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Fir No. 317/10; State vs . Anoop Kumar Etc. Page 1 Of 75 on 30 September, 2014

IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS 
                             JUDGE­03:NW:ROHINI:DELHI

SESSIONS CASE NO. 26/13

                                             FIR No.             317/10
                                             P.S.                Ashok Vihar 
                                             U/S:                302/394/397/120B/34 IPC
  
STATE 
                                              Versus

(1) Anoop Kumar 
s/o Sh. Ram Avtar 
r/o Ward No. 18, Mohalla­Hazipur,
Stadium Road, Bareilly, UP

(2) Sangeeta 
w/o Anoop
r/o E­104, Wazirpur, JJ Colony,
Delhi

(3) Vijay Kumar @ Babloo 
s/o Sh. Vishram Singh, 
r/o Mahrinath Mohalla, PS Subhash Nagar, 
Railway Crossing Chhoti­Badi Line, 
Bareilly, UP. 

Date of Institution:                22.02.2011
Date of arguments:                  30­09­2014
Date of judgement:                  30­09­2014

  FIR  No.  317/10; State Vs.  Anoop Kumar Etc.                                    Page  1 of 75
 JUDGMENT

1. The case of the Prosecution, in brief, is that on receipt of DD no. 18A dt. 19.11.2010 at 02.15 pm, IO / Inspector Pratap Singh along with staff reached at H. No. I­197, Ashok Vihar, Phase­I, Delhi where Sh. Vijender Gupta told that the house belonged to them and his father was living there. At the ground floor, main gate was closed and a lock along with keys was hanging there. After entering the house, it was found that Sh. Ram Avtar Gupta was lying dead on the floor of drawing­cum­bedroom. There were injuries on his neck and blood around his body. In the other rooms, almirahs were open, articles were disturbed and house was ransacked. Some burnt documents were found in the backside portion of the house. Sh. Vijender Gupta gave his statement that he along with his family and brother were residing at C­6, Bhagwan Dass Nagar, Punjabi Bagh, Delhi­26 and doing the work of share trading. On 19­11­2010 at about 12.45 pm, his younger brother Surender Gupta telephonically informed him that he had been informed over phone by the police persons of PS Mahendra Park that their car make Swift bearing no. DL7CD­8474 of silver colour was found abandoned. This car used to be with his father Sh. Ram Avtar Gupta at I­197, Phase­I, Ashok Vihar. He tried to contact his father but in vain and thereafter he FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 2 of 75 along with his brother came at I­197, Phase­I, Ashok Vihar. He remained there and his younger brother Surender went to Mahendra Park to see the car. He saw the main gate of ground floor closed where his father was living and latch was fixed but the lock with its key was hanging there. He called the police at number 100. After arrival of police, the door was opened and he found his father lying on the floor in the bedroom in a pool of blood and he was dead. There was cut marks on the neck of dead body. The articles were scattered in the rooms and almirahs were opened. Some papers were burnt in the backside of house. Two mobiles phones of his father having no. 9958541964 and 9350742499 were found missing. On this statement/ complaint, IO sent Ct. Anil Kumar for registration of the case. Crime Team was called and IO obtained the SOC report from Crime Team. IO prepared the site plan at the instance of complainant Vijender Gupta. Exhibits from the spot were taken into possession. Dead body was shifted to Mortuary, BJRM Hospital. FSL team was called at the spot and inspection of burnt papers was done. On 20.11.2010, postmortem on the dead body was got conducted and thereafter, pullandas handed over by doctors were deposited in Malkhana. During investigation, it was revealed that deceased Ram Avtar Gupta was using three mobile nos. FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 3 of 75 9278032437, 9958541964 and 9350742499 which were also missing. CDR of above phones were obtained which revealed that on 18.11.2010, in the evening time there was incoming and outgoing calls on phone number 9958541964 from phone No. 32057941 which was number of a PCO at Wazirpur village. The diary and other papers of deceased were checked and a phone number 9211110551 in the name of Usha was found. The CDR of Usha showed that from the PCO no. 32057941, call was made to the phone of Usha also. On inquiry from Usha, it was revealed that her daughter Sangeeta performed love marriage with her bhanja Anoop without her consent and they were residing at Wazipur Village. Usha also told that Sangeeta and Anoop went to the house of Anoop at Barelley. From the house of Anoop at Barelley, it was found that they had already gone to Delhi.

2. It is further the case of the prosecution that on 24.11.2010 on an information, a raid was conducted at WP­87, Wazirpur Village where accused Anoop and Sangeeta were found. Both accused gave disclosure statements and confessed their guilt. They also disclosed about the involvement of Vijay Kumar @ Babloo in the crime. Accused Sangeeta disclosed that they all came to Wazirpur village in the rented room and checked the looted amount FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 4 of 75 which was Rs. 22,000/­ cash, some foreign currency, three mobile phones. Rs. 6,000/­, one Nokia phone, five foreign currency notes were given to Babloo and Rs. 16,000/­, two mobile phone make Reliance and Tata and some foreign currency came in their share. They bought one mangalsutra in Rs. 8,000/­ and one TV and DVD in Rs. 5,000/­ and spent some money on foods and Rs. 510/­ were left with them. Accused Sangeeta and Anoop were arrested. Two mobile phones and 40 foreign currency notes were recovered from accused Anoop and Rs. 510/­ were recovered from accused Sangeeta. The mangalsutra, TV and DVD player bought from the looted amount were taken into possession. In the meanwhile, one person came to WP­87, Wazipur village and after seeing the police tried to go back but he was overpowered and his name was revealed as Vijay Kumar @ Bablu. He was also interrogated who confessed in consonance with the confession of Sangeeta and Anoop. Accused Vijay Kumar @ Babloo was also arrested. The looted mobile phone make Nokia, five foreign currency notes and remaining amount of Rs. 1820/­ from looted money were recovered from the possession of accused Bablu. Thereafter, the faces of all the three accused were muffled and on their instance, they reached at WP­304, Shubham Jewellers, Wazirpur village where goldsmith Sh. FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 5 of 75 Shambhaji Patil admitted that the mangalsutra was sold from his shop on 21.11.2010. IO recorded the statement of jeweller. Thereafter, at the instance of accused persons, they reached at WP­302, Wazirpur Village at Vishal Electronics where the recovered TV and DVD player were shown to the shopkeeper Sh. Niyamat Ali Mullah who told that on 21.11.2010 the said TV and DVD were sold out from his shop vide Bill No. 526. His statement was also recorded. Thereafter, from backside of Murga (chicken) Market, at the instance of accused Anoop the key of car No. DL­1SS­2575 belonging to deceased and knife used in commission of the offence at the instance of accused Vijay Kumar @ Babloo were recovered. The accused pointed out the place of incident and the place where the car was abandoned by them. Sh. Shiv Kumar Verma, neighbour of deceased Ram Avtar Gupta saw a lady entering in the house of deceased Ram Avtar on 18.11.2010 and also saw two persons standing outside the house of deceased and he correctly identified accused Sangeeta, Anoop and Vijay Kumar @ Bablu in the judicial TIP. The driver of deceased namely Rajeev correctly identified the key of the car in judicial TIP. IO Inspector Pratap Singh got the scaled site plan of the spot prepared from draughtsman SI Manohar Lal. The Swift car bearing no. DL­7CD­8474 of deceased which was FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 6 of 75 in PS Mahendra Park u/s 66 DP Act, was taken into police possession in the present case. The certified copies of CDR of mobile numbers of deceased i.e. 9278032437, 9958541964 and 9350742499 were obtained. PM report was also obtained. The subsequent opinion from postmortem doctor regarding weapon of offence i.e. both the knives was taken. The chance print taken by Crime Team were sent to Finger Print Bureau for comparison with prints of accused persons. Exhibits were deposited with FSL, Rohini. After completion of investigation, charge­sheet was filed against the accused persons namely Sangeeta, Anoop Kumar and Vijay Kumar @ Bablu u/s 302/394/397/120B/34 IPC.

3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 392/302/34 IPC was framed against all three accused and separate charges u/s 397 IPC were also framed against accused Anoop Kumar and Vijay Kumar @ Bablu to which they pleaded not guilty and claimed trial.

4. In order to prove its case, prosecution examined 32 witnesses. PW1 Ct. Dalbir took photographs of the spot and proved the negatives as Ex. PW1/A1 to PW1/A23 and photographs as Ex. PW1/A24 to PW1/A46. PW2 SI Mahesh Chand, in his testimony proved his crime report as Ex. PW2/A. PW3 Vijender Gupta, in his FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 7 of 75 testimony proved his statement / complaint as Ex. PW3/A, seizure memo of one blood stained vegetable cutting knife, blood stained piece of sofa cover, two towels, leather slippers, blood sample, blood stained floor and plain floor as Ex. PW3/B; seizure memo of two glass tumblers, liquor bottle make Peter Scot, four steel plates, three bowls, one glass tumbler, one carton of Peter Scot bottle vide Ex.PW3/C; seizure memo of one iron khunti, lock and key vide Ex. PW3/D; seizure memo of ashes of burnt papers vide Ex. PW3/E; seizure memo of telephone diary/ pocket diary vide Ex. PW3/F. PW3 also proved his dead body identification statement as Ex.PW3/G. PW3 identified the diary Ex. P1; the knife Ex.P2 which was recovered from the spot, the piece of rexine sheet having blood stains as Ex.P3, towels as Ex.P4 & P5, slippers as Ex.P6, blood stained cotton as Ex. P7; the blood stained marble pieces as Ex.P8, the lock as Ex.P9, keys as Ex.P10 and the iron khunti as Ex.P11, two glasses Ex.P12 & P13, liquor bottle along with its container as Ex.P14 and the other one glass tumbler, found steel plates and three steel bowls are collectively Ex.P15. PW3 also identified the contents of the cartons which were seized from the back courtyard of the spot as Ex.P16 (collectively). PW4 HC Pradeep Kumar in his testimony proved the copy of DD no. 32B as Ex.PW4/A. PW5 SI Ritesh, in his FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 8 of 75 testimony proved DD no. 57B as Ex.PW5/A and DD no. 25B as Ex. PW5/B. PW6 Sanjeev Lakra, Alternate Nodal Officer, Reliance Communication Ltd., in his testimony proved the CAF in the name of Ram Avtar Gupta along with the ID and photocopy of DL as Ex. PW6/A, the call details of mobile No. 9350742499 from 01.11.2010 to 20.11.2010 as Ex.PW6/B and certificate u/s 65B of Indian Evidence Act as Ex. PW6/C.

