Delhi District Court
In Pullukuri Kotaya vs . Emperor Air 1947 Pc 67, That Only That on 7 August, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.27/2011
FIR No.213/2010
PS Bawana
u/s 302/34 IPC & 25 Arms Act.
State
Vs.
1. Naresh s/o Dalip Singh
R/o V & PO Kharkara
PS Dharuhera, Distt.
Rewari, Haryana.
2. Nitin @ Sonia s/o Sham Lal
R/o G1650, Jahangirpuri,
Delhi.
Date of institution :21012011
Date when arguments concluded:06082014
Date when Judgment pronounced:07082014
Appearances: Mr. Ashok Kumar, APP for the State.
Ms. Urmial Yadav, Legal Aid counsel for accused
Naresh
Mr. Ashok Chikkara, counsel for accused Nitin
JUDGMENT
1. Both accused have been forwarded by police to face trial u/s 302,506/34 IPC & 25 Arms Act.
State v.Naresh etc. 213/10. 1 of34
2. Facts are that on 01062010 at 11.20 AM, on receipt of information from Duty officer on phone, to the effect that foul smell was emanating from H. No.619, block7,Sector3, DSIDC Bawana, ASI Jai Kumar reached that flat and HC Harphool Singh came there and handed him over DD No.15 A. They found two persons namely Sanjay and Kuldeep Kumar near the flat. Front door of the room was found locked from outside and the rear door was also latched from inside. Both doors were broken open and a dead body was found lying under the bed. Sanjay and Kuldeep identified the dead body as of Satish. No apparent mark of injury was present on the body which was in decomposed state. The body was sent to mortuary BJRM hospital through Ct. Rinku. The deceased was resident of Gorakhpur, UP and hence concerned SSP was intimated through wireless but nobody claimed the body till 05062010. After postmortem on 05062010, it was handed over to his friends Kuldeep and Sanjay for last rites. As there was no apparent mark of injury and that there was no complainant and that cause of death was still awaited, DD No.15 A dated 01062010 was kept pending. The postmortem doctor opined the cause of death as asphyxia consequent to neck strangulation. ASI State v.Naresh etc. 213/10. 2 of34 Jai Kumar made endorsement beneath DD No.15 A on 28082010 resulting into registration of case FIR on the same day.
Later the police developed the case that both accused and witnesses Sriram @ Jony and Rakesh had met first time in jail where they were confined in a murder case. After release from jail, their friendship blossomed. Deceased Satish had borrowed Rs. 10,000/ from accused Nitin @ Sonia and Rs.25,000/ from accused Naresh. He did not pay them a single penny despite persistent demands. On 26052010 at 9.00 10.00 AM, deceased Satish alongwith Sriram @ Jony, Rakesh and Nitin @ Sonia visited Naresh at Filmistan to settle some dispute. From Filmistan, Sriram @Jony and Rakesh returned to their houses in Jahangirpuri but both accused and deceased went to flat No.619 of the deceased. The flat is owned by Sanjay but he had given the flat to deceased on the recommendation of Kuldeep as Kuldeep was an employer of the deceased at some point of time. Satish made frantic calls by using his and mobile phone of accused Naresh to Rakesh to complain that both accused were quarreling and threatening him. He asked Rakesh to come to his flat immediately. Rakesh and Sriram @ Jony reached the flat and door was opened by accused State v.Naresh etc. 213/10. 3 of34 Naresh. Coaccused Nitin @ Sonia was also found standing in the room whereas Satish was lying with face downwards. On inquiry by Rakesh, accused Naresh took out pistol and threatened both witnesses to go away from there otherwise they would also meet the same fate.
3. Charge u/s 302/34 IPC was framed against both accused on 08022011. Additional charge against accused Naresh is u/s 506 IPC. Both accused claimed trial.
