booked by K.T.Sameer for Paharganj/Karol Bagh side and the number of said Taxi was DL 1T 3940 and driver of said taxi stated that he had dropped the passenger at Karol Bagh. But the said Sameer was not the person namely the deceased; K.T.Sameer and, thereafter, PW40 tried to trace the deceased in Hospitals as per routine and on 15th of October 2008 he moved the application to ACP for call details records of deceased K.T.Sameer as given by PW1/complainant Afzal.
88. Thereafter investigation was given to Inspr. Sunil Kumar. PW53 Inspr. Sunil Kumar testified that on 15 th October 2008 investigation of this case was handed over to him and he collected the call details of mobile phone of deceased before he went missing and on 16th October 2008 he sent request to PCR Missing persons Squad and CBI missing persons Squad for searching of deceased but no whereabouts of deceased were found, in the mean time, he received the call details and he found the connectivity of mobile phone of deceased with three mobile phones numbers namely 9818152052, 9213534189 and 9268397468. PW53 during investigation further came to know that mobile phone number 9213534186 was one of Jagbir Singh who was joined in the investigation and mobile phone number 926837468 was found in the name of one Suresh Kumar. He was SC No.44/09 Page 70 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others also joined in the investigation and mobile phone No. 9818152052 was in the name of Naveen Kumar who informed him that he had given this number to Manish Kumar and Manish Kumar had gone to Shimla and during the course of investigation on 20.10.2008 he got secret information that Manish Kumar and Monu will come at Bus stand Sanjay T Point, Mehram Nagar and PW3 alongwith PW7 Kaithal Shahir Ahmed, PW45 HC Kamlesh and PW 8 Raja Ram with other members of police party alongwith secret informer went to bus stand Sanjay T Point, Meharam Nagar and at the instance of secret informer arrested Manish Kumar and Monu and he interrogated both the accused persons and they made disclosure statements in the presence of PW7 i.e. Ex.PW7/A and Ex.PW7/B respectively. Accused persons disclosed that both the accused persons with their co accused Anil had killed the deceased K.T.Sameer.
89. It is relevant to note here that in his disclosure statement accused Manish had stated that he alongwith co accused Anil Kumar and Monu were plying taxi at Airport and he had purchased a countrymade revolver from a taxi driver Rajesh and he used to keep the same in Ambassdor car bearing No. DL 1T 6001 owned by his brother and all the accused persons had planned that they will rob some passenger and on SC No.44/09 Page 71 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others 10th of October 2010 at about 9.30 PM he was waiting outside the Arrival Hall of IGI Airport for some passenger and accused Anil was waiting in the parking then at about 9.30 PM, a passenger aged about 35/40 yrs. reached at Arrival Hall and accused Manish asked him whether he needs any hotel but the said passenger refused and, thereafter, the said passenger inquired whether any hotel and a girl can be arranged and accused Manish stated that everything will be arranged and said passenger accompanied accused Manish and accused Manish asked his coaccused to bring the taxi near arrival hall and he informed accused Anil that the said passenger has met for whom they were waiting and he should come near Meharam Nagar Chambery and the accused Manish alongwith K.T.Sameer reached near Chambery where accused Anil met him and he also boarded the said Taxi and accused Manish from his mobile No. 9818152052 called on the mobile phone of accused Monu bearing No. 9968562955 and told him that the said passenger, for which they were waiting, has met and asked Monu to reach at red light, Gurgaon side but accused Monu told him that he in his car bearing No. DL 3CK 2997 and when accused Manish was coming from red light from Gurgaon side near Vasant Vihar he received a call from accused Monu that he is following accused Manish and all the accused went from Vasant Vihar to Karol SC No.44/09 Page 72 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Bagh and the deceased inquired about the arrangement for a girl. Accused Manish told him that he is arranging for the same and he instructed Monu on phone to appear as pimp and he told the deceased that this boy Monu will arrange a girl at Gurgaon as the arrangement of girl could not be made at Delhi. Accused Manish further disclosed that accused Monu left his car at Karol Bagh and boarded the Ambassdor car alongwith other co accused. Accused Manish had further disclosed that he had given a country made revolver to accused Anil and after reaching at IFFCO Chowk Gurgaon, the deceased inquired about the arrangement of girl and the accused persons told him that it will be done in a short while, thereafter, accused persons reached at Sector 56 Gurgaon where accused Anil put the country made revolver at his temple and the deceased started trembling.
90. Accused Manish had further disclosed that, thereafter, all the accused persons tied the hands and legs of deceased and tied his mouth with handkerchief and put him on the floor of back seat of the car. Accused persons tried to withdraw money from the ATM Cards at National Highway No. 8 but the money could not be withdrawn and the accused persons asked another code of second ATM which was told as 4080 but SC No.44/09 Page 73 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others the money could not withdraw from the said ATM. Thereafter, the accused persons took the Taxi to Manesar and accused Anil fired at the deceased and he died after 10 minutes. Thereafter, the accused persons had thrown the dead body one kilometer away from Bilaspur on a kacha road and accused persons reached at a Dhaba and cleaned the blood stains of the car and came back to the IGI Airport and had withdrawn the amount from the ATM by using the ATM card bearing No.X of the deceased. Accused had further withdrawn the amount from the ATM at Motibagh and through Connought Place they reached at river Yamuna and had thrown the bags, clothes and one watch of deceased in the river Yamuna and came back to Karol Bagh from where accused Monu took his car and, thereafter, they all went to their house. Accused Manish further disclosed that for the next three four days they had withdrawn the amount from different ATMs and accused Anil had given Rs. 35,000/ to accused Manish and Rs. 45,000/ to accused Monu and accused Anil himself kept Rs. 60,000/ and Rs. 30,000/ were kept apart for going to Haridwar and Shimla. Accused Manish has further disclosed that the big mobile phone of deceased was taken by accused Monu and small mobile phone was taken by accused Anil. Accused has further disclosed that on 14th 15th October 2008 he tried the ATM Card in Patparganj ATM but the same was SC No.44/09 Page 74 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others got blocked in the ATM machine and on 15th , 16th October 2010 they all went in the Esteem car belonging to accused Monu to Haridwar and Shimla and came back to Delhi and were apprehended by the police.
91. Accused Monu had also made disclosure statement on the lines of disclosure statement made by Accused Manish. Accused Anil was also arrested on the same day i.e. 20th October 2008 at about 9.00 pm and he also made a disclosure statement and disclosed that he was driving a taxi at Palam airport and he was having friendship with Manish Kumar and Monu as he was residing in the same colony and working as taxi driver and accused Manish used to arrange passengers for him and two three months prior to the incident they had planned to rob a passenger at the Airport and accused Manish had told him that he had already purchased a country made revolver alongwith cartridges and he had purchased a dagger from one person Ramesh who is also a Taxi driver and they were waiting for an opportunity and on 10th of October he had gone to attend a programme at R.K.Puram of one of his relative namely Jagbir Singh and he has taken mobile phone bearing No. 9213534186 from PW4 Rosy, daughter of PW5 Jagbir Singh and had given his mobile phone bearing No. 9868415221 to Rosy. He further SC No.44/09 Page 75 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others disclosed that on 10th October he had gone to inlaws of his brother Vicky as he is in love with Vandana, sisterinlaw of his brother and he used to talk to Vandana on his mobile No. 9268397468. He has further disclosed that at about 9.30 PM he received a call from accused Manish Kumar who has stated that he has got a passenger of their liking and called him near Meharam Nagar Chambery where accused Manish Kumar was found waiting alongwith one passenger.