5. PW8 SI Surjit Singh, in his testimony proved the computerised copy of FIR as Ex. PW8/A; his endorsement on the rukka as Ex.PW8/B, photocopies of DD nos. 17­A, 18­A and 19­A all dated 19.11.2010 as Ex.PW8/C to Ex.PW8/E, photocopy of DD No. 23A as Ex.PW8/F and photocopy of DD no. 27A as Ex.PW8/G. PW9 Shiv Kumar Verma, in his testimony, proved the TIP proceedings of accused Anoop, Vijay Kumar and Sangeeta vide Ex. PW19/A, PW19/C and PW9/X respectively. PW12 Sambhaji Patil, in his testimony exhibited the Mangalsutra as Ex. P­12/1 which he sold to three persons. PW13 Niyamat Ali, in his testimony proved the bill No. 526 dated 21­11­2010 as Ex.PW13/A vide which he sold a TV Ex. PW13/1 and DVD player Ex. PW13/2. PW14 SI Manohar Lal in his testimony proved the scaled site plan as Ex.PW14/A. PW16 Dr. K. Goel, CMO, Aruna Asaf Ali Government Hospital, in FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 9 of 75 his testimony proved the postmortem report as Ex.PW16/A of deceased Ram Avtar Gupta, the sketches of knives as Ex. PW16/B, his opinion as Ex.PW16/C. PW17 Manish Kumar Singh, Asstt. Nodal Officer, Tata Tele Services Ltd., in his testimony proved the certified copy of CDR of mobile No. 9278032437 in the name of Prabhu Mukhia for the period from 01.11.2010 to 20.11.2010 as Ex. PW17/A, photocopy of application form as Ex.PW17/B, photocopy of voter I­Card of Prabju Mukhia as Ex.PW17/C, certified copy of location chart of the aforesaid mobile as Ex.PW17/D and certificate u/s 65B of Indian Evidence Act as Ex.PW17/E. PW18 Ct. Ram Kishan, in his testimony proved his report regarding finger prints as Ex.PW18/A and his report regarding four chance prints as Ex.PW18/B. PW19 Sh. V.K. Jha, Ld. Civil Judge, Rohini Courts, Delhi, in his testimony proved the TIP proceedings of accused Anoop as Ex.PW19/A, application moved by IO Inspector Pratap Singh for conducting TIP of accused Vijay Kumar @ Babloo as Ex.PW19/B, TIP proceeding of accused Vijay Kumar @ Babloo as Ex.PW19/C and the application of IO for supply of copy of TIP proceedings as Ex.PW19/D. PW19 also proved the application of IO for TIP of case property vide Ex.PW19/1, TIP of case property as Ex.PW19/2, application of IO for conducting the TIP of accused FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 10 of 75 Sangeeta and Anoop as Ex.PW19/3 and application of IO seeking copy of TIP proceeding as Ex.PW19/4. PW21 Ct. Babu Lal, in his testimony proved the copy of the DD No. 19A as Ex.PW21/A and seizure memo of four sealed parcels handed over by the doctor as Ex. PW21/B.

6. PW22 ASI Asha, in her testimony proved the arrest & personal search memos of accused Sangeeta as Ex.PW22/A and Ex.PW22/B respectively; disclosure statement of accused Sangeeta as Ex. PW22/C; seizure memos of Rs. 510/­ and clothes worn by her at the time of incident vide Ex.PW22/D and Ex.PW22/E, seizure memo of TV, one DVD player and one Mangalsutra as Ex.PW22/F, pointing out memo of place where accused left the vehicle as Ex.PW22/G. PW22 identified the remaining looted amount of Rs. 510/­ as Ex.PW22/1 (collectively), the Salwar and Kurta as Ex.PW22/1 and PW22/2 and the jeans pants as Ex.PW22/3 and shirt as Ex.PW22/4. PW23 HC Banar Singh, in his testimony proved the photocopy of RC No. 88/21 as Ex. PW23/A, photocopy of register no. 19 as Ex. PW23/B and Ex. PW23/C. PW24 HC Mukesh Kumar, in his testimony proved the entries of register no. 19 vide serial No. 3476, 3477, 3480, and 3500 as Ex. PW24/A to PW24/D; copy of RC no. 90/21/10 as Ex.PW24/E, copy of RC no. 91/21/10 as FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 11 of 75 Ex.PW24/F, copy of receipt as Ex.PW24/G, copy of RC no. 90/21/10 as Ex.PW24/G and copy of receipt as Ex.PW24/H. PW25 Tarun Khurana, Nodal Officer, Bharti Airtel Ltd., in his testimony proved the ownership record of mobile number 9958541964 in the name of Ram Avtar Gupta as Ex. PW25/A, CAF of Mr. Ram Avtar as Ex.PW25/B, attested copy of identity of the customer as Ex.PW25/C, the call detail record from 01.11.2010 to 20.11.2010 as Ex.PW25/D, location chart running into three pages as Ex.PW25/E, the certificate u/s 65B of Indian Evidence act as Ex.PW25/F. PW26 SI Haroon, in his testimony proved the arrest memo of accused Anoop as Ex.PW26/A, personal search memo of accused Anoop as Ex.PW26/B, disclosure statement of accused Anoop as Ex.PW26/C, seizure memo of 40 currency notes and two mobile phones as Ex.PW26/D, arrest memo of accused Vijay @ Babloo as Ex.PW26/E, personal search memo of accused Vijay @ Babloo as Ex.PW26/F, disclosure statement of accused Vijay @ Babloo as Ex.PW26/G, seizure memo of foreign currency notes and mobile phone make Nokia as Ex.PW26/H, seizure memo of knife which was used by accused Vijay @ Babloo as Ex.PW26/J, seizure memo of key of the car as Ex.PW26/K, separate pointing out memos of place of incident as Ex.PW26/L, Ex.PW26/M and Ex.PW26/N, separate FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 12 of 75 pointing out memos of the place where accused left the car near village Bhadola as Ex.PW26/P, Ex.PW26/Q and Ex.PW22/G. PW26 further identified the Rs. 510/­ as Ex. PW22/1 got recovered by accused Sangeeta; one mobile phone make Nokia 6070 with battery, bearing IMEI No. 352940022402664, Rs. 1820/­, two American dollars, one Sri Lankan rupee note of Rs. 20/­, two currency notes of UAE of 20 Dirham and 10 Dirham recovered from accused Vijay as Ex.PW26/1; one black colour bag, one black coloured pants and one full sleeves shirt of cream and light blue colour having strips as Ex. PW26/2 recovered from accused Vijay; one mobile phone of Tata Indicom, having battery and the model of phone is HUAWEI C2809 IMEI No. A000001A347EBO, one other mobile phone of Reliance LG with battery, model No. LG RD3610 made in China and on the back cover there is a sticker mentioning thereon 'guarantee six months' and some writing with the red colour ink and one another sticker sticked inside the back cover, 40 foreign currency nots, out of which six of Malaysia i.e. one in the denomination of 5, three in the denomination of 10, one in the denomination of 50 and one in the denomination of 100, ten notes of Sri Lanka i.e. one in the denomination of 1000, one in the denomination of 50 and two in the denomination of 20; 12 notes of FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 13 of 75 Nepal i.e. two in the denomination of 50, seven in the denomination of 20, one in the denomination of 10 and two in the denomination of 5; 12 American Dollars i.e. 11 in the denomination of 1 Dollar and one in the denomination of 5 Dollar recovered from the accused Anoop. The mobile phone make Reliance LG is Ex.PW26/3, mobile phone make Tata Indicom as Ex.PW26/4 and the foreign currency notes are collectively Ex.PW26/5. PW26 also identified the key recovered by the accused Anoop as Ex.PW26/6, the knife got recovered by accused Vijay Kumar as Ex.PW16/1.

7. PW27 Surender Gupta, in his testimony proved his statement recorded by the police as Ex. PW27/A. PW28 Santosh Tripathi, Sr. Scientific Officer, in his testimony proved his report regarding blood analysis as Ex. PW28/A. PW29 SI Gyanender Singh, Finger Prints Bureau, in his testimony proved his detailed report as Ex. PW29/A; description report of identical point prepared by him as Ex.PW29/B, the enlarged photograph of identical chance prints marked Q1 and enlarged photograph of specimen left thumb impression of Anoop Kumar marked as S4 affixed on Ex.PW29/C, photograph of chance print marked Q1 at point X and photograph of specimen marked S4 at point Y on Ex. PW29/C and also identified the specimen finger impression slip as Ex. PW29/D. PW32 ACP FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 14 of 75 Pratap Singh, Ashok Vihar, Delhi, in his testimony proved DD no. 18A as Ex. PW32/A, rukka prepared by him as Ex. PW32/B, rough site plan prepared by him as Ex. PW32/C, the telephone diary of deceased as Ex. PW32/P1, request form for post mortem as Ex.PW32/D, brief facts of the case as Ex. PW32/E, the form No. 25.35(1)(B) as Ex. PW32/F, FSL result as Ex. PW32/G and its serological report as Ex. PW32/H. PW32 identified the case property. He identified the blood stained shirt, blood stained baniyan, blood stained payjama and blood stained underwear which were worn by deceased at the time of incident as Ex. PW32/PX (collectively) and one lungi by which the hands of the deceased were tied from behind as Ex. PW32/PX1.

8. Statements of all the accused persons were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. All the accused persons except accused Sangeeta opted not to lead defence evidence. Later on, accused Sangeeta did not produce any defence witness and DE was closed.

9. I have heard the Ld. counsel for the accused Anoop and Sangeeta, Ld. Amicus Curiae for accused Vijay Kumar @ Babloo and the Ld. Addl. PP for the State and have perused the entire records.

FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 15 of 75

10. Ld. Amicus Curiae for the accused Vijay Kumar @ Babloo argued that accused Vijay Kumar @ Babloo has been falsely implicated in this case and there is nothing incriminating against him on record. There is neither medical nor forensic evidence against the accused. In the chargesheet, the name of accused Sangeeta has been mentioned. There is no statement of Usha, mother of accused Sangeeta. Police did not make any witness regarding Bareily, UP and they concluded that accused Sangeeta and Anoop had gone to Bareily. There is no evidence how accused Vijay Kumar @ Babloo is connected with co­accused Sangegeta and Anoop. PW9 Shiv Kumar is a planted witness. He immediately did not disclose to the police regarding what he saw before the murder. There is contradiction between the PWs about light. There is no observation of doctor regarding bent knife. During cross­ examination, PW26 stated that the place from where the knife was recovered was at a far distance of backside of Murga Market and that place was easily accessible to the general public. The police premeditated that at the time of arrest, one lady would be co­ accused. Circumstance never proved whether the male and female were the same. There is no recovery at the instance of accused Sangeeta. No finger prints of accused Vijay Kumar @ Babloo were FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 16 of 75 found from house or vehicle. IO offered for their search but no memo was prepared. There is contradiction regarding recovery of knife. Manner and mode of recovery of knife is not proved by the prosecution. The arrest of accused is doubtful. There is no witness that accused Vijay Kumar was in Delhi at the time of incident. If it is assumed that the recovered currency is the same but has not connected with the case. Ld. Counsel for accused Vijay Kumar, in support of his arguments, relied upon the judgements reported in the cases of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200; Kamal Kishore & Anr. Vs. State of Delhi, 2014 IV AD (CRI.) (DHC) 142.