4. Prosecution examined 29 witnesses to substantiate the charge. Accused did not examine a single witness in defence.
5. PW9 ASI Bhagwani Devi was working as duty officer in PS Bawana on 01062010. On that day at 11.20 AM, on receipt of information from wireless operator that foul smell was emanating from flat No.619, Block7, Sector3, Bawana, she registered DD No. 15A Ex.PW9/A. Information was communicated to SI Jai Kumar on telephone and DD was sent to him through Ct. HC Harphool Singh.
PW25 SI Jai Kumar is the first IO. He deposed that he alongwith HC Harphool reached the said flat which was found locked from outside and back door was latched from inside. They broke open the front door and entered the flat and found a male State v.Naresh etc. 213/10. 4 of34 dead body lying under the bed. Two public persons namely Kuldeep Kumar and Sanjay were also found standing outside the flat. They were called inside and they identified the body as of Satish s/o Mathura Parsad who used to reside in that flat. He recorded the statement of a neighbour namely Nikhil who was employed as Security Guard in the Power plant, Bawana. The body was sent to the mortuary of BJRM hospital through Ct. Rinku. He sent the message to the family members of the deceased at Gorakhpur and hence requested the CMO of BJRM to preserve the dead body till the arrival of family members of the deceased. They did not arrive till 05062010 and ultimately the postmortem was done on that day. He conducted inquest and prepared inquest report Ex.PW25/C and dead body was handed over to Kuldeep and Sanjay for cremation. On 16062010, the doctor of BJRM hospital handed him over cloth pullandas containing the clothes and teeth of the deceased which he seized vide memo Ex.PW25/D. He made endorsement and prepared rukka on 28082010 consequent to which case FIR was registered and thereafter further investigation was assigned to inspt. SHO Raj Singh. He visited the spot on that day with second IO who prepared rough site plan Ex.PW25/E at his State v.Naresh etc. 213/10. 5 of34 instance. The lock and latch which he had broken on 01062010 while taking out the body were handed over to IO on 28082010. These articles were kept in the flat itself which was sealed on 01 062010 after taking out the body. He further deposed that the flat was searched by second IO on 28082010 and a pocket diary of 71 pages was also seized. All these articles were taken into possession vide memo Ex.PW1/A. He identified the latch and lock as Ex.P2 and shirt, pant, muffler and underwear of the deceased collectively as Ex.P3 and teeth as Ex.P4.
PW10 HC Harphool deposed that after receipt of DD No.15 A, he reached H. No.619, DSIDC, Sector3, Bawana and handed over the DD to PW25 ASI Jai Kumar. The dead body was recovered from that flat in his presence.
PW11 Ct. Rinku had also reached flat No.619 when a male dead body was recovered. Body was taken by him mortuary BJRM hospital. PW13 SI Jasmohinder Chaudhary was posted as Incharge Crime Team, Outer District, Delhi on 01062010 when he received a wireless message from Control room at 11.50 AM that services of Crime team were required at flat No.619. He alongwith photographer Ct. Ranjan and other police officials reached there, State v.Naresh etc. 213/10. 6 of34 inspected the spot and prepared Crime team report Ex.PW13/A and handed over to the first IO. PW7 Ct. Ranjan had clicked 23 photographs of the spot and dead body from various angles. The photographs are Ex.PW7/A1 to A23 and negatives are collectively Ex.PW7/A24.
6. PW19 Dr. K. Goel had conducted postmortem in BJRM hospital, Jahangirpuri on 05062010. He found a muffler encircled twice around the neck of the body without knot. The body was slightly in decomposed state. Hair were peeling off. On external examination, the doctor noticed a broad defused pinkish and discoloured area of around the neck running horizontally and below the Adam's Apple. Width of the mark was varying between 3 to 4.5 cm. The area above and blow the mark was dark green. Any other injury was conspicuously absent. He opined the cause of death as asphyxia consequent upon ligature pressure over neck. Ligature mark was antemortem in nature caused by soft material and was possible by muffler found around the neck. Time since death was about 910 days.