92. He has further disclosed that accused Manish made a call from his mobile No. 9818152052 on the mobile No. 9968562955 to Monu and asked Monu to reach at Red light from Gurgaon side. Accused Monu told him that he was towards JNU side and accused Manish and Anil went towards Vasant Vihar and, thereafter, accused Monu told him that he was following their Taxi. Accused Anil further disclosed that he alongwith co accused Manish and K.T.Sameer reached to Karol Bagh via Moti Bagh and passenger K.T.Sameer was asking for the arrangement of hotel as well as the arrangement for a girl and accused Manish introduced accused Monu as pimp and told to the passenger, K.T.Sameer that the arrangement for a girl will be made at Gurgaon and they went towards Gurgaon. Accused Anil has further disclosed that passenger, K.T.Sameer enquired about SC No.44/09 Page 76 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others the arrangement of girl and accused persons told him that it will be arranged in a short while and, thereafter, accused persons went at Sector 56, Gurgaon and accused Anil put the gun/country made revolver towards passenger/deceased and he started trembling and, thereafter, the victim/deceased was tied with a rope and all his belongings including two ATM Cards and two mobile phones were snatched. Accused Anil further disclosed that he made a call from mobile phone of deceased to mobile phone bearing No. 9268397468 of Vandana. Accused Anil further disclosed that accused Manish tried to withdraw money from the ATM but the amount could not be withdrawn and, thereafter, accused persons went to Manesar and thereafter accused Anil fired at deceased and he died within 10 minutes. Accused Anil has further disclosed that they have tried to withdraw money from the ATM at Patparganj but the ATM card of the deceased was blocked in the machine and amount could not be withdrawn and, thereafter, all the accused persons went to Haridwar and Shimla and amount of Rs. 60,000/ of his share was kept by him in his house which he could get recovered as well as country made revolver and dagger also.
93. It may be noted here that the said disclosure was made by accused Manish and Monu in the presence of PW7 and SC No.44/09 Page 77 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others PW7 alongwith PW8 Raja Ram went to Police station Bilaspur, Gurgaon, where SI had shown him some photographs and he identified the photographs as that of the deceased, his brother K.T.Sameer. Thereafter PW7 alongwith PW8 Ct. Raja Ram returned to PS Palam Airport at about 7.00 pm and PW7 alongwith PW53 Inspr.Sunil and PW45 HC Kamlesh went to the house of accused Manish and accused Manish got recovered Rs. 35,000/ containing 70 notes of Rs. 500/ denomination in a blue color check handkerchief which was seized by the IO vide memo Ex.PW7/C. PW7 had further stated that, thereafter, accused Monu took the police party to his house and got recovered one mobile phone from a plastic bag of make IMATE JASJAR and Rs. 45,000/ containing 90 notes of Rs. 500/ denomination of each. PW7 has identified the case property namely the currency notes of 35,000/ got recovered from the possession of accused Manish as Ex.P1 and handkerchief as Ex.P2 and the mobile phone got recovered by accused Monu as Ex.P4 and amount of Rs. 45,000/ got recovered by accused Monu as Ex.P3. During cross examination PW7 has admitted that he joined investigation on 20.10.2008 at about 12.30 am but he was not given any notice or summon in writing to join the investigation by the IO.
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94. PW7 remained associated in the investigation conducted by the IO on 20.10.2008 upto 8.30 PM. He further admitted that he had signed two statements at Sanjay Gandhi T Point between 12.30 to 2.30 PM. He further admitted that many public persons were present but no one came near to them. During further cross examination he admitted that the statement regarding joining investigation was recorded on 20.10.2008. He further stated that he identified the dead body of his brother on the basis of his clothes, rings and photograph at the PS Bilaspur. He further admitted that in his statement Ex.PW7/DA he has not mentioned that he seen the photographs at PS Bilaspur but he has further clarified that photographs might have come to PS Bilaspur after his statement was recorded. He has further stated that disclosure statement of accused Manish and Monu were recorded at Sanjay Gandhi T point. He has further stated that seizure memo were prepared at the house of accused persons by Inspr. Sunil Kumar. He further admitted that public persons were passing near the house of accused persons. PW8 Ct. Raja Ram has corroborated the testimony of PW7 that when the disclosure statement of accused was recorded he alongwith PW7 had went to PS Bilaspur and on inquiry it was revealed that an FIR No. 160/2008, U/s. 302/201 IPC was registered at PS Bilas Pur and SC No.44/09 Page 79 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others PW7 identified his brother from the photographs as well as the other articles. During cross examination of this witness nothing could be elicited to falsify the prosecution story. Therefore, from the disclosure statements of accused Manish & Monu, the factum of death of the deceased was established and on their disclosure statement, murder of deceased was discovered in the area of Gurgaon and the information led to the recovery of blood stained clothes of deceased including his articles in the police station Bilaspur. This conduct of the accused Manish and Monu is relevant under section 8 of the Evidence Act as well as admissible under section 27 of Indian Evidence Act.
95. Now coming to the recoveries made by accused Anil Kumar; PW53 has stated that after return of Ct. Raja Ram, PW8 and PW7 Kaithal Shahir Ahmed he added Section 302 IPC regarding murder of K.T.Sameer to the present FIR and recoveries of the articles were made as deposed by PW7 from the possession of accused persons. PW53 has further deposed that thereafter accused Manish, HC Kamlesh and another officials went to Balmiki Temple, Mehram Nagar and accused Manish got recovered the Taxi No. DL 1T 6001 which was seized vide seizure memo Ex.PW45/C. PW53 has further testified that at about 9.00 pm on 20.10.2008, he received a secret SC No.44/09 Page 80 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others information that third accused Anil Kumar would come at Mahipal Pur bus stand and he could be apprehended if raid could be conducted and PW53 alongwith HC Kamlesh, PW45 and other police officials went at Mahipal Pur bus stand and at the instance of secret informer accused Anil was apprehended who made his disclosure statement Ex.PW 45/F and accused was arrested vide arrest memo Ex.PW45/D and his personal search was conducted vide Ex.PW45/E. PW53 recorded the statement of Ct. Raja Ram and HC Kamlesh and accused persons were lodged in lockup.