11. The Ld. Counsel for accused Anoop Kumar and Sangeeta argued that no liquor bottle is seen in the photographs except the cover of the bottle and only plastic bottle is seen. If bottle is not seen in the photographs, then from which bottle the finger prints were taken. PW3 was not living with his father. PW3 waited for police and stood outside. Why he did not enter the house to see the condition of his father. Even he did not ask from the neighbours. How PW3 came to know that foreign currency of his father was missing. The telephone diary of deceased was not got verified/ checked from experts whether handwriting was of deceased or not. FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 17 of 75 Why PW3 started to come 10­15 days prior to the incident to the deceased and not before that period. How, PW3 came to know that his father used to change maid servants. PW3 knew everything about his father but he had no idea how much salaries were given to the maid servants. PW3 admitted that police did not make any inquiry from the tenant in his presence. PW3 stated about one glass. The lock was not found broken and key was also there. Liquor bottle, diary and other glass were planted in this case. The finger prints on the car were planted. PW7 requested the deceased to accompany him to Rajwara Place as he was invited by the owner of Rajwara Place for dinner but he declined as he called a lady for preparing loaf. The Ld. counsel for accused Anoop and Snageeta also argued that PW9 is the witness on whose statement/ evidence the accused persons have been involved. If PW9 was knowing the deceased for the last 20 years, why he did not inform to the sons or any other person or to the police about the accused persons. PW9 was a good friend of deceased and he said that there was a maid servant. The Ld. Counsel for accused persons referred the call details and argued that he was there at that time and he heard the call at 20:35 pm. PW9 changed his statement during cross­ examination and even, he improved his statement. When PW9 had FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 18 of 75 seen that one lady and two gents were talking, he did not tell to anybody about this fact. PW9 told only on 20­11­2010 which shows that he is the planted witness. Even, he did not call at 100 number. Last seen witness means that he had seen the accused persons and the deceased. Accused Sangeeta was not seen by PW9 prior to the incident.

12. The Ld. counsel for the accused Anoop Kumar and Sangeeta further argued that PW10, the driver of the deceased is also a planted witness. If PW10 saw the accused Sangeeta before 2/3 months of the incident then, what about the statement of Vijender, son of deceased that his father used to change maid servants frequently. The diary was not recovered from the deceased. One tenant was residing at the upper floor but he was neither investigated nor he was made a witness. Police went to Bareilly, UP but they did not inquire from the said tenant. Accused Sangeeta was shown in the PS. No witness of finger prints was examined. Two/ three persons means both male and female. If PW10 was on leave on 19­11­2010, then what about his previous statement. PW12 also did not support the case of prosecution. No evidence was provided by him that the same mangalsutra was sold by him. When the chance prints were lifted, no identification was FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 19 of 75 made by the son of the deceased. The recovery of foreign currency is not clear. The currency may be from anywhere. How the accused can keep the blood stained clothes for such a time. The Ld. Counsel for accused Anoop Kumar and Sangeeta, in support of his arguments, relied upon the judgements reported in the cases of Mukeem @ Anr. Vs. State (NCT of Delhi), 2012 [4] JCC 2608; Chhingaram Vs. State of Madhya Pradesh, 2008 (1) Crimes 8 (MP); Ramreddy Rajeshkhanna Reddy & Anr. Vs. State of Andhra Pradesh, 2006 (2) Crimes 73 (SC); Rohit Dhingra & Anr. Vs. State, 2012 [2] JCC 820; Mukesh Kumar @ Pilwa @ Chuha Vs. State / Ranjeet Vs. State, 2012 [2] JCC 920; Janardan Sada @ Matua Vs. The State ( NCT of Delhi), 2012 [2] JCC 1435; Kamla Devi Vs. State of Delhi, 2012 [2] JCC 1457; Surendra Vs. State of Rajasthan, 2012 CRI.L.J. 2096; Anoop Kumar Konkde Vs. State, 2011 [3] JCC 1938; Krishnan & Ramasamy & Ors. Vs. State of Tamil Nadu, 2014 [3] JCC 1785; State Vs. Rakesh, 2014 (2) Crimes 132 (Del.); Vijay Kumar Vs. State of Rajasthan, 2014 [2] JCC 888; Bikal Bhanot @ Vicky Vs. State (NCT of Delhi), 2014 (2) Crimes 281 (Del.); Jaffar @ Raju Vs. State / Sajid Ali @ Moni Vs. State, 2013 [2] JCC 1175 and Ravi Kumar @ Sonu & Ors. Vs. State / Ashwani Dubey & Chhanwa Vs. State, 2013 [2] JCC 1394.

FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 20 of 75

13. The Ld. APP for State argued that murder of Sh. Ram Avtar Gupta was committed in a brutal manner and the last seen witness has proved the presence of accused persons at the spot. There is a chain of evidence in this case. There is recovery of two knives, liquor bottle, utensils, burnt papers, lock & key, small telephone diary, mobile phone, Indian and foreign currency, mangalsutra, DVD player, TV purchased from looted amount by accused Sangeeta and Anoop, two mobile phones, 40 foreign currency from accused Anoop, Rs. 510/­ from accused Sangeeta, key of car, clothes worn by accused Sangeeta and Anoop on the day of incident. Statements of jeweller and electronics shopkeeper were recorded who confirmed the sale of mangalsutra and electronic items from their shop. Neighbour Shiv Kumar Verma identified all accused in judicial TIP. One knife was recovered at the instance of accused Vijay Kumar @ Babloo. The doctor also gave his opinion on the weapon recovered from the accused. Finger prints report also point out towards the involvement of accused persons. The prosecution has proved the aforesaid recovery coupled with scientific evidence against the accused persons. The call details have also been proved by the prosecution. The accused cannot take benefit of the faulty investigation, if any. Further, there are no FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 21 of 75 major contradictions in the testimony of PWs. Public witnesses generally do not join the investigation in criminal cases. The testimony of PWs who have not fully supported the case of prosecution cannot be discarded in totality. The Ld. APP for State, in support of her arguments, relied upon the judgements reported in the cases of Kalam @ Abdul Kalam (Md.) Vs. State of Rajasthan 2008 IV AD (SC) 453; Bhagwan Dass Vs. State (NCT) of Delhi 2011 III AD (Cri) (SC) 157; Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).

14. Let us first examine the legal position in this case. Section 394 IPC speaks of two distinct classes of persons­those who actually caused hurt and those who do not but are jointly concerned in the commission of the offence of robbery. The guilty act of one is imputed to all who are joint with him provided the act is done in committing the offence of robbery. The provisions of section 397 IPC do not create any new substantive offence as such but merely serve as complementary to sections 392 and 395 IPC by regulating the punishment already provided for dacoity by fixing a minimum FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 22 of 75 term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34.

15. It is well settled in law that where the case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence which has been well settled by the Hon'ble Supreme Court. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Hanumant Govind Nargundkar and another Vs. State of Madhya Pradesh, 1953 Crl.L.J. 129 (SC), it was held that in dealing with circumstantial evidence, the rules specially FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 23 of 75 applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. In cases, where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In Bhagat Ram Vs. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

16. Similarly, in the case of S. Chenga Reddy & Ors. Vs. State of A.P. (1996 (10) SCC 193), it has been observed as under:

"21.In a case based on circumstantial evidence, the settled FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 24 of 75 law is that the circumstances from which the conclusion of guilty is drawn should be fully proved and as such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

17. In Padala Veera Reddy Vs. State of A.P. (AIR 1990 SC

79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.

(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

18. In Birdhichand Sarda Vs. State of Maharashtra (AIR FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 25 of 75 1984 SC 1622), while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The doctrine of circumstantial evidence was again discussed and summarised in Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra 2008 (1) JCC 597, it was held that it is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstance from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

19. Now, let us further examine in this case which is admittedly based on circumstantial evidence, whether the prosecution has been able to complete the chain of events in order to bring home the guilt of the accused persons. PW9 Shiv Kumar Verma in his examination in chief stated that in his neighbourhood, Sh. Ram Avtar Gupta used to reside at ground floor of I­197, Ph­I, FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 26 of 75 Ashok Vihar, Delhi alone for the last about 2­2½ years but he was known to him for the last more than 20 years. They used to meet in th the evening and on visiting terms. On 18 day of November or December 2010, at about 7:30 pm, PW9 was present at the house of Sh. Ram Avtar Gupta. During talks, Ram Avtar Gupta received a phone call and he moved towards gallery and after attending the call, he came back to PW9 and told that his maid servant was about to come and thereafter, PW9 came out of the house. On the same day, at about 8:30 pm, when PW9 came outside his residence to close the gate of his house, he saw one lady and two persons standing outside the house of Sh. Ram Avtar Gupta. The said lady went inside the house of Sh. Ram Avtar Gupta and the persons moved ahead on the same road. Thereafter, PW9 came inside his house and went to sleep. PW9 further stated that next day in the afternoon, he came to know about the murder of Sh. Ram Avtar Gupta. Next day thereafter, police came to his locality and made interrogation and recorded his statement. On 01­12­2010, PW9 was called at Tihar Jail where he identified two accused out of which one was a lady and on 03­12­2010, he identified one more accused at Rohini Jail vide TIP proceedings Ex. PW19/A, PW19/C and PW9/X. PW9 stated that one lady and two male whom he saw in front of FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 27 of 75 Ram Avtar Gupta's house on 18­11­2010 and later on identified at Tihar Jail and Rohini jail were present in court and pointed out towards accused Anoop, Vijay Kumar and Sangeeta.