PW8 SI Mahesh Kumar, draftsman, prepared scaled site plan by visiting the place of recovery of dead body and after taking State v.Naresh etc. 213/10. 7 of34 rough notes and measurements on 23112010.
PW20 Israr Babu is Nodal officer of Vodafone Mobile Services. He proved the Customer Application Form accompanying VoterI card and CDRs from 25052010 to 27052010 of mobile phone no. 9953858943 as Ex.PW15/B, Ex.PW15/C and Ex.PW15/A respectively. That phone was activated in the name of Nitin s/o Om Prakash when he furnished his voter Icard.
PW20 Vishal Gaurav is the Nodal officer of Bharti Airtel. He proved the CAF, Voter Icard and CDRs from 25052010 to 27052010 of mobile phone no. 9910590448 as Ex.PW20/B, Ex.PW20/C and Ex.PW20/A respectively. The connection was released in the name of Satish s/o Mathura Parsad. At the time of taking of that connection, Satish had furnished the voter I card Ex.PW20/C of a person namely Santosh s/o Patti Singh. PW20 proved the ownership documents and CDR of mobile phone No. 9560657542 also. That phone was activated in the name of a lady namely Sunita w/o Tirloki Nath r/o 1558, Jahangipuri. CAF is Ex.PW20/E and CDRs as Ex.PW20/D and call location Charts of both phones are Ex.PW20/H. State v.Naresh etc. 213/10. 8 of34 PW23 Rajiv Sharda is alternative Nodal officer of Reliance Communication. He deposed that as per record mobile phone no. 9311898228 was released in the name of a company namely M/s Pristian Councilor r/o 21/681, Second floor, Faiz Raod, Karol Bagh, Delhi. Finance manager namely Gopal Sehgal had applied for 50 telephone connections for the employees of the company and the said mobile phone was one of them. The finance manager had furnished his own documents for identification alongwith authority letter from proprietor Mr. Sandeep Srivastava. CAF is Ex.PW23/B, photocopy of PAN card of Gopal Sehgal is Ex.PW23/C, copy of his passport is Ex.PW23/D and authority letter of Mr. Sandeep Srivastava is Ex.PW23/E. It was a post paid connection.
PW24 Amarnath Singh is the Nodal officer of Idea Celluar Ltd. He proved the documents of three mobile phones. He deposed that mobile phone no. 9911723116 was released in the name of one Satish Kumar s/o Mathura Parsad as per CAF Ex.PW24/B on the strength of his voter Icard Ex.PW24/C. CDRs of that phone from 25052010 to 27052010 are Ex.PW24/A. About mobile no. 9990201186, PW24 deposed that it was issued in the name of one Manoj Kumar s/o Shanti Devi. Its CAF is Ex.PW24/E and CDRs are State v.Naresh etc. 213/10. 9 of34 Ex.PW24/D. PW24 further deposed that mobile connection No. 9990278718 was activated in the name of Lakhan Singh s/o Ganga Ram when he furnished copy of his voter Icard Ex.PW24/I. CDRs are Ex.PW24/G.
7. PW12 HC Baljeet and Ct. Virender visited Kharkara, District Rewari which is the village of accused Naresh. They came to know that accused Naresh had shot his uncle(tau) due to a land dispute and hence was cooling his heels in Bhondsi jail in FIR No. 215/10 PS Dharuhera u/s 307 IPC and Arms Act. Then he visited PS Dharuhera and met ASI Ranvir Singh IO of that FIR and collected the documents of that case. He produced those documents before IO inspt. Raj Singh who seized the the same vide memo Ex.PW12/A. He further deposed that he alongwith SI Gaurav Khatri, Ct. Mukesh and HC Wazir Singh alongwith accused Nitin @ Sonia reached his house No.G1650, Jahangirpuri on 13092010. Accused Nitin @ Sonia got recovered a black bag from his house claiming that he had brought the said bag from the flat of Satish after committing his murder. The bag was found containing Tshirt, pant, PAN card and two photographs of the deceased. A copy of RC of car No.DL6CC0989 was also found in State v.Naresh etc. 213/10. 10 of34 the bag. Those articles were seized by the IO vide memo Ex.PW12/B. He identified the bag as Ex.P12/10, pant as Ex.P12/11, Tshirt Ex.P12/12, PAN card, photograph and copy of RC as Ex.P12/13, Ex.P12/14 and Ex.P12/15 respectively.