96. PW53 has testified that on 21st October2008 he alongwith SI Jabar Singh and HC Kamlesh went to the house of accused Anil Kumar where accused Anil Kumar brought country made pistol and dagger from the roof situated in his house and PW53 asked the public persons to join the investigation but none come forward and the country made pistol was seized by seizure memo Ex.PW28/C and sketch of said pistol was made vide Ex.PW28/A. Sketch of dagger was made vide Ex.28/B and it was seized vide memo Ex.PW28/D. He further deposed that accused Anil Kumar recovered the amount of Rs. 60,000/ out of which 116 currency notes were of Rs. 500 denomination and 20 currency notes were of Rs. 100 denomination from attic (Tand) SC No.44/09 Page 81 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others of his house. The said amount was seized vide seizure memo Ex.PW28/E. Accused Anil got recorded his supplementary disclosure statement disclosing that the mobile phone of the deceased is kept in the house of his Sister in Rewari but in a subsequent disclosure statement Ex.PW53/B he went to the house of accused Anil Kumar in the presence of HC Kamlesh and PW12 Sajid K.B. Accused Anil Kumar got recovered mobile phone make Nokia X Music which was seized vide seizure memo Ex.PW12/A. PW 12 Sajid K.B.has also supported the testimony of PW53 on this aspect that he was present at PS Palam Airport on 20.10.2008 and he alongwith police party and accused Anil went to the house of Accused Anil where the accused Anil took out a Nokia Xpress music mobile phone which was identified by PW12 to be belonging to the deceased brother, K.T.Sameer and he identified this mobile phone as Ex.P5. During cross examination by counsel he has admitted that the mobile phone Nokia Xpress Music was recovered in his presence on 21.10.2008. This witness has also identified the accused persons. He has admitted in his cross that his statement was recorded by some police official by the name of Sunil. During further cross examination nothing could be elicited to doubt his veracity.
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97. PW53 has testified that he had sent a request letter to CFSL CBI through PW31 SI Kehar Singh on 21.10.2008 and on 22.10.2008 a team of CFSL headed by Dr. Rajendra Prasad, PW6 including Dr. Gautam Rai PW26 and Dr. S.K.Singhla and Dr. U.S.Thakur came to PS and they inspected the taxi DL 1T 6001 in police station and they took piece of rear seat cover and two pieces of floor carpet of said taxi as some blood stains were found on these portions and the said articles were so recovered from the inspection of said taxi were sealed and seized vide seizure memo Ex. PW 6/A. PW6 has corroborated the testimony of PW53 and stated that on 22.10.2008 he inspected the vehicle No. DL 1T 6001 with Dr. S.K.Singhla, Dr. Gautam Rai, Dr. U.S.Thakur and Dr. Mahapatra at PS Palam Airport. He further stated that the said vehicle was examined scientifically in respect of physical clue which can link the crime and criminal. It is further stated that the vehicle was thoroughly photographed and the pieces of rear seat cover and pieces of rear foot carpet which were sealed and seized by the IO which were further examined by the expert in the CFSL lab. This witness also identified the piece of seat cover as Ex.P1 and two pieces of floor carpet as Ex.P2. During cross he admitted that the seat cover and floor carpet were taken by cutting with the scissor by Dr. S.K.Singhla and Dr. Mahapatra. During cross examination he SC No.44/09 Page 83 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others further admitted that his previous statement Ex.PW6/A is correct. He has further admitted that they identified the blood portion of seat cover and floor carpet by seeing as well as smelling. He has further admitted that those articles were sealed in his presence and the said vehicle was found locked before inspection started by PW6.
98. PW27 Gautam Rai was also a member of expert team which had gone to inspect the taxi No. DL 1T 6001 alongwith PW6 and he had took the photographs of said vehicle with the help of digital camera and he took the photographs of said car from different angles and also that of the blood stains found in the car as marked by the Experts and he proved the said photographs Ex.PW27/A1 to Ex.PW27/A11.
99. PW43 Dr. V.K.Mahapatra, Sr. Scientific Officer, Biology, CFSL, CBI, New Delhi and he proved and placed on record his report Ex.PW43/A in respect of seven sealed parcels and as per his conclusion the DNA profile generated from the source of exhibits 3 (Seat cover), 5a (Shirt), 5b (Banian), 5c (Pants), 5d (under wear), 5e (piece of cloth) and 6 (Metallic piece) is consistent as biological father of Mohd. Zameel and matched with DNA profiling of source of exhibits X1 (Liquid SC No.44/09 Page 84 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Blood Sample) and X2 (Blood stained Gauze). It is relevant to note here that the blood sample of the son of the deceased was taken by PW18 Sh. Ajay Prakash, Lab technician, DNA Finger Printing Lab, Department of Forensic Medicines, AIIMS who deposed that on 7th of Nov. 2008 he had taken the blood sample of Md. Zameel aged 11 years for both dry blood stain and wet blood and he had handed over the said samples in sealed condition alongwith the consent form to HC Kamlesh Kumar on 10.11.2008. The consent form is marked as Ex.PW18/DA.
100. From the above discussion, it may safely be concluded that the deceased was taken by accused persons in taxi No. DL 1T 6001 from IGI Airport as the DNA profiling of the blood of son of deceased match with that of blood stained samples taken from the rear seat and carpet of the abovesaid taxi.
101. Now coming to the recovery of the dead body of deceased at PS Bilaspur, Gurgaon. The dead body of deceased K.T.Sameer was found lying in open which was seen by PW20 Hukam Singh, Nambardar of village Binola who has deposed that on 11th of October 2008 he had gone to the fields to answer the call of nature and in the fields he had seen the dead body of SC No.44/09 Page 85 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others the young male lying near the wall of Kuber Farm and he noticed the vehicle tyre marks near the dead body. He further found that there were shirt, jeans pant and a red color shoes on dead body and further a rope was found tied on the left hand of dead body. He further informed at PS Bilaspur and police officials came there and recorded his statement Ex.PW20/A. During cross by Ld. Defence counsel he further deposed that police had made no inquiry from any other person in his presence. He has further stated that he reached the police station at about 7.15 AM and police official had come within 10 minutes at the spot. He had further stated that the dead body was lying on a Kacha way at about 100 ft away from the road.
102. PW39 Dr. Sunil Kumar had testified that on 11th of October 2008 he was posted at PS Bilaspur and the dead body was found lying near the wall of Kuber Farm near village Binola and he alongwith ASI, PW32, ASI Brahm Prakash and PW33 Ct. Mewa Singh went to the spot where he found the dead body and he recorded the statement of said Nambardar and made his endorsement on the said statement vide Ex.PW39/A and sent Ct. Mewa Singh PW33 for registration of FIR to PS Bilaspur and PW 22, SI Prakash Chand who was posted as DO at PS Bilaspur on 10.10.2008 has deposed that at about 8.30 AM on 11.10.2008 SC No.44/09 Page 86 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others he received a rukka sent by PW39 IO /SI Sunil kumar through Ct. Mewa Singh, he lodged the FIR No. 160/08 at PS Bilaspur Ex.PW22/A and made his endorsement on the rukka vide Ex.PW22/B and handed over the copy of FIR and original rukka to Ct. Mewa Singh. PW39 has further deposed that he called the photographer as well as crime team at the spot and the crime team inspected the spot and photographer took the photographs of the spot. PW6 Pawan Kumar, Photographer took the photographs which are marked as PW36/1 to 13. In cross he admitted that his statement was recorded by the Haryana Police. PW39 has further deposed that he has seized one ring from the finger of the deceased where word 'Wahida' was inscribed and he seized the said ring alongwith blood stained soil vide seizure memo Ex.PW32/A. He moved an application for getting the postmortem got conducted at Civil Hospital Gurgaon vide ExPW39/A.He prepared the inquest proceedings and the said proceedings are Ex.PW39/B and after postmortem doctor handed over to him two sealed parcels sealed with seal of hospital which was seized by PW39 vide seizure memo Ex.PW33/A and thereafter he recorded the statement of witnesses. Thereafter he got published the photograph of deceased in newspaper to get the identity of deceased established and the dead body was got preserved for 72 hours so SC No.44/09 Page 87 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others on. Thereafter he moved an application for cremation of dead body vide Ex.PW11/A and PW11 has given permission to perform the last rites as per Mohamedden Rites. PW21 Jan Mohd. has deposed that he has buried the dead body brought by Haryana police officials from mortuary as per Mohameddan rites on 14.10.2010.