20. During cross­examination, PW9 stated that he was residing at I­189, Ashok Vihar, Ph­I, Delhi for about 30­35 years and his house was situated adjacent to the house just in front of house of Ram Avtar Gupta. The main gate of his house was situated on the extreme left side of his house if one stands facing the road in front of his house. PW9 denied that there was no street light in their street. The street light pole was less then 20 feet away from his house towards the left house i.e. towards the house of Sh. Ram Avtar Gutpa. The approximate width of the road in between his house and the house of Sh. Ram Avtar Gupta was about 13­14 feet. PW9 stated that he used specs for reading only and his present number was 1.75, which recently changed. PW9 denied that he would be able to see only back of person entering the house of Sh. Ram Avtar Gupta. PW9 volunteered that the back as well as the side would be visible. PW9 admitted that information about the arrest of accused persons was flashed on television and also printed in newspapers. PW9 had read in the newspapers and also heard about the arrest of accused persons. PW9 stated that he had seen in the newspaper FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 28 of 75 but their faces were muffled but he was not sure about the TV. No police official came to his residence on 19­11­2010 to make inquiries. Statement of PW9 was recorded by the police. PW9 did not inform the sons of Ram Avtar Gupta or any other person that he had seen two males and a lady outside the house of Sh. Ram Avtar Gupta. PW9 stated that he resided at the above address along with his parents, wife, children, brother and his family. Police informed PW9 in the morning that he had to go to jail for identification of accused persons. He volunteered that on that day, he was already on leave as he was down with viral fever. Police did not take PW9 to PS before TIP. He volunteered that he was taken to Tihar jail. PW9 specifically stated that he had not seen the accused persons before TIP. The photographs of accused persons were also not shown to PW9 before TIP. PW9 did not request to police that as he was down with viral fever, he would not go on that day. PW9 volunteered that he took medicine and went for TIP. PW9 was questioned whether it was correct that police remained in the house of Sh. Ram Avtar Gupta on 19­11­2010 to which he replied that police officials were coming and going. PW9 stated that there was no fog in the month of November. PW9 was not wearing specs when he went to close the main door. He volunteered that his far eyesight was correct and he FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 29 of 75 did not need specs and his specs number was +1.75 of both eyes. Police came to PW9 and inquired from him. PW9 denied that he gave the statement at the instance of police. PW9 further denied that he saw the faces of accused persons on TV & newspapers and identified them. PW9 also denied that photographs of accused were shown to him in the PS. PW9 stated that there were about 8­10 persons and amongst them, he identified the accused. PW9 denied that he had not seen any of the accused persons outside the house of Sh. Ram Avtar Gupta. PW9 admitted that he signed the TIP proceedings of all the three accused persons in the presence of Ld. MM and when he identified three accused persons mentioned above in TIP.

21. PW9 further stated in his cross­examination that he is a Government servant and posted as Lab Assistant in Sarvodaya Bal Vidhyalaya, Burari, Delhi. PW9 further stated that deceased Ram Avtar was residing at I­197, Ashok Vihar for the last 20 years but in between he shifted to Punjabi Bagh along with his children and thereafter, he again returned to the aforesaid place i.e. I­197, and started living there alone about 2­2½ years before the incident. PW9 further stated that he was on visiting terms with deceased Ram Avtar Gupta and usually he met with deceased in the evening time FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 30 of 75 and sometimes he used to meet him in the afternoon also. As and when PW9 met Ram Avtar Gupta at his house, they used to talk for 15­20 minutes. Ram Avtar Gupta used to take alcohol everyday but PW9 did not know whether he used to take alcohol everyday or not. PW9 stated that deceased Ram Avtar often used to go to foreign countries. The food for Ram Avtar was prepared by his maid and the maid servants sometimes used to come at the residence of deceased Ram Avtar in his presence. PW9 stated that sometimes when he was present at the house of deceased Ram Avtar Gupta, he saw the maid servant entering his house. The said maid servant used to cook the food for deceased Ram Avtar Gupta. PW9 stayed with deceased Ram Avtar for about 10­15 minutes and during his presence, deceased Ram Avtar received two phone calls, one was of Chit fund company and another he attended by going in other room. PW9 did not remember the exact time but perhaps the first call was at about 7/ 7:15 pm. After attending second call, deceased Ram Avtar told PW9 to go to his house as someone was to come there. PW9 denied the suggestion that he did not visit the house of Ram Avtar Gupta on 18­11­2010. PW9 stated that he used to meet deceased Ram Avtar Gupta either in his house or in the street outside their houses or whenever he used to come to his house to FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 31 of 75 meet his parents. PW9 did not have a talk with the sons of deceased Ram Avtar Gupta on 19­11­2010 as such there was no occasion for him to disclose anything to them. PW9 did not disclose the fact of presence of one lady and two persons outside the house of deceased Ram Avtar Gupta at 8:30 pm on 18­11­2010 to Vijender Gupta even on telephone. However, he volunteered that as the atmosphere of his family was full of grief and sad. PW9 did not disclose this fact to anybody on 19­11­2010 as he came back from his school at about 2 pm­2:30 pm. PW9 was not feeling well, as such went to doctor and thereafter he was resting in his house. PW9 told this fact to the police while recording his statement on 20­11­2010 that he came back from his school at about 2­ 2:30 PM on 19­11­2010, he was not feeling well, as such went to doctor and thereafter he was resting in his house. PW9 denied that he was knowing Rajiv, driver of deceased Ram Avtar Gupta very well or that he used to talk to him frequently. PW9 volunteered that he was knowing him only by his face that he was driver of deceased Ram Avtar Gupta. PW9 did not had any telephonic conversation with Rajiv. The police officials came to the residence of PW9 at 2 pm or 2:30 pm on 20­11­2010 and his statement was recorded by Sh. Pratap Singh, SHO PS Ashok Vihar. PW9 specifically stated that his FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 32 of 75 said statement after its recording was not read over to him by the IO rather he himself had gone through his said statement. PW9 denied that he was the last person to visit the residence of deceased Ram Avtar Gupta who remained till 8:35 pm on 18­11­2010 at his residence or that with intent to save himself from any problem or that he had concocted a story and gave a false statement of accused being seen by him on the gate of house of deceased Ram Avtar Gupta.

22. In the present case, the learned defence counsel and Ld. Amicus Curiae argued that none of the circumstances, from which an inference of guilt of accused persons can be drawn, has been proved beyond reasonable doubt and therefore there can be no inference that it were the accused persons who committed the murder of Ram Avtar Gupta. Now, let us further examine in this case which is admittedly based on circumstantial evidence, whether the prosecution has been able to complete the chain of events in order to bring home the guilt of the accused persons. PW9 is the last seen witness who categorically stated in his examination in chief that during talks, Ram Avtar Gupta received a phone call and he moved towards gallery and after attending the call, he came back to PW9 and told that his maid servant was about to come and FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 33 of 75 thereafter, PW9 came out of the house. On the same day, at about 8:30 pm, when PW9 came outside his residence to close the gate of his house, he saw one lady and two persons standing outside the house of Sh. Ram Avtar Gupta. The said lady went inside the house of Sh. Ram Avtar Gupta and the persons moved ahead on the same road. PW9 also identified the accused persons in TIP proceedings at Tihar jail and Rohini jail. PW19 Sh. V. K. Jha, Civil Judge, in his testimony, proved the TIP proceedings Ex. PW19/A qua accused Anoop; TIP proceedings Ex. PW19/C qua accused Vijay Kumar @ Babloo wherein PW9/ Shiv Kumar Verma correctly identified the accused persons. PW9 further identified the accused persons in the court at the time of his evidence. PW9 in his cross­examination categorically stated that he had not seen the accused persons before TIP. PW9 further stated that there was no fog in the month of November. PW9 also stated that his far eyesight was correct and he did not need spectacles during the time of occurrence of the incident. PW9 stated that deceased Ram Avtar often used to go to foreign countries. PW9 stated that sometimes when he was present at the house of deceased Ram Avtar Gupta, he saw the maid servant entering his house. The said maid servant used to cook the food for deceased Ram Avtar Gupta. PW9 stated that he used to FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 34 of 75 meet deceased Ram Avtar Gupta either in his house or in the street outside their houses or whenever he used to come to his house to meet his parents. The police officials came to the residence of PW9 at 2 pm or 2:30 pm on 20­11­2010 and his statement was recorded by Sh. Pratap Singh, SHO PS Ashok Vihar. PW9 specifically stated that his said statement after its recording was not read over to him by the IO rather he himself had gone through his said statement. In this context, I would also place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is well­known principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 35 of 75 down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted.

23. In the present case, the testimony of PW9 has not only inspired the confidence but he is also trustworthy. In Gulshan Vs. State through Govt. of NCT of Delhi, 2010 (1) JCC 562, it was held that identification in a court is a substantive piece of evidence. PW9 was cross­examined at length by the Ld. Counsel and Ld. Amicus Curiae for the accused persons but nothing came out in the cross­examination of PW9 which may shake his credibility. The clear and consistent stand of PW9 and identification of accused persons creates no doubt in the testimony of PW9. In State Vs. Kashi Ram AIR 2007, SC 144, it was held by the Hon'ble Supreme Court that when a person is accused of committing murder of another, the fact that the accused and the deceased were "last seen together" is a circumstance of an incriminating nature against the accused.

24. PW3 Vijender Gupta stated in his examination in chief that he along with his family and family members of his brother Surender Gupta used to reside at C­6, Bhagwan Das Nagar, East Punjabi Bagh, Delhi. On 19­11­2010 at about 12:45 pm, he received a phone call of his younger brother Surender Gupta that he had received a phone call of some police official from PS Mahendra Park FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 36 of 75 that their car bearing no. DL7CD­8474 make Swift of silver colour which was being used by their father Sh. Ram Avtar Gupta was lying abandoned. PW3 immediately tried to contact his father but phone could not be connected. PW3 along with his brother Surender Gupta reached at I­197, Ph­I, Ashok Vihar from where his brother Surender went to Mahendra Park to see the car of his father. PW3 saw that main gate of H. No. I­197 was bolted from outside and lock was hanging on the bolt in open condition along with key. PW3 dialled at 100 number and police reached there. PW3 along with police entered the house and saw that his father was lying dead on the floor of bedroom in a pool of blood having cut marks on his neck. The household articles in all the rooms were lying in a haphazard manner. All the almirahs were lying open. In the backside courtyard, some ashes of burnt papers was lying. Both mobile phones of his father bearing no. 9958541964 and 9350742499 were found missing. Statement of PW3 was recorded by the police vide Ex. PW3/A. PW3 further stated that his father was having interest in horse racing and in the habit of drinking liquor. He used to keep a maid servant for cleaning the house and for cooking food but he used to change them frequently. PW3 also found that some documents, some foreign currency and one more mobile phone of FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 37 of 75 his father bearing no. 9278032437 were also missing. One blood stained vegetable cutting knife lying on the sofa, blood stained piece of sofa cover after cutting from the sofa cover, two towels, one lying near the head of his father and one lying near the legs of his father having blood stains, leather sleepers of his father, blood sample with the help of cotton wool and blood stained floor and plain floor, after breaking the same with the help of chhaini and hammer were seized by the police vide seizure memo Ex. PW3/B. PW3 further stated that two glass tumblers lying on the glass table, liquor bottle make Peter Scot lying on the bed from which some liquor had already been consumed, four steel plates, three bowls and one glass tumbler lying on the small sofa and one carton/ cover of Peter Scot bottle were also seized by the police vide seizure memo Ex. PW3/C. PW3 further stated that one iron khunti lying in a room situated at rear side and the lock and key from the main door were also seized vide seizure memo Ex. PW3/D. The ashes of burnt papers from the back courtyard was kept in two cartons and two separate pullandas were prepared and taken into police possession vide seizure memo Ex. PW3/E. IO prepared the site plan at the instance of PW3. PW3 further stated that on 20­11­2010, he handed over a telephone diary/ pocket diary of his father to the police in which he used to record the FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 38 of 75 telephone numbers which was seized by the police vide seizure memo Ex. PW3/F. PW3 along with police reached mortuary of BJRM hospital and identified the dead body of his father Ram Avtar Gupta vide his statement Ex. PW3/G. PW3 also identified the case property Ex. P1 to P16.