PW22 ASI Ranvir Singh is the IO of FIR No.215/10 PS Dharuhera in which accused Naresh was first arrested on the allegation of firing of a bullet on his tau. The witness deposed that a country made pistol and 16 live rounds were recovered from the possession of accused Naresh. Documents of arm and ammunition were prepared. The accused had also got recovered Maruti 800 car No.DL6CC0989 which was seized vide seizure memo Ex.PW21/7. He further deposed that accused made supplementary statement on 19072010 and in pursuant to that disclosure statement, he got recovered RC of the seized car after taking it out from the seized car.
PW27 HC Ram Chand of PS Dharuhera proved the register no.19 &21 regarding deposit of case property of FIR No.215/10 PS Dharuhera.
PW28 Mr. Partap Singh is the Record Incharge Transport Authority, Sarai Kale Khan. He brought the record of Maruti 800 State v.Naresh etc. 213/10. 11 of34 car No.DL6CC0989. He deposed that the said car was registered in the name of Satish s/o Mathura Parsad as he had purchased the same from M/s Raj Rubber Industries and it was transferred in his name on 23032009.
8. PW2 HC Dharampal had registered case FIR Ex.PW2/A on 28082010 at 12.20 AM on production of rukka by SHO himself. He was acting as MHC(M) on 16062010 when ASI Jai Kumar deposited two pullandas with him which were sealed with the seal of BJRM hospital and he made entry Ex.PW2/C in register no.19. Inspt. Raj Singh deposited a pullanda sealed with the seal of RS, on 28072010 and he made entry Ex.PW2/D. Personal search articles of accused Nitin @ Sonia were deposited with him on 12092010. A sealed bag was deposited by inspt. Raj Singh on 13092010.
PW29 inspt. Raj Singh is the second and last IO to whom investigation was assigned on 28082010 after registration of FIR. He deposed that he alongwith PW25 ASI Jai Kumar and HC Harphool Singh reached flat No.619 DSIDC, Bawana on 2808 2010. It is the same flat from where the dead body was recovered. He further deposed that lock of the flat was opened by ASI Jai State v.Naresh etc. 213/10. 12 of34 Kumar in the presence of a person namely Kuldeep and its owner Sanjay. He prepared rough site plan Ex.PW25/B at the instance of ASI Jai Kumar who handed him over lock and latch which were broken at the time of recovery of the dead body. He also recovered a pocket diary Ex.P1 which he annexed with the case file and latch and lock were taken into possession vide memo Ex.PW1/A. He further deposed that after analysing the CDR of the mobile phone of deceased Satish, he came to know that he had made last call to PW16 Rakesh and hence he joined Rakesh in the investigation who told that Satish was murdered by accused Naresh. On 28082010 he wrote application Ex.PW17/D and handed over the same to SI Samarpal for getting recorded statement of Rakesh u/s 164 Cr. PC. He further deposed that HC Baljeet and Ct. Virender had visited the village of accused Naresh on his instructions on 09092010 and that HC Baljeet handed him over the copies of relevant documents of FIR No.215/10 PS Dharuhera in which accused Naresh was confined in Bhondsi Jail. He seized those documents vide seizure memo Ex.PW12/A. He further deposed that he alongwith HC Baljeet and Ct. Sushil went in the area of Jahangirpuri on 12092010 in the search of accused Nitin @ Sonia where he State v.Naresh etc. 213/10. 13 of34 accidentally met an informer at whose instance accused Nitin @ Sonia was arrested vide arrest and personal search memos Ex.PW16/B and Ex.PW16/C respectively and his disclosure statement Ex.PW18/A was recorded. He was taken on police remand. While on police remand on 13092010, PW29 deposed, accused Sonia led the police party to his house and got recovered a black bag of deceased Satish and the bag was found containing PAN card, clothes and two photographs of the deceased. A copy of RC of car No.DL6CC0989 was also recovered from the pocket of the bag. The accused Naresh was produced in the MM Court and after permission, he was interrogated and arrested vide arrest memo Ex.PW29/A and his disclosure statement Ex.PW29/B was recorded. On 15092010, both accused led the police party to flat no.619 and pointed out that place saying that they had murdered Satish there. Pointing out memo Ex.PW14/A was prepared. Then both accused pointed out the Haidarpur canal, sector5 DSIDC as the place where they had thrown the mobile phones of Satish and in this way pointing out memo Ex.PW14/A was prepared.