103. It is relevant here to mention that the postmortem of deceased was conducted by Dr. B.B.Aggarwal alongwith Dr. Ravi Bala Sharma on the request made by police Ex.PW9/A. He further deposed that the dead body was brought by Ct. Mewa Singh of PS Bilaspur, Gurgaon and there was red colour handkerchief tied around the neck with knot on left side and there was no apparent mark or ligature seen on dissection of neck. He further deposed that there was haemorrhage of right eye at 9 O'clock position and dead body was of a well built male wearing blue socks, blue jeans, brown underwear and check shirt and xray of dead body was conducted at the xray department of Govt. Hospital Gurgaon in his presence and same was handed over to the police and xray showed bullet over left side of chest posterior and Baniyan showed mark of fire arm injury in front and upper part. The clothes alongwith rope were handed over to the police in sealed parcel and was fire arm entry SC No.44/09 Page 88 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others wound with surrounding blackening and blue discoloration over margin of wound. Size of wound was of 2 cm / 1.5 cm and on dissection of wound there was fracture of body of sternum towards left, marked laceration of right ventricle, pericardium was full of blood, crossing inter ventricular septum, left ventricle, left side chest and lodged posteriorily at the level of 7th
- 8th vertebrae level and there was surgical emphysema over left side chest and bullet was recovered from the body and sealed in a sealed parcel and in the opinion of the doctor the death was due to the extensive injury to the vital part i.e. heart. Injuries were antemortem in nature and sufficient to cause death in ordinary course of events which was due to fire arm injury. He has proved the postmortem report vide Ex.PW9/B and Xray plates as Ex.PW9/C and 9/D. This witness has also identified the case property namely articles belonging to deceased and the bullet got recovered from the dead body of deceased as Ex.P6. The gap between the death and postmortem was 12 to 36 hours. In cross nothing could be elicited which may doubt the veracity of this witness.
104. PW11 Dr. Ravi Bala Sharma has deposed on the same lines as deposed by PW 9 and he has further deposed that he has given the permission to perform the last rites of deceased SC No.44/09 Page 89 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others vide Ex.PW11/A. It may be noted that PW23 is HC Manoj Kumar who is a draftsman who has prepared the site plan Ex.PW23/A on the direction of PW39 SI Sunil Kumar, of PS Bilaspur, Gurgaon.
105. PW24 HC Vikas Prateek has deposed that on 11th October 2008 he was posted as MHC(M) at PS Bilaspur and PW39 SI Sunil Kumar got deposited with him four sealed pulandas, the entry of which was proved vide Ex.PW24/A. On 15th of December 2008 he had send the said sealed parcels to SHO PS Palam Airport, Delhi through PW35, Ct. Satish Kumar and handed over the same to PW37 HC Ishwar Singh and copy of road certificate is Ex.PW24/B and HC Ishwar Singh issued receipt in token of receiving of the aforesaid parcels vide Ex.PW24/C.
106. PW37 has also proved that he received the parcels from Ct. Satish on 15.12.2008 and deposited the same in the Malkhana vide entry Ex.PW37/C. PW39 has further deposed that on 20.10.2008 PW7 Kaithal Shahir Ahmed the brother of deceased alongwith PW 8 Ct. Raja Ram came in police station and he had shown the photographs as well as other belongings of deceased to PW7 Kaithal Shahir Ahmed and he identified the SC No.44/09 Page 90 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others said belongings to his deceased brother. On 22.10.2008, IO of this case from PS Palam Airport came to him with three accused persons and police staff and he joined the investigation and accused persons led the police party to the spot. He has further stated that on 25.12.2008 he prepared the final report Ex.PW39/C and alongwith site plan Ex.PW39/D handed over to PW53 Inspr. Sunil Kumar. PW 39 had also identified the ring inscribed with word "Wahida" as Ex.P10. Nothing in the cross could be elicited to doubt the veracity of this witness. From the above discussion it can safely been inferred that the deceased K.T.Sameer was found lying dead in the village Binola with gun shot injuries and as per the opinion of the doctor he died a homicidal death.
107. From the above discussion, it can safely be concluded that the dead body of the deceased was found lying in village Binola by Haryana Police and after getting the post mortem conducted, the dead body was buried as per Mohammedan rites and the sealed parcels were handed over to the IO of this case. As such, the factum of homicidal death of the deceased at Gurgaon has been proved on record.
108. Now adverting to the facts of the present case SC No.44/09 Page 91 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others regarding mobile phone connectivity, it has proved on record that deceased died of homicidal death by gun shot injury and in order to prove the circumstances, another link in the chain of circumstantial evidence is alleged to be proved by the prosecution by call details of the accused and their intense connectivity as well as the connectivity of the mobile phone used by the accused persons with the mobile phone used by the deceased. The mobile phone allegedly used by the accused persons and the deceased as per prosecution story are detailed as under :
Mobile number User Ownership 9268415221 Anil Mahabir (hereinafter referred as A) 9268397468 Vandana PW13 Suresh Kumar PW26 (hereinafter referred as B) 9213534186 Rozy PW4 Jagbir PW5 (hereinafter referred as C) 9818152052 Manish Naveen Kumar (hereinafter referred as D) 9968562955 Monu Sher Singh (hereinafter referred as E) SC No.44/09 Page 92 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others 9846202449 Deceased Ajmal Abdullah (hereinafter referred as F)
109. Call details of the mobile phone D used by accused Manish and owned by his brother Naveen is proved in terms of Ex. PW46/B and relevant portion is reproduced hereunder:
Mobile Date Time Call type Called phone of calling Manish. 9818152052 10.10.2008 21:33:54 Outgoing 9968562955 do do 21:34:45 do 9891859011 do do 21:36:16 do 9968562955 do do 21:40:03 do do do do 21:42:18 do 9868415221 do do 21:43:04 Incoming 9250206335 do do 21:46:01 do do do do 21:47:59 Outgoing 9968562955 do do 21:49:15 Outgoing 9268397468 do do 21:51:24 do 9968562955 do do 21:53:15 do 9891859011 do do 21:54:26 do 9268397468 do do 21:57:24 Incoming 9968562955 do do 22:03:21 Outgoing do do do 22:47:33 do do SC No.44/09 Page 93 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others do do 22:49:48 do 9868415221 do do 22:51:39 Incoming 9968562955 do do 22:54:14 Incoming 9846202449 do do 22:59:06 Outgoing 9868415221 do do 23:10:53 Incoming 9968562955 do do 23:20:08 Incoming 9968562955 do do 23:23:03 do 9968562955 do do 23:25:11 do 9968562955
110. Call details of mobile phone C used by PW4 Rozy and owned by PW5 Jagbir Singh is proved in terms of Ex. PW47/F and relevant portion is reproduced hereunder:
Calling No. Called No. Call date Time 9846202449 9213534186 10/10/08 22:42 9213534186 9868415221 10/11/08 8:41 9268179154 9213534186 do 9:26 9213534186 9868415221 do 18:14 9213534186 9868415221 do 18:22 9268179154 9213534186 do 18:44 9213534186 9868415221 do 19:10 9213534186 9868415221 do 22:47 9213534186 9868415221 do 23:11
111. Call details of mobile phone B used by PW13 Vandana owned by her father PW26 Sh. Suresh Kumar is proved SC No.44/09 Page 94 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others vide Ex. PW47/G and relevant portion is reproduced hereunder:
Calling No. Called No. Call date Time 9268397468 9868415221 10.10.08 15:29 9818152052 9268397468 do 21:49 9818152052 9268397468 do 21:54 9968562955 9268397468 do 23:36 9968562955 9268397468 do 23:41 9846202449 9268397468 10.11.08 0:31 9846202449 9268397468 10.11.08 0:33
112. Call details of mobile phone F used by the deceased owned by PW19 Sh. Ajmal Abdullah which is proved vide Ex.PW56/A and relevant portion is reproduced hereunder:
MSISDN Party number S Date S time
919846202449 09213534186 10.10.08 22:42:26
do 09818152052 do 22:54:30
919846202449 009665010845 11.10.08 00:24:21
66
do 09268397468 11.10.08 00:31:30
do do 11.10.08 00:33:59
113. Now coming to the mobile phone bearing no. D allegedly used by the accused Manish. The said phone was SC No.44/09 Page 95 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others owned by his brother Naveen Kumar (PW44) but the said Naveen Kumar turned hostile and has resiled from his previous statement that the said mobile phone was owned by him but used by his brother Manish. But from his testimony, it can safely be concluded that mobile phone bearing No. 'D' was being owned by Naveen Kumar, brother of the accused Manish but the prosecution has further proved on record that the said mobile phone bearing No. D from accused Manish was seized from the possession of the accused at the time of his arrest in terms of seizure memo of the said phone bearing No. D. Therefore, the mobile phone bearing No. D is proved on record to be used by accused Manish and owned by his brother Naveen Kumar.