25. During cross­examination, PW3 stated that his father used to keep two maids, one for cleaning the house and other for cooking food. One driver namely Rajeev was also employed by his father. PW3 stated that Rajeev was in service at the time of incident. PW3 further stated that he used to visit his father once in one or two months, but before the incident, he was visiting him regularly for the last 10­15 days. PW3 stated that his father used to keep a small diary having telephone number but it was not handed over to police on 19­11­2010. PW3 denied that nothing was done in his presence or that his signatures were obtained later on. PW3 further stated that his statement was recorded around 2:30 or 3 pm. The exhibits were lifted after the Crime Team left the spot and it was done in his presence. PW3 again said that his statement was recorded after the exhibits were lifted. Only one statement of PW3 was recorded on 19­11­2010. PW3 also stated that he did not enter the house prior to reaching the police. PW3 stated that his father FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 39 of 75 earlier visited foreign country and since then, he was keeping the dollars. PW3 denied that his statement Ex. PW3/B was not recorded on 19­11­2010. PW3 denied that nothing was seized in his presence.

26. PW27 Surender Gupta also stated in his examination in chief that his father Sh. Ram Avtar Gupta was residing at I­197, Ph­1, Ashok Vihar from 2½ years back from the date of incident. On 19­11­2010 at about 12 noon, PW27 received a telephone call from PS Mahindra Park that their car bearing no. DL7CD­8474 of silver colour was standing abandoned near Mandi. PW27 told this to his elder brother Sh. Vijender Gupta and telephoned at the mobile phone of his father who was having three mobile phones at that time. There was no response on all the three mobile phones of his father. Thereafter, PW27 along with his brother reached at I­197, Ph­1, Ashok Vihar. PW27 left his brother there and went to Adarsh Nagar Mandi to see the car where he found the car. Then he returned back to Ashok Vihar at the house of his father. PW27 came to know that his father was killed. All the articles were scattered and almirahs were broken. All three mobile phones of his father were missing. His father had gone to Sri Lanka and Nepal and he was having foreign currency with him. The foreign currency and Indian FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 40 of 75 currency were also missing from the house. PW27 further stated that his father used to take services of maid servants for preparation of food and cleaning and he used to change them within one or two months, if not satisfied with their services. The dead body was blood stained. One vegetable knife stained with blood was lying on the sofa. One towel was lying under the head of his father while another towel was lying near dead body. Blood stained leather chappal were also lying. Two glasses were lying on the table and one bottle of Peter Scotch was lying on the bed having some liquor, some steel plates and katories were lying on the sofa and one cover of bottle of Peter Scotch and a glass were lying in front of sofa. IO lifted all the articles from the spot and sealed with the seal of PSD. Blood sample were also lifted by the IO from the spot with the help of cotton. All the articles were taken into possession vide memo already Ex. PW3/B. PW27 further stated that one lock hanging on the main gate and two keys were also taken into possession. One iron kunthi was present on the back of the room. All the articles were taken into possession vide seizure memo already Ex. PW3/D. Two glasses from the table, bottle of Peter Scotch, four steel plates and three steel katories and one glass from the small sofa and cover of Peter Scotch were taken into police possession vide seizure memo FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 41 of 75 already Ex. PW3/C. Some burnt documents were lying in the open space behind the room. On 20­11­2010, PW27 went to mortuary of BJRM Hospital and identified the dead body of his father vide his statement Ex. PW27/A. PW27 also identified the case property i.e. knife Ex. P2; piece of blood stained sheet Ex. P3; the towels Ex. P4 & P5; sleeper Ex. P6; blood stained cotton Ex. P7; blood stained marble pieces Ex. P8; lock Ex. P9; keys Ex. P10; iron khunti Ex. P11; two glasses Ex. P12 & P13; liquor bottle Ex. P14; one glass tumbler, four steel plates and three steel bowls Ex. P15 and cartons Ex. P16.

27. During cross­examination, PW27 stated that he received telephone of his brother regarding the murder of his father. PW27 did not know as to what investigation was carried by the police officials present near his car. PW27 noticed that car was damaged from the front side and photographs of the car were taken by the police when they went to the PS to receive the said car on supardari. PW27 stated that when he reached to the house of his father, his brother, some neighbour and police officials were present there. PW27 further stated that his statement was recorded by the IO in the evening hours on the same day. In reply to question as to whether he remember the colour of the handle of knife which was lying at the FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 42 of 75 spot, PW27 stated that it was blood stained and he cannot tell the colour of the handle of knife. PW27 denied that he did not remember the colour of the knife because it was not recovered in his presence. PW27 used to talk with his father on telephone daily and he also used to visit his shop on regular basis. PW27 used to visit the house of his father within 7 or 10 days. The father of PW27 was having a separate maid servant for cooking and separate maid servant for cleaning the house. PW27 denied that his statement was recorded later on or that no proceedings took place in his presence.

28. PW10 Rajiv who worked as driver with Sh. Ram Avtar Gupta for the last about 1½ - 2 years prior to his death and he used to drive silver colour Swift car bearing no. DL7CD­8474 stated in his examination in chief that on 18­11­2010 at about 6­ 6:30 pm, he parked the said car outside the residence of Sh. Ram Avtar Gupta and kept the keys of the car on the table near the TV in the drawing room and went to his home. On 19­11­2010, PW10 came to know about the murder of Sh. Ram Avtar Gupta from one of his friends namely Hans Jain and he reached there but the said car was not there which he had parked in the evening nor the key of the said car was there on the table. Police recorded his statement on 19­11­2010. After about 9­10 days of the murder of Sh. Ram Avtar, FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 43 of 75 PW10 was called at Tihar jail where he identified one maid servant of Sh. Ram Avtar Gupta. In the mid January, 2011, PW10 identified the key of Swift car of Sh. Ram Avtar Gupta at Rohini Courts. PW10 pointed out towards accused Sangeeta in the court as the maid servant working at the house of Sh. Ram Avtar Gupta who used to cook food. PW10 correctly identified the key of the Swift car in the court.

29. During cross­examination, PW10 stated that his salary was around Rs. 6000­6500 per month and his working hours were from 10 or 10:30 am and the evening time was not fixed. PW10 was having a mobile phone no. 9911667049 at the relevant time. PW10 stated that when he reached the house of Sh. Ram Avtar Gupta, police inquired him and he told that he was driver and he was permitted to go inside the house and when he reached inside, he found that the key was not where he kept. PW10 stated that one neighbour of Sh. Ram Avtar Gupta whom he knew by name as Masterji, generally used to visit his house. PW10 denied that SHO had shown him the photograph of accused Sangeeta on his mobile phone. PW10 denied that he did not give any statement to the police on 19­11­2010.

30. PW7 Hans Jain stated that deceased Ram Avtar Gupta FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 44 of 75 was known to him for the last about 15­16 years and he used to talk to him telephonically. She. Ram Avtar Gupta was having three mobile numbers 9958541964; 9350742499 and 9278032437. On 18­11­2010 between 6­7 pm, he had a talk with Sh. Ram Avtar Gupta from his mobile no. 9810772778 on the mobile phone no. 9958541964 of Sh. Ram Avtar. During talks, PW7 asked him to accompany to Rajwara Place for dinner but Sh. Ram Avtar told that he had called a lady to prepare loaf (fulka) and showed his inability. On 19­11­2010, PW7 came to know about the death of Sh. Ram Avtar Gupta. During cross­examination, PW7 denied that Sh. Ram Avtar Gupta had not told him that any lady would come to prepare loaf and he was not in a position to accompany him.

31. It is further evident from the testimonies of PW3, PW27, PW10 and PW7 that PW3 Vijender Gupta son of the deceased who also visited the spot of occurrence and entered the house along with the police and found that his father was lying dead on the floor of bedroom in a pool of blood having cut marks on his neck. All the articles and items seized from the spot which have been identified by him as discussed above. PW3 also in his cross­examination stated that his father used to keep two maids, one for cleaning the house and other for cooking food. PW3 stated that his father earlier visited FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 45 of 75 foreign country and since then, he was keeping the dollars. PW27 Surender Gupta who is also son of the deceased stated that his father Sh. Ram Avtar Gupta was residing at I­197, Ph­I, Ashok Vihar from 2½ years back from the date of incident. PW27 also identified the case property discussed above. PW10 driver of the deceased also proved that he was driving the car of the deceased. PW10 identified the accused Sangeeta as maid­servant of the deceased and also identified key of the car in the Court. Further, PW19 Ld. Civil Judge stated that he conducted TIP of case property i.e. key of car vide Ex. PW19/2 wherein witness Rajiv correctly identified the same. PW19 also conducted TIP of accused Sangeeta vide Ex.PW9/X wherein she was correctly identified by witness Rajiv Kumar and Shiv Kumar. PW7 also proved that the deceased Ram Avtar told him that he had called a lady to prepare loaf (fulka) and showed his inability to accompany him to Rajwara place for dinner.

32. PW16 Dr. K. Goel, CMO, Aruna Asaf Ali Govt. Hospital stated that on 20­11­2010, he was posted at BJRM hospital as CMO and he conducted postmortem on the dead body of Sh. Ram Avtar Gupta and proved his PM report Ex. PW16/A and he opined that all injuries were ante­mortem in nature caused by sharp­edged cutting weapon and cause of death was hemorrhagic shock consequent FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 46 of 75 upon injury to neck vessels. Injury no. 1 & 2 were sufficient to cause death in ordinary course of nature individually or collectively. PW16 further stated that on 18­01­2011, SHO, PS Ashok Vihar produced two packets containing two kitchen knives having orange and green handles and he prepared the sketches of same vide Ex. PW16/B. PW16 further opined that injuries mentioned in PM report Ex.PW16/A were possible by either of these knives or similar such type of other weapons and he proved his opinion vide Ex. PW16/C. PW16 also identified both the knives in the court. In cross­ examination, PW16 denied that he prepared this report at the instance of police and as directed by the police. PW28 Santosh Tripathi, Sr. Scientific Officer, Chemistry, FSL Rohini stated that on 08­06­2011, he received a sealed parcel which was found containing one sealed glass bottle having blood sample of 10 ml. Approximately. PW28 analysed the same and found ethyl alcohol of 12.2 mg/ 100 ml. of blood and prepared his report vide Ex. PW28/A. As per the FSL report Ex.PW32/G, the blood was detected on Exhibit B i.e. one knife with plastic handle and metallic blade having brownish stains; Exhibit 2 piece of rexine sheets having darker stains; 3 one towel having brown stains; 4 one towel having brown stains; 5 one chappal having darker stains; 6 cotton wool swab FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 47 of 75 having brown stains; 7 pieces of marble stones having brownish stains; 8 brown gauze cloth piece described as 'blood in gauze piece'; 9a one shirt having brown stains; 9b one baniyan having brown stains; 9c one payjama having brown stains; 9d one underwear having brown stains; 10 dark brown foul smelling liquid described as 'blood' and A one knife with metallic blade having brownish stains and as per the serological report Ex.32/H, human blood was found on all the aforesaid exhibits except Ex.10.

33. PW5 SI Ritesh proved that on 19­11­2010, he was posted at PS Mahindra Park and DD no. 25B was recorded regarding one silver grey colour Swift car bearing no. DL7CD­8474 lying abandoned at Machhli Market wala road, Sarai Pipal Thala. He attended the said call and recorded DD no. 57B. He proved DD no. 57B as Ex.PW5/A and DD no. 25B as Ex. PW5/B. During cross­ examination, PW5 stated that Crime Team inspected the said car in his presence. PW4 HC Pradeep Kumar proved the copy of DD no. 32B as Ex. PW4/A. PW1 Ct. Dalbir stated that on 19­11­2010, he along with member of Crime Team reached at I­197, Ph­I, Ashok Vihar where he took 23 photographs of the spot. PW1 proved the negatives as Ex. PW1/A1 to PW1/A23 and photographs as Ex. PW1/A24 to PW1/A46. PW2 SI Mahesh Chand further proved that FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 48 of 75 on 19­11­2010, he along with Ct. Dalbir­photographer, Ct. Ram Kishan­Finger Print Proficient reached at I­197, Ashok Vihar, Ph­I, Delhi where he inspected the scene of crime. One dead body of Ram Avtar Gupta was lying on the floor in a pool of blood and sharp injury marks were present on his neck. Two chance prints from the liquor bottle and one each from the two glass tumblers were lifted from the spot. PW2 prepared his report vide Ex. PW2/A. During cross­examination, PW2 stated that Swift car bearing no. DL7CD­8474 was examined in his presence. Before reaching the area of PS Mahindra Park for inspection, he had already inspected the scene of crime and given his report. PW8 SI Surjit Singh, proved the computerised copy of FIR as Ex. PW8/A; his endorsement on the rukka as Ex.PW8/B, photocopies of DD nos. 17­ A, 18­A and 19­A all dated 19.11.2010 as Ex.PW8/C to Ex.PW8/E, photocopy of DD No. 23A as Ex.PW8/F and photocopy of DD no. 27A as Ex.PW8/G. PW14 SI Manohar Lal along with IO Inspector Partap Singh visited the spot where he took measurements of the place of occurrence at the instance of IO and took rough notes and prepared the scaled site plan Ex. PW14/A. During cross­ examination, PW14 denied that he did not visit the spot or the site plan was prepared by him while sitting in the PS at the instance of FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 49 of 75 IO. PW14 further denied that he had not shown the street light in the site plan as there was no street light. PW15 Ct. Anil Kumar proved that on 19­11­2010, he took copy of DD no. 16A from DO of PS Ashok Vihar and reached Central Market, Police Booth and handed over the same SI Rohit. Thereafter, he along with SI Rohit reached the spot. At about 3:50 pm, SI Rohit prepared a rukka and got the FIR registered through PW15 and thereafter, PW15 returned to the spot with the copy of FIR and original rukka. In cross­examination, PW15 stated that SI Pawan Dahiya and other staff immediately reached the spot after their reaching the spot. PW15 returned to the spot along with copy of FIR and rukka at about 4:20 pm. PW18 Ct. Ram Kishan posted as Finger Prints Proficient in Mobile Crime Team, NW proved that he reached the spot of occurrence where he lifted four chance prints from the liquor bottle and two glasses and prepared his report vide Ex. PW18/B. On that day, he along with staff also went to Sarai Pipal Thala, near village Bhadola where Swift car of silver colour bearing registration no. DL7CD­8474 was found parked and he found two chance prints on the rear view mirror inside the car and he lifted those finger prints with the help of black powder. PW18 proved his report in this regard vide Ex. PW18/A. During cross­examination, PW18 stated that he reached the spot along with FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 50 of 75 team in the vehicle of the Mobile Crime Team. PW18 prepared the finger prints after spraying carbon powder on the surface and then lifted the prints with the help of tape. PW18 stated that he checked all possible places from where he could get the chance prints. PW18 remained along with SI Mahesh Chander and the team upto 5 pm on the scene of crime. PW18 further stated that he also examined one Swift car no. DL7CD­8474 along with the team on that day in the evening. PW18 stated that he lifted the finger prints from the car with the help of tape, after sprinkling black powder. PW18 denied that finger prints were tampered before he lifted the same. PW18 further denied that no finger prints were found inside the car. PW18 denied that finger prints were made later on. PW29 SI Gyanender Singh stated that on 19­11­2010, he was posted as Finger Print Expert at Finger Prints Bureau, Kamla Market. On that day, he received copy of scene of crime, examination report along with lift of chance prints, marked Q1 to Q4. He also received photographs of chance prints marked Q1 to Q4 and Q1 and Q2 along with their negatives. PW29 examined the chance prints, developed from H. No. 1/197, Ph­1, Ashok Vihar, Delhi. PW29 prepared his detailed report Ex. PW29/A and description report of identical point vide Ex. PW29/B. PW29 stated that enlarged FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 51 of 75 photograph of identical chance prints marked Q1 and enlarged photograph of specimen left thumb impression of Anoop Kumar marked as S4 were affixed on Ex. PW29/C and photograph of chance print marked Q1 was at point X and photograph of specimen marked S4 was at point Y on Ex. PW29/C. He also proved the specimen finger impressions slip as Ex. PW29/D. In cross­ examination, PW29 denied that he did not compare any chance print or specimen prints properly or that he gave his report in mechanical manner at the instance of IO.

34. Let us also examine the arrest of the accused persons and recoveries from them. PW26 SI Haroon stated in his examination in chief that on 19­11­2010, at about 2:10 pm, on receipt of DD no. 18A to Inspector Pratap Singh, he along with him, SI Pawan Dahiya, ASI Virender went to I­197, Ph­1, Ashok Vihar, Delhi where Vijender Gupta, SI Rohit and Ct. Anil met them. On the ground floor, lock was hanging on the door with key in it and latch was closed. In the drawing room cum bedroom, dead body of Ram Avtar Gupta was lying whose hands were tied with lungi. The goods inside the house were lying scattered. Blood was there on the sofa and one blood stained knife was lying on the sofa. One blood stained towel bear the feet of the dead body and one blood stained FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 52 of 75 towel under the head of the dead body were lying. One blood stained sleeper was lying there. On the neck of dead body, there were injury marks. There were two glasses and namkeen packets on the glass table and one liquor bottle of Peter Scot having some quantity of liquor on the bed. On small sofa, four steel plates, three bowls, one glass and under the sofa, one empty cardboard of liquor bottle Peter Scot were lying. In the backside courtyard, some burnt papers were lying. One iron khunti was lying on the bed in inner room. Crime Team was called and statement of Vijender Gupta was recorded. Blood stained kitchen knife was lifted from the sofa and given Sl. no. 1; IO took out one piece of blood stained sofa cover and given Sl. no. 2; blood stained towel lying near the feet was given Sl. no. 3; the blood stained towel lying under the head of dead body was given Sl. no. 4; blood stained sleeper of leather was given sl. no. 5; blood of deceased on a piece of cotton was given Sl. no. 6 and blood stained earth was given Sl. no. 7. All the pullandas were sealed with the seal of PSD and seized vide seizure memo Ex. PW3/B. The two glasses lying on the glass table, Peter Scot liquor bottle lying on the bed, four steel plates and three steel bowls and one glass were seized. The burnt papers were seized. The lock, key and iron khunti were seized. IO prepared the site plan at the FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 53 of 75 instance of Vijender Gupta.

35. PW26 further stated that on 20­11­2010, the complainant came at PS along with his brother and produced one small telephone diary which was seized by the IO. After postmortem, the dead body was handed over to its claimants. On 24­11­2010, PW26 along with IO, SI Pawan Dahiya, ASI Asha and Ct. Babu Lal reached near Chaupal, Wazirpur village where secret information was received to IO and IO requested 4/5 passersby to join the raiding party but none came forward and left the spot without giving their names and addresses. The police party reached at WP­187, Wazirpur village where rooms were constructed on the ground floor and all the rooms were lying closed except one room. On checking that room, one woman and one man were found and their names were revealed as Sangeeta and Anoop. On seeing the police, the accused became surprised. Both accused confessed their guilt and also revealed revealed the name of Vijay Pal @ Babloo. Both accused got recovered part of looted money and other goods. In the meanwhile, one more person came there and he was apprehended by Ct. Babu Lal and his name was disclosed as Vijay Kumar @ Babloo. He was having one bag on his shoulder and it was found containing Rs. 1820/­, one mobile phone make Nokia and five FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 54 of 75 foreign currency notes. All three accused were then put in muffled face. Accused Sangeeta and Anoop disclosed name of one jeweller Shubham Jeweller at Wazirpur and Vishal Electronics from where they had purchased the mangalsutra DVD and TV. All the three accused persons led the police party to behind Community Centre, Wazirpur village from where near the wall of Community Centre, accused Vijay pointed out towards a kitchen knife having blood stains on its blade and bend at that time which was used by him at the time of crime. Accused Anoop led the police party near Peepal Tree, near the wall of Community Centre and pointed out one key of which plastic portion was broken. All accused pointed out the place of occurrence and the place where they left the car.