114. Now coming to the mobile phone bearing no. B. As per prosecution story, the said phone was owned by PW26 Suresh Kumar, father of Vandana PW13 and PW13 Vandana has admitted that her father had gifted her mobile phone on her birthday on 19.08.2008 but she did not remember the mobile phone number of the said phone and, thereafter, she turned hostile but during cross by Ld. State counsel, she had admitted that her mobile phone which was gifted to her by her father PW26 might be mobile number bearing No. 'B'. She has further SC No.44/09 Page 96 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others admitted in her cross that on 10.10.2008, accused Anil had also come in the said function but she has further stated that she cannot say that mobile phone number of the accused Anil was number 'A' or not and she further denied the suggestion that she received a call at about 12:30 am on the intervening night of 10/11.10.2008 from mobile phone bearing No. 'F' of the deceased.
115. PW26 Suresh Kumar, father of PW13 Vandana has also corroborated the testimony of his daughter Vandana to the extent that he had gifted the mobile phone to his daughter on her birthday and he has further deposed that on one day when a function was held in his house, then at about 11:00 12:00 night, his daughter PW13 received a call and his daughter had told subsequently that the said call was made by accused Anil. PW26 further admitted that accused Anil is brotherinlaw of his daughter Preeti, who is married to Ravinder, S/o Ramesh Kumar. The testimony of PW13 and PW26 is further corroborated by documentary evidence in the shape of customer application form and other documents which are proved on record by PW47 M.N.Vijayan in terms of Ex. PW47/C that mobile phone No. B is owned by PW26 Suresh Kumar. Therefore, the prosecution has been successful in proving that SC No.44/09 Page 97 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others the mobile phone bearing No. B was being owned by PW26 Suresh Kumar and he has gifted the said phone to his daughter PW13 and PW13 was using the said phone after the same was gifted to her by her father on the eve of her birthday.
116. Now coming to the mobile phone bearing no. 'A'. Mobile phone bearing No. 'A' is proved to be issued in the name of Mahavir Singh in terms of Ex. PW49/B and customer application form Ex.PW49/C. PW41 Mahavir has deposed that he has sold his mobile phone instrument to accused Anil for an amount of Rs. 4500 and accused Anil had asked for his mobile sim bearing No. 'A' for using the same till he got his own sim card. PW41 has further deposed that he had handed over the same for some time but accused Anil met him and when he demanded his sim card, the accused Anil had stated that he had lost the said sim card in some party alongwith his mobile phone. Therefore the conjoint reading of the oral testimony of PW41 Mahavir and documentary evidence placed on record, it can safely be inferred that mobile phone bearing No. 'A' was used by accused Anil Kumar.
117. Now coming to the mobile phone bearing No. C. The said number is owned by PW5 Jagbir Singh who has stated that SC No.44/09 Page 98 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others he had purchased the mobile phone from village Mohammadpur, R.K.Puram and said phone was being used by his family members including PW4 Rozy. Thereafter, this witness has turned hostile and during cross by Ld. State Counsel, he has stated that he had purchased the said mobile phone on 02/03./10.2008 and during further cross examination, he further admitted that he cannot admit or deny the suggstion that the number of mobile phone which was purchased by him was bearing no. 'C' or not. The oral testimony of this witness that the mobile phone bearing No. 'C' was being owned by PW5 and used by his family is further corroborated by testimony of PW47 who has proved that mobile phone bearing No. 'C' was in the name of PW5 in terms of Ex. PW47/A.
118. PW4 has stated that one day in the winter season in the year 2008, PW4 has gone to Palam airport alongwith her parents and she had not taken any mobile phone on that day and family members of the accused Anil had also come to her house to attend the said function but she did not remember whether accused Anil had also attended the said said function or not. During cross examination, she denied the suggestion that mobile phone bearing No. 'C' was brought by her father for PW4. She further volunteered that it was for home use. In a SC No.44/09 Page 99 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others question put to her as to whether at 10:45 pm on 10.10.2008, she has received a call from accused Anil from mobile phone bearing No. 'F' but she denied that she had not attended any such call. From the conjoint reading of the testimony of PW4, PW5 and PW47, it can safely be inferred that mobile bearing No. 'C' was being used by PW5 and his family including PW4.
119. Now coming to the mobile phone bearing no. 'E'. The said phone is proved to be issued in the name of Monu @ Sher Singh in terms of Ex. PW49/C (customer application form). The said phone bearing No. E was recovered from the possession of accused Monu in terms of Ex. PW45/S. Therefore, mobile phone E was owned and issued by accused Monu.
120. So far as mobile phone bearing No. F is concerned. Same is owned by PW19, nephew of the deceased K.T.Sameer and as per deposition of PW19 Ajmal Abdullaha, PW1 N.K.Afzal, PW7 Kaithal Shahir Ahmed and PW12 Sajid, the deceased was using the said mobile phone. Therefore the mobile phone bearing number 'F' was being used by the deceased and owned by PW19. Apart from this, it has also been proved on record that the accused was using the SC No.44/09 Page 100 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others ATM/credit card bearing No. X given by his employer which is proved on record by the IO vide Ex. PW53/E.