36. During cross­examination, PW26 stated that blood stained knife lying in the room on the sofa having light green colour hole. All the memos were prepared at the spot. PW26 denied that all the memos were prepared at the instance of IO in the PS. PW26 denied that no investigation was conducted by the IO at the spot. PW26 stated that Vijender Gupta handed over the diary of the deceased having the mobile numbers to the IO in his presence. PW26 further stated that Shiv Kumar Verma made his statement to the IO in his presence and it was recorded u/s 161 Cr.P.C. PW26 FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 55 of 75 stated that he signed Ex. PW3/D after going through its contents. IO lifted the glass tumblers with his hands by picking them from bottom and top. PW26 stated that two glasses were on the table and one was on the sofa set. PW26 stated that IO lifted the knife from his hands and he was wearing the gloves. PW26 volunteered that they had used the gloves at the time of picking the exhibits and it was routine practice. PW26 denied that no gloves were used at the time of picking the exhibits from the spot or that that is why the mention of gloves was not there in his statement. IO requested some of the public persons to join the investigation but nobody joined and left the place without disclosing their whereabouts. PW26 stated that he had knowledge that during the investigation of this case, a police team had also visited Barelly. PW26 stated that the carbon box of recovered DVD player was lying in the room. Accused persons got recovered the clothes i.e. jeans, shirts, slawar and kurta. PW26 stated that in the bag recovered from the possession of accused Vijay @ Babloo, there were pants, shirt, five foreign currency notes, one mobile phone make Nokia of silver and black colour and Rs. 1820/­ cash which were recovered which he already had explained in his examination in chief. PW26 stated that statement of Shambhaji Jewellers and Niyamal Ali Khan of Vishal Electronics FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 56 of 75 were recorded in his presence. PW26 denied that foreign currency notes were planted by the police upon the accused. PW26 denied that Vijender Gupta was not present at the spot or that he was called in the PS and planted as a witness later on. PW26 stated that seizure memo of knife and other articles bear the signature of Vijender Gupta. PW26 stated that in his presence, IO recorded the statement of officials of Crime Team, complainant Vijender Gupta and his brother Surender Gupta at the spot. The said statements were recorded inside the house itself. PW26 denied that no statement of Shiv Kumar was recorded in his presence. PW26 stated that disclosure statements of accused Sangeeta Ex. PW22/C and Anoop Kumar Ex. PW22/C were recorded immediately after their arrest on 24­11­2010. PW26 denied that neither IO requested any public person to join the investigation nor he recorded the disclosure statements of accused persons. PW26 further denied that recovered Mangalsutra was worn by the accused Sangeeta as she was newly married and she herself handed over the Mangalsutra after taking out from her neck on his asking. PW26 further denied that accused Sangeeta informed them that the recovered Mangalsutra, TV and DVD player were given by her mother after purchasing the same from market as she had not given FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 57 of 75 any article at the time of her marriage. PW26 denied that accused Sangeeta did not produce the clothes which were worn by them at the time of incident as well as Rs. 510/­. PW26 also denied that all the recoveries upon the accused Anoop was planted by them.

37. PW31 SI Pawan Dahiya also deposed on the same lines as deposed as PW26 and he also deposed that accused Anoop got recovered two mobile phones make Reliance LG and Tata Indicome. PW31 stated that accused Vijay Kumar @ Bablu was having one office bag containing one mobile phone make Nokia, a sum of Rs. 1820/­, five foreign currency notes and one pants and shirt which were seized. Accused Sangeeta led the police to shop of jeweller at WP­304, Wazirpur village from where she had purchased the mangalsutra. Then, accused persons led the police team to electronic shop at WP­302 from where they had purchased TV and DVD player. During cross­examination, PW31 stated that accused Vijay was apprehended at about 5:30 pm and till the time of arrest of accused Vijay no public person was present there. PW31 stated that seizure memo vide which mobile phone make Nokia was seized from accused Vijay was prepared in the handwriting of SI Harun Ahmad. PW31 stated that recovery of knife took place around 7:30­ 8 pm and it was recovered in the light of street light. PW31 denied FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 58 of 75 the suggestion that he was never part of investigation team. PW31 stated that when he entered the said room, he saw a TV and DVD player lying there. PW31 denied the suggestion that recovered TV, DVD player and Mangalsutra were falsely implicated upon the accused persons as it was given to them by the mother of accused Sangeeta.

38. PW32 ACP Pratap Singh also deposed on the same lines as deposed by PW26 and PW31. PW32 proved the DD no. 18A as Ex. PW32/A. PW32 got prepared the rukka Ex. PW32/B and he prepared the rough site plan of the spot vide Ex. PW32/C. PW32 also stated that one of the numbers used by deceased Ram Avtar Gupta was 9958541964 and on analysing the CDR, one number 32057941 was unknown and it was found to be a PCO number maintaining by Mohd. Ashad at Wazirpur village. On 18­11­2010, deceased had received a call from the same PCO and immediately thereafter, one call was made to no. 9211110551 which was found to be used by Smt. Usha, mother of accused Sangeeta. Smt. Usha told the police that on 18­11­2010, she received a phone call from the aforesaid PCO and it was made by her daughter Sangeeta.

39. During cross­examination, PW32 stated that he made DD entry in Rojnamcha register regarding his departure on FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 59 of 75 19­11­2010. PW32 reached at the spot along with his staff at about 2:30 pm on 19­11­2010. On the spot, PW32 met complainant Vijender Gupta who is son of deceased Ram Avtar Gupta. PW32 stated that SI Rohit and Ct. Anil were already present there in respect of one another call. Prior to reaching to the Crime Team, PW32 inspected the spot, recorded the statement of complainant and rukka was sent for registration of FIR. PW32 denied that he did not get recorded the statement of complainant. PW32 also denied that he had not made inquiries from the house of Shiv Kumar Verma which was situated in front of house of deceased. PW32 volunteered that during the inquiry, Shiv Kumar Verma was not found present there. PW32 stated that he inspected an iron almirah at the spot. PW32 came to the conclusion that there was a robbery cum murder after recording statement of complainant as well as inspection of scene of crime. PW32 stated that as far as he remember three or four chance prints were lifted by Crime Team. PW32 stated that seal belonged to him which was handed over to SI Haroon Ahmad after use. PW32 ascertained the fact that pocket diary which was handed over to him by the complainant whether it belonged to deceased or not from Hans Jain who was friend of the deceased and he told him about this fact that deceased maintained FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 60 of 75 small pocket diary containing the telephone number. PW32 made inquiries regarding some of the telephone numbers which were written in the small diary of the deceased. PW32 stated that so far I remember, one of the number was of mother of accused Sangeeta and other number he did not remember. PW32 denied that this diary was planted by Vijender Gupta, son of deceased Ram Avtar Gupta. PW32 further stated that on his investigation from Usha, he came to know that she along with her daughter accused Sangeeta used to work as maid servant in the house of deceased. PW32 stated that during the investigation of this case on 24­11­2010, he reached at Wazirpur village and he made their departure entry in the PS at 1:15 pm. After receiving the information, PW32 requested 4­5 passersby near the chaupal to join the investigation but none agreed and left the spot. PW32 denied that recovered TV, DVD player and Mangalsutra were given to the accused Sangeeta by her mother after her marriage. PW32 further denied that accused Sangeeta did not hand over the clothes of her and of accused Anoop which they had worn at the time of incident or that it were washed by them after the incident. PW32 denied that accused Anoop Kumar had not got recovered mobile phones and foreign currency notes robbed from the house of deceased. PW32 further denied that Rs. 510/­ were FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 61 of 75 not got recovered by accused Sangeeta. PW32 denied that accused Sangeeta and accused Anoop had not led them to the shop of Shubham Jewellers at WP­304, Wazirpur village. PW32 denied that shop owner Shambhaji Rao Patil did not meet them or that he did not confirm that the said Mangalsutra was purchased from his shop on 21­11­2010. PW32 further denied that accused Sangeeta did not lead them to the electronic shop of Mulla or that from that shop TV, DVD Player were not purchased by her. PW32 further denied that all the pullandas were prepared in the PS. PW32 also denied that accused Anoop Kumar and Sangeeta were detained in the PS or that they were shown to the witness Shiv Kumar Verma in the PS. PW32 further denied the suggestion that Shiv Kumar Verma had not informed him that he had seen all the three accused persons entering the house of deceased. PW32 also stated that ownership of the mobile make Nokia was determined on the basis of IMEI number. PW32 stated that SI Haroon Ahmad recorded the disclosure statement of accused Vijay on his instruction as told by accused Vijay. PW32 denied the suggestion that disclosure statement of accused Vijay was not recorded at the spot or at the behest of accused Vijay. PW32 stated that knife was recovered at about 5:30­ 6 pm at the instance of accused Vijay. PW32 stated that FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 62 of 75 there was a chicken market near the place from where the said knife was recovered at the instance of accused Vijay. PW32 denied that Shiv Kumar Verma was also present in the crowd at that time. PW32 denied that accused Vijay was falsely implicated in this case or that nothing was recovered at the instance or from the possession of accused Vijay. PW32 further denied that there was no such street light at the spot or that due to this reason he had not mentioned this in the site plan.

40. PW21 Ct. Babu Lal, stated in his examination in chief that on 19­11­2010, he handed over DD no. 19A Ex. PW21/A to the SHO, PS Ashok Vihar at H. No. 197, Ashok Vihar, Ph­I, Delhi. On 20­11­2010, PW21 received four sealed parcels with sample seal from the doctor at BJRM hospital after postmortem and he handed over the same to IO vide seizure memo Ex. PW21/B. On 24­11­2010, PW21 again joined the investigation with SHO Pratap Singh, SI Harun Ahmad, SI Pawan Dahiya and W/ASI Asha and he deposed on the same lines as deposed by PW22, PW26, PW31 and PW32. During cross­examination, PW21 denied that no secret informer met the SHO as deposed by him. PW21 stated that Anoop and Sangeeta identified Vijay and told police that he was also one of the accused. PW21 denied that he did not tell the name and style of FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 63 of 75 the goldsmith and electronic goods shop as he did not visit the said shops during investigation. PW21 stated that they all five police officials along with three accused persons and the driver went in the same Gypsy to various places. PW21 stated that knife was also recovered in his presence and he had seen the same at the time of recovery. PW21 denied that no document was prepared in his presence and that is why he did not know as to who signed those documents as witness. PW21 further stated that accused persons were standing there outside the house and from there, they pointed out that they committed the offence inside this house. PW21 further denied that accused persons did not point out the place of occurrence in his presence. PW21 also denied that he did not sign any recovery memos and arrest memos as no such proceeding was conducted in his presence. PW21 denied that Sangeeta was not arrested in the manner as deposed by him or that she was falsely implicated in this case.