121. Now coming to the connectivity of the mobile phone being used by the accused persons and girl friend of the accused Anil with that of the mobile phone of the deceased. Accused Manish was using the mobile phone No. 'D' and in terms of the mobile phone details of mobile phone bearing No. D, there is a connectivity between the mobile phone number D of the accused Manish with mobile phone No. 'E' used by accused Monu and mobile phone bearing No. 'A' used by accused Anil as well as that of the mobile phone bearing No. 'B' which was being used by PW13 Vandana as detailed in foregoing paras at the relevant time i.e 10:00 pm to 12:00 pm in the intervening night of 10/11.10.2008. It is proved on record and no suggestion is being given to PW3 and PW13 that they had any acquaintances with the deceased or with owner of mobile number 'F'. Therefore, it can safely be held that the accused persons were making calls to PW3 and PW13 from the mobile phone number 'F' of the deceased on the fateful day as such connectivity of mobile phone of deceased is proved on record with those mobile bearing number 'B' and 'C' being used by PW13 Vandana and PW3 Rozy. It may also be noted that SC No.44/09 Page 101 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others mobile phone 'D' used by accused Manish is having a connectivity with mobile phone of the deceased bearing No. F at about 22:54:14 on 10.10.2008.
122. As detailed herein in the foregoing paras, it may also be noted that the mobile phone bearing No. 'C' was owned by PW5 and allegedly used by PW4 is also having a connectivity with mobile phone used by deceased as well as mobile phone of accused Anil bearing No. 'A' in the night of the incident. Similarly, there is connectivity with mobile phone allegedly used by PW13 Vandana bearing No. 'B' with that of the accused Anil as well as accused Manish bearing No. 'D' at the relevant time on the fateful day. There is also a connectivity between the mobile phone of deceased bearing No. 'F' and that of Vandana PW13 bearing No. 'B' in the intervening night of 10/11.10.2008. Similarly, call details connectivity is also there in between the mobile phones bearing No. 'F' of the deceased with that of the PW4 Rozy and mobile phone bearing No. 'D' used by accused Manish at about 10:0011:00 pm on the fateful day. Therefore, the prosecution has been successful in proving that the mobile phone number being used by the accused and the girl friends of the accused Anil is having connectivity in between those mobile phones as well as with the mobile bearing no. F used by the SC No.44/09 Page 102 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others deceased. Therefore the call details connectivity as discussed above leads to the irresistible conclusion that accused persons have abducted the deceased and talked from his mobile phone to PW4 Rozy and PW13 Vandana and such conduct of the accused persons is highly incriminating and demolishes the presumption of their innocence.
123. Now coming to the next link of the chain of circumstantial evidence as tried to be proved by the prosecution. The prosecution has tried to prove on record that the accused Manish and Monu were apprehended in the presence of PW7 on the basis of secret information and they suffered their disclosure statement and on the basis of their disclosure statement, it transpired that the deceased was kidnapped by all the three accused persons on the pretext of providing boarding, lodging and providing a girl also and took him towards Gurgaon by stating that the girl could not be arranged in Delhi and robbed him and killed him and snatched all his articles including ATM cards as well as mobile phones. The accused Manish has stated that he had used the taxi bearing No. DL 1T 6001 owned by PW34 Satya Prakash in committing the robbery and murdering the deceased. PW34 has admitted that he had received a notice under section 133 Motor Vehicle SC No.44/09 Page 103 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Act and he had given his written reply to the said notice but, thereafter, he has resiled from his earlier statement and turned hostile and in cross conducted by Ld. Addl. PP, he has admitted that in his reply Ex. PW34/A he had stated that he had given taxi bearing No. DL 1T 6001 to accused Manish at about 7:00 pm on 10.10.2008. He further denied that he had told police that he handed over the taxi to his brother Manish near arrival hall at Airport. Even though, this witness has turned hostile but his statement to the extent that he was owner of the said taxi and he admitted his signature in the reply in response to the notice issued by the police under section 133 Motor Vehicle Act is reliable. Even, it may be presumed that the said taxi had not been handed over by PW34 to his brother accused Manish but in view of the impecable testimony of PW6 Dr. Rajender Singh, who had taken the articles from the said taxi namely pieces of rear seat cover and two pieces of blood stained carpet and the said articles/parcels were examined by PW43 Dr. B.K. Mohapatra who has proved on record that the DNA profiling of the said articles taken from the said taxi match with the DNA of the son of the deceased. Therefore, it can be safely inferred that the deceased was abducted in the said taxi DL 1T 6001 before being robbed and murdered.
SC No.44/09 Page 104 of 129 SC No.44/09 FIR No.50/08PS:Palam Airport State Vs. Manish Kumar and others
124. Apart from this, accused Manish had got recovered Rs. 35,000/ from his house containing notes of the denomination of Rs. 500/ each and accused by getting his statement recorded under section 313 Cr.PC has not given any plausible explanation as to how he happened to be in possession of such huge amount. In addition to it, no complaint was made to higher authorities that the said amount has been planted on the said Manish.
125. Now coming to the recovery affected by accused Monu in terms of his disclosure statement. Accused Monu was arrested on 20.10.2008 alongwith accused Manish and accused Monu suffered a disclosure statement Ex. PW7/B and in the Ex. PW7/B he admitted in the presence of younger brother of the deceased that he robbed and murdered the deceased inconvenience of coaccused, PW7 has deposed that accused Monu has got recovered Rs. 45,000/ in the denomination of 90 currency notes of Rs. 500/ each, which were seized in terms of Ex. PW7/C and one mobile phone make "I mode JASJAR", which was seized vide seizure memo Ex. PW7/D. Accused Monu has also failed to explain any plausible explanation as to how he happened to be in possession of such huge amount as well as the mobile phone of the deceased.
SC No.44/09 Page 105 of 129 SC No.44/09 FIR No.50/08PS:Palam Airport State Vs. Manish Kumar and others
126. Similarly accused Anil was arrested. He made disclosure statement and accused Anil got recovered Noika Express music mobile phone from almirah of his house which was identified by this witness PW7. Accused Monu in his disclosure statement has stated that he had hidden the weapon of offence which is country made revolver by which he had killed the deceased in his house and mobile phone of the deceased in his sister's house at Rewari but in supplementary statement, he had submitted that said mobile phone he can get recovered from his house and he got recovered the country made revolver as well as the dagger (khanjar) and mobile phone of the deceased. It may be noted here that the said country made pistol was sent for FSL examination and PW50 Dr. A.R.Arora has proved on record that the bullet (Ex. P16) which was got recovered from the dead body of the deceased by the doctor was fired from the country made pistol Ex. P7. He has further deposed that the country made pistol which was received by him was not having stucked up any .5 mm empty cartridge/cartridge case, otherwise, it was 8 mm cartridge case and he had taken two live cartridge cases from lab for fire test and on the basis of microscopic examination, he has opined that the 8 mm crime fire bullet contained in parcel had been SC No.44/09 Page 106 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others fired from 8 mm country made pistol (W1) and not from any other fired arm. Therefore, prosecution has proved on record that the bullet (Ex P6) recovered from the dead body of the deceased was fired from the weapon of offence namely country made pistol got recovered at the instance of accused Anil. Accused Anil had failed to explain any explanation as to how he happened to be in possession of such huge amount of Rs. 60,000/ got recovered at his instance.