41. PW22 W/ASI Asha stated in her examination in chief that on 24­10­2011, she along with SHO, SI Harun, SI Pawan, Ct. Samunder and Ct. Babu Lal joined the investigation and on the basis of secret information received to SHO, they reached at WP­187, Wazirpur village where many rooms were there but except one at FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 64 of 75 ground floor, all were locked from outside. On pushing the door, one boy and one girl were found present and became perplexed. IO made inquiries from them. The lady disclosed her name as Sangeeta where the boy disclosed his name as Anoop. On inquiry, they confessed their guilt and disclosed the name of their third associate as Vijay Kumar. Accused Sangeeta was arrested and personally searched and she made disclosure statement and she got recovered Rs. 510/­ and clothes which were worn by her at the time of incident and told that clothes were washed off. Accused Anoop got recovered Rs. 22,000/­, two mobile phones and 40 notes of foreign currency. Accused Vijay also reached there and he was apprehended and arrested and he got recovered one mobile phone make Nokia, five foreign currency notes and Rs. 1820/­. Accused Sangeeta also got recovered one TV, one DVD player and one Mangalsutra which were seized. Accused Sangeeta led the police to the shop of a goldsmith who identified the mangalsutra. Thereafter, accused Sangeeta led them to a electronic shop and its owner identified the TV and DVD player and told that the same were purchased by Sangeeta and Anoop. Accused Anoop led the police party to Murga market from where accused Vijay got recovered the knife and accused Anoop got recovered the key. Accused pointed FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 65 of 75 out the house of deceased Ram Avtar Gupta and village Bharola where they left the vehicle. PW22 identified salwar and kurta of accused Sangeeta Ex. PW22/1 and PW22/2 which were produced by her and the jeans pants and shirt Ex. PW22/3 and PW22/4 produced by accused Anoop which they were wearing at the time of incident.

42. PW22 during cross­examination stated that the room from where the two accused persons were found was first room in that building on the right hand side. PW22 stated that all the writing work was done by SI Haroon and he went to call the neighbours to join the investigation while the proceedings were being recorded but none came. PW22 stated that TV and DVD player were already lying in that room. PW22 stated that they reached Shubham Jewellers on foot. There was some mark on the backside of Mangalsutra but he did not remember if that mark was specific to that shop. PW22 further stated that they remained on the jewellers shop for about 30 minutes. PW22 stated that writing work was done at Shubham Jewellers by the SHO as well as by SI Haroon. PW22 signed the memos on the spot where those were prepared. PW22 denied the suggestion that he signed all the memos in the PS. PW22 denied that he did not visit H. No. WP­187, Wazirpur village FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 66 of 75 and also Shubham Jewellers and electronic shop. PW22 denied that no disclosure was made by the accused persons. PW22 further denied that all the proceedings were conducted while sitting in the PS or that accused Anoop and Sangeeta were lifted from their house on 22­11­2010. PW22 further denied that accused Vijay was lifted from his house on 23­11­2010 from Bareilly. PW22 also denied that no pointing out memo was prepared at the instance of accused persons. PW22 stated that disclosure statement of accused Vijay was recorded in his presence. Rs. 22,000/­ were not recovered. PW22 volunteered that Rs. 22,000/­ were looted by them. The two mobile phones were of Tata and Reliance. PW22 stated that accused Vijay got recovered the mobile phone make Nokia. First, pointing out memo was prepared with respect to Sangeeta. First of all, Sangeeta pointed out the place of occurrence then PW22 and Sangeeta sat in the Gypsy and thereafter Vijay went to the place of incident and then Anoop.

43. PW23 HC Banar Singh stated in his examination in chief that on 18­01­2011, on the directions of SHO, he sent two parcels sealed with the seal of PSD to BJRM hospital through HC Yogesh vide RC no. 88/21 Ex. PW23/A. On the same day, HC Yogesh deposited two pullandas sealed with the seal of KG BJRM Hospital FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 67 of 75 and he made endorsement regarding sending and receiving in register no. 19 vide Sl. no. 3476 and he proved the same Ex. PW23/B and PW23/C. During cross­examination, PW23 denied that suggestion that pullandas were tempered while they were kept in his custody.

44. PW12 Sambhaji Patil stated that he is running a jewellery shop under the name and style Subham Jewellers at WP­304, Wazirpur village. In November 2010 on a Friday, a couple came to him and asked for a Mangalsutra for a sum of Rs. 7,000/­. PW12 asked them to come day after tomorrow and on Sunday, two males and a lady came to his shop and he handed over the Mangalsutra to them. PW12 identified the Mangalsutra Ex. P12/1 in the court which he sold to those three persons. During cross­ examination, PW12 stated that as far as he remember, they gave Rs. 5,000/­ as advance. He volunteered that all the payment was made by currency notes in the denomination of Rs. 1,000/­. PW12 stated that he did not keep any record with him of the sales made as after he had given the slip to them, there was no need to keep the record. PW12 stated that gold weight of Mangalsutra was about 3 gms. PW12 stated that this type of Mangalsutra was easily available in the market. He volunteered that he prepared this Mangalsutra. FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 68 of 75 PW12 stated that stamp of carat was on the Mangalsutra.

45. PW13 Niyamat Ali stated that he is running a shop under the name and style Vishal Electronics at WP­302, Wazirpur village. He produced the bill book according to which on 21­11­2010, he sold a TV and a DVD vide bill no. 526 Ex. PW13/A to two/ three persons. PW13 identified the TV as Ex. P13/1 and DVD as Ex. P13/2 in the court. PW11 Ct. Samunder Parkash stated that on 16­12­2010, he along with SHO went to PS Mahindra Park and took custody of car no. DL7CDF­8474, silver colour make Maruti Swift and returned to PS Ashok Vihar vide RC no. 69/21/10. On 21­01­2011, PW11 collected 11 sealed pullandas and two sample seals from MHCM, PS Ashok vihar vide RC no. 90/21/11, 91/21/11, and 92/21/11 and deposited the same at FSL Rohini.

46. It is further evidence from the testimonies of PW26, PW31, PW32, PW21, PW22, PW23, PW12 and PW13 that the accused were arrested and thereafter looted money, items/articles and knives were recovered which have been proved by the aforesaid PWs against the accused persons for their involvement in robbery and murder.

47. Further, PW6 Sanjeev Lakra, Alternate Nodal Officer, Reliance Communication Ltd., in his testimony proved the CAF in FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 69 of 75 the name of Ram Avtar Gupta along with the ID and photocopy of DL as Ex. PW6/A, the call details of mobile No. 9350742499 from 01.11.2010 to 20.11.2010 as Ex.PW6/B and certificate u/s 65B of Indian Evidence Act as Ex. PW6/C. PW17 Manish Kumar Singh, Asstt. Nodal Officer, Tata Tele Services Ltd. also in his testimony proved the certified copy of CDR of mobile No. 9278032437 in the name of Prabhu Mukhia for the period from 01.11.2010 to 20.11.2010 as Ex. PW17/A, photocopy of application form as Ex.PW17/B, photocopy of voter I­Card of Prabju Mukhia as Ex.PW17/C, certified copy of location chart of the aforesaid mobile as Ex.PW17/D and certificate u/s 65B of Indian Evidence Act as Ex.PW17/E. PW25 Tarun Khurana, Nodal Officer, Bharti Airtel Ltd., in his testimony proved the ownership record of mobile number 9958541964 in the name of Ram Avtar Gupta as Ex. PW25/A, CAF of Mr. Ram Avtar as Ex.PW25/B, attested copy of identity of the customer as Ex.PW25/C, the call detail record from 01.11.2010 to 20.11.2010 as Ex.PW25/D, location chart running into three pages as Ex.PW25/E, the certificate u/s 65B of Indian Evidence act as Ex. PW25/F.

48. Let us further examine whether there are contradictions in the testimonies of PWs. I have found that there are some FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 70 of 75 contradictions in the testimonies of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this regard, a reliance can be placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. As far as independent public persons joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because independent public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for non­joining of independent public witnesses. In this context, I am supported with the judgements reported in the case of State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC

194. FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 71 of 75

49. The Ld. Amicus Curiae and Ld. Counsel for the accused argued that the police has not fairly investigated the case and the investigation is defective. Ld. APP for State argued that if there is a defective investigation, the accused persons cannot also take the benefit of it. It is relevant to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this regard, I would place reliance upon the Judgment reported in the case of State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.

50. Ld. Amicus Curiae and Ld. defence counsel for the accused persons argued that prosecution has failed to prove motive for the murder. The defence, to my view, cannot dig out any advantage from the fact that motive has not been proved. No doubt, FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 72 of 75 the court generally tries to asses the motive behind any murder but most often only the perpetrator of crime alone knows as to what circumstances prompted him/ her to certain course of action. Motive is in the mind of accused and can seldom be fathomed with any degree of accuracy. Therefore, absence of motive cannot dislodge the entire prosecution story. In this context, I would place a reliance upon the judgement reported in the case of State of UP Vs. Babu Ram 2000 (II) AD 285, it was held that:

"Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the Prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law. In this context, we would reiterate what this court has said about the value of motive evidence and the consequences of prosecution failing to prove it, in Nathuni Yadav Vs. State of Bihar, [1998 (9) SCC 238] and State of Himachal Pradesh Vs. Jeet Singh [1998 (4 SCC 370)].

Following passage can be quoted from the latter decision:

No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 73 of 75 offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the Prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the Prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered."

51. But in the present case, the prosecution has proved motive for the offence of robbery and murder committed by the accused persons as discussed above.

52. In their statements u/s 313 Cr.P.C. accused persons have merely denied all the incriminating evidence. The Prosecution has satisfactorily proved the various links and the accused persons did not offer any explanation consistent with their innocence and therefore the absence of such explanation itself is an additional link which completes the chain. In my considered view, the Prosecution has been able to prove the other circumstances which unerringly point to the guilt of accused persons and the chain of evidence is complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of accused persons and shall in all probability that the offence was committed by the accused FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 74 of 75 persons and none else. The aforesaid judgements relied upon by the Ld. defence counsel are distinguishable from the facts and circumstances of the present case. I, therefore, hold all the accused persons guilty and convict them for the offence u/s 392/302/34 IPC. Further, accused Anoop Kumar and Vijay Kumar @ Babloo are also convicted for the offence u/s 397 IPC. Copy of judgement be given to the convicts free of cost.

(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW­03:ROHINI:DELHI.

ANNOUNCED IN THE OPEN COURT on 30­09­2014 FIR No. 317/10; State Vs. Anoop Kumar Etc. Page 75 of 75