127. The contention of the counsel for the defence that in the seizure memo, the IO has mentioned that 0.5 mm empty cartridge was found stuck up whereas in FSL the empty cartridge was found of .8 mm, as such the weapon of offence is different from the one which got recovered at the instance of accused Anil is falacious and is hereby rejected as PW50 Dr. A.R.Arora has deposed that there is no calibre of .5 mm and the calibre starts from .8 mm and he found .8 mm empty cartridge stuck up in the weapon of offence i.e country made pistol. The mentioning of .5 mm in seizure memo by IO only appears to be a typographical mistake, otherwise, the sealed sample of this weapon was opened by FSL expert who found .8 mm cartridge in said weapon.
SC No.44/09 Page 107 of 129 SC No.44/09 FIR No.50/08PS:Palam Airport State Vs. Manish Kumar and others
128. Apart from that there was a golden opportunity for the accused to explain any they including circumstance during his examination U/s 313 CrPC. There also he choose to remain silent and did not offer any plausible explanation regarding his presence and how the deceased died of strangulation. Recording of statement of accused U/s 313 Crpc is not a mere formality. It is a statutory requirement which provides an opportunity to the accused to state his case and explain the exculpatory circumstances proved against him.
129. It is for the accused to either remain silent or provides answer to the question put to him. However, keeping silent and not furnishing any explanation for incriminating circumstances would sustain the charges against him.
130. It is obligatory on the part of the accused while being examined U/s 313 CrPC to furnish some explanation with respect to the incriminating circumstances associated with him and the court must take note of such explanation, even, in case of circumstantial evidence, in order to decide as to whether or not the chain of circumstances is complete when the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of crime and he fails to offer an SC No.44/09 Page 108 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others appropriate explanation with respect to the same, the said act may be considered as providing a missing link for completing the chain of circumstance. In this regard & found support from State of Maharashtra Vs Suresh (2000) 1 SCC 471, Musheer Khan VS State of M.P.(2010) 2 SCC 748.
131. It may be noted that the conduct of the accused person is getting recovered the mobile phones of the deceased as well as the weapon of offence i.e country made pistol and taxi bearing No. DL 1T 6001 and amount of recovery as well as pointing out of various ATMs from where amount was withdrawn by using ATM 'X' of the deceased is also relevant as their conduct under section 8 of the Evidence Act and such conduct is relevant in view of the observations made in Updesh @ Chintu vs State 2012IIAD(delhi) 626 is also relevant which is reproduced hereunder:
A perusal of the testimony of PW6, PW7 and PW8 shows that recovery of the arms and ammunition was made pursuant to his disclosure in case FIR No. 154/09. Thus, recording of a disclosure statement in the present case could not have taken place.SC No.44/09 Page 109 of 129 SC No.44/09 FIR No.50/08
PS:Palam Airport State Vs. Manish Kumar and others The contention of the learned counsel that recovery was not pursuant to disclosure statement of the appellant is liable to be rejected. The recovery of the articles is pursuant to disclosure statement which is admissible under section 27 of the Indian Evidence Act. The registration of FIR is not a sine qua non for the recovery to be effected. Recovery can be effected even on an oral disclosure statement. Further the conduct of the accused leading the police party to his house and the specific place in the house from where the recovery of arms and ammunitions is consequently made is also admissible under section 8 of the Evidence Act. Reference in this regard is made of Himachal Pradesh Administration vs. Om Prakash MANU/SC/0118/1971: (1972) 1 SCC
249.
132. So far as the recovery of country made revolver is concerned. Law has been well settled as laid down in Musheer Khan @ Badshah Khan Vs. State of Madhya Pradesh, 2010(2) SC No.44/09 Page 110 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others SCC 748 where it has been observed as under:
In para 20, page 662 of the report it was held when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the investigating officer is necessarily attested by independent witnesses. But if in a given case, no witness is present or nobody agrees to attest the memo, it is difficult to lay down as a proposition that the discovery must be treated tainted or that the discovery evidence is unreliable. In such a situation, the Court has to consider the report of the investigating officer who made discovery on its own merits.
133. It may be noted that the accused persons made joint pointing out memo from where they had withdrawn the amount by using the ATM card/credit card bearing No. X after robbing and murdering the deceased in terms of Ex. PW45/H from ICICI Bank, SBI ATM at petrol pump from Bharat Petroleum, IGI Airport in terms of Ex. PW45/K from HSBC ATM at petrol pump, Shanti Path Ex. PW45/L from Axis Bank ATM at Gol Dak Khana SC No.44/09 Page 111 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others in terms of Ex. PW45/M from HSBC ATM at Mega Service Station Patpar Ganj in terms of Ex. PW45/N, Standard Chartered Bank ATM at Vasant Lok, Vasant Vihar in terms of Ex. PW45/O. IO moved an application before the concerned bank for getting the detail of the amount withdrawn by the accused persons by using the ATM bearing No. X belonging to the deceased and the standard Chartered Bank Manager PW14 had supplied the video clipping of the ATM vide Ex. PW14/A and the transaction carried out by using credit card bearing No. X of the deceased in terms of Ex. PW14/B. It may be noted here that the Manager of HSBC, Ashoka Building, Connaught Place had given the report on the application moved by the IO for providing the ATM card details of card bearing No. X of the deceased and PW15 has proved on record that the said card bearing No. X was found blocked in the ATM, Patparganj and that has been destroyed on 14.10.2008 in terms of Ex. PW15/A. The details of all such withdrawals w.e.f 11.10.2008 to 13.10.2008 from different bank 's ATMs are as under:
ATM Site Withdrawal Amount ATM of SBI, CNG Station, Rs. 1000, Rs. 5,000/ and Rs. Bharat Petroleum, IGI Airport 4,000/ as per Ex. PW16/A. ATM of HSBC ank, Shantipath Rs. 5,000/, Rs. 10,000/ and Rs.
50,000/ SC No.44/09 Page 112 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others ATM of Axis Bank, Gol Rs. 40,000/ and Rs. 60,000/ Dakkhana as per Ex. PW17/A ATM of HSBC Bank, Mega CNG No money could be withdrawn Station, Patparganj as ATM card retained by the ATM machine.
ATM of Standard Chartered Rs, 10,000/ Bank as per Ex. PW14/B. ATM of HSBC Bank, Rs. 15,000/ and Rs. 8,000/. Shantipath as per Ex. PW29/B.
134. Information given by accused person is also relevant under section 8 of Indian Evidence Act as their conduct which incriminate them and destroys the presumption of their innocence as well as in the absence of any plausible explanation, pinpoints to their guilt. The conduct of the accused persons before, on or after the robbery and murder of the deceased is relevant as the same destroys the presumption of innocence of the accused persons. The IO was informed about the blocking of ATM card bearing No. X of the deceased and after the said information supplied to him by three accused persons jointly and such information was confirmed by the Manager of HSBC Bank, therefore, this part of information supplied by accused persons vide which the ATM of deceased was found blocked at ATM of Patparganj as well as other information regarding withdrawal of money by accused persons SC No.44/09 Page 113 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others as discussed above in foregoing paras is relevant under section 27 of Evidence Act, otherwise also joint pointing out memo are relevant and such piece of evidence is admissible as per mandate of section 27 of Indian Evidence Act.
135. A conjoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
136. The Hon'ble Supreme Court in the case of K.Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", SC No.44/09 Page 114 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under:"
Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......" ".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in SC No.44/09 Page 115 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused SC No.44/09 Page 116 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
137. After considering the settled principles the Hon'ble Apex Court observed as under:
SC No.44/09 Page 117 of 129 SC No.44/09 FIR No.50/08PS:Palam Airport State Vs. Manish Kumar and others ......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature.
138. It was further observed as under:
Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is SC No.44/09 Page 118 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument.
In the first place S. 27 itself says that where the statement distinctly relates to the SC No.44/09 Page 119 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on SC No.44/09 Page 120 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others to make rather strong remarks about other parts of the evidence.
139. Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evidence Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused. The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of SC No.44/09 Page 121 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
140 In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles SC No.44/09 Page 122 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
141. In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object.
The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible.
142. I also do not find any substance in the contention of SC No.44/09 Page 123 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others the defence counsel that the joint pointing memo made by all accused persons is not admissible as the said information which is alleged to have been supplied by accused persons was already in the knowledge of IO as PW1 and PW12 have deposed that the details of such withdrawal was received by them from Saudi Arabia by fax as no suggestion has been given to these witnesses as to whether such information was given by them to police nor any suggestion has been given to any police witnesses including IO as to whether the details of such withdrawal of money from different ATM in Delhi by using the ATM card bearing No. X of the deceased was within their knowledge before the accused persons made joint pointing out memo. Therefore it can safely be concluded that it was only after joint pointing out memo made by accused persons is pursuant of their earlier separate disclosure statements, the said information came into the knowledge of IO and that is why he moved application for supplying details of such withdrawal of money from their respective ATM by using ATM bearing No. X of the deceased and, therefore, such information is relevant as discussed in foregoing paras.
143. So far as defence evidence is concerned. It may be noted that accused have tried to put forward defence that they SC No.44/09 Page 124 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others had been arrested by Delhi Police Officer from Shimla and falsely implicated in the present case. In this regard, DW1 and DW2, have testified that three persons were detained namely Anil, Monu and Manish at the request of Delhi Police and they remained in the police station whole night whereas DW3 and DW4 have deposed that they had gone to Shimla and inquired from the accused persons regarding missing of a NRI and those boys had told the police that they were having Gujarati passengers who were staying at a hotel in Shimla. DW3 and Dw4 have testified that they have not brought the said three boys to Delhi and they had only inquired and thereafter the said persons were left at Shimla itself and DW3 and Dw4 returned to Delhi. DW6 who has testified that three boys travelling in vehicle No. DL 3CK 2997 were detained in the police station as they were required by Delhi Police in case under section 364 IPC. From the joint reading of the defence witness, it can only be inferred that the accused persons were apprehended by Shimla police, Himachal Pradesh at the request of Delhi Police and Delhi Police officials interrogated them and let them off by asking them to report in the police station IGI Airport. Therefore, it can not be proved on the record that the accused were apprehended and arrested by the Delhi Police at Shimla, otherwise, they were enquired and let them off by Delhi police SC No.44/09 Page 125 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others officials. Therefore, question of the accused being implicated in this case falsely is devoid of merits and deserves to be rejected.
144. Therefore, the prosecution has proved the following facts:
(i) That the deceased was working in Saudi Arabia with the company namely Muthhala Trading Est. and was provided an ATM card bearing No. X in terms of Ex. PW53/E.
(ii) That the deceased arrived in India on 06.08.2008 as deposed by his relatives and he was having two mobile phones and using the mobile phone No. 'F' owned by his nephew PW19 after reaching India.
(iii) It has proved on record that the deceased arrived at Delhi Airport and, thereafter, all his contacts with his relatives including his employer had snapped in the intervening night of 10/11.10.2008.
(iv) The deceased went missing and his relatives tried to know the whereabouts of the deceased and information was supplied by his employer that ATM card bearing No. X belonging to the deceased has been operated in and around the area of IGI Airport, Delhi.
(v) The relatives of the deceased including PW1, PW7 and PW12 came to Delhi and reported the mater and got recorded SC No.44/09 Page 126 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others the alleged missing report and DD entry in this regard.
(vi) IO collected the call details of the mobile phone bearing No. X of the deceased and it transpired that the said number is having connectivity with the mobile phone 'A to E' belonging to the accused persons and used by them as well as the girl friend of accused Anil.
(vii) The accused were apprehended and in terms of the disclosure statement, accused Manish pointed out the car in which the deceased was kidnapped and DNA report has proved on record that blood stains were found on the carpet and back seat of the said car were matching with DNA profiling of the son of the deceased such recovery is relevant and admissible under section 27 of Indian Evidence Act.
(viii) The accused Manish was found in possession of Rs.
35,000/ and failed to explain as how he came to possession of the said amount.
(ix) Accused Monu got recovered Rs. 45,000/ and failed to explain as how he happened to possess such amount.
(x) Accused Monu also got recovered the mobile phone of the deceased which is also identified by PW7 as belonging to the deceased.
(xi) Accused Anil got recovered the amount of Rs. 60,000/ and a mobile phone of accused from his house and failed to explain SC No.44/09 Page 127 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others as how he came to possession of the said amount.
(xii) Accused Anil also got recovered fire arm i.e country made revolver Ex. P7 with which the deceased was killed as DNA profiling as well as FSL report confirms that the bullet Ex.P6 recovered from the body of the deceased was fired from the weapon got recovered by the accused Anil in terms of the disclosure statement.
(xiii) On the joint pointing out memo of the three accused persons, IO moved applications to respective banks for supplying the details of the amount withdrawn from their ATM by using the ATM card bearing No. X in possession of the deceased has come on record that hefty amount has been withdrawn by using the ATM card of the deceased such conduct of the accused person is highly incriminating and relevant under section 8 of Indian Evidence Act as well as admissible under section 27 of the Indian Evidence Act.
(xiv) Dead body of the deceased was found lying at village Binala PS Bilaspur, Gurgaon and after having got buried at Gurgaon, thereby, it has been proved that deceased died homicidal death.
(xv) ATM location of the mobile phone of the deceased at the time of incident happened to be at IFCO Chowk, Gurgaon. (xvi) The cell ID location of accused Manish is also towards SC No.44/09 Page 128 of 129 SC No.44/09 FIR No.50/08 PS:Palam Airport State Vs. Manish Kumar and others Gurgaon in the night on the fateful day.
145. From the above discussion, I am of the opinion that prosecution has proved every link in the chain of circumstantial evidence that the deceased was abducted, robbed and murdered and his dead body was thrown in the area of PS Bilaspur, Gurgaon by the accused persons. Therefore, accused persons Manish Kumar, Monu and Anil Kumar are hereby convicted for the offence punishable under section 302/364/392/394/201/34 IPC and accused Anil is hereby convicted for the offence punishable under section 397 IPC read with section 25 Arms Act.
146. Put up for order on sentence on 07.06.2013 Announced in the open court (Vijay Kumar Dahiya) on the 30th Day of May 2013 ASJ/ Dwarka Courts New Delhi/30.05.2013 SC No.44/09 Page 129 of 129