PW6 Ct. Sushil Kumar and PW18 HC Baljeet were with PW25 on 12092010 at the time of arrest of accused Nitin.
State v.Naresh etc. 213/10. 14 of34 PW26 Gaurav Khatri is the witness to the recovery of bag of the deceased at the instance accused Nitin from his house on 13092010.
PW14 Ct. Ashok Kumar deposed that he joined investigation with PW29 and Ct. Sandeep on 15092010. They left the PS for village Kharkara, District Rewari, Haryana with accused Naresh in a private vehicle. When they reached Madhuvan chowk, Outer ring road, accused Naresh made supplementary disclosure statement that he had no place for abode in village Kharkara and that he had made a false disclosure statement that he had hidden the mobile phones in his village. He made supplementary disclosure statement that mobile phones of Satish were thrown by him in Haidarpur canal and he pointed out that place. He further deposed that IO had taken the services of divers to search the phones but all efforts went in vain. Then accused Naresh pointed out the place of murder.
9. PW21 SI Samarpal Singh was instructed by SHO Bawana inspt. Raj Singh on 27092010 to get the statement of public witness Rakesh recorded u/s 164 Cr. PC and so he moved an application Ex.PW17/D before the court and statement was State v.Naresh etc. 213/10. 15 of34 recorded. PW16 also deposed in examination in chief dated 04052012 that he had appeared before the court for making statement where he was brought by the police. Statement Ex.PW17/B was shown to him and he identified his signatures at point A. He further deposed that facts mentioned in the statement were tutored to him by the IO as it was IO who had asked to him to name Naresh and Nitin as accused. PW17 Mr. Ajay Singh Shekhawat ld. MM deposed that he had recorded statement Ex.PW17/B of PW16 u/s 164 Cr.PC on 28102010. His certificate about voluntariness of the statement is Ex.PW17/A.
10. PW1 Kuldeep is the former employer of the deceased. Both were known to each other since 1994. He is running a printing press. The deceased Satish left the job of driver on 1996 but again joined the same job with PW1 in 2004. He further deposed that flat No.619, Sector3, DSIDC Bawana was of his friend Sanjay and on his recommendation, Sanjay had given that flat to Satish free of cost for living. He further deposed that Satish was to come to him on 26052010 for getting repaired his car but he did not come. In crossexamination he deposed that he received a phone call from Satish on that day at 5.00 PM that he would State v.Naresh etc. 213/10. 16 of34 come next day i.e. on 27052010. On that day also he did not come and he tried to contact him on phone. He inquired about him from his friend Nikhil but he told that flat no.619 was locked from outside. Nikhil rang him up on 01062010 to tell that foul smell was emanating from the flat of Satish. He made a call to flat owner Sanjay and all persons reached the flat. Maruti car No.DL6CC0989 of Satish which usually was parked outside his flat was not there. Apprehending some ill omen, Sanjay intimated PCR van. Police reached there, broke open the door and recovered the dead body of Satish from there. He could tell only the last three digits of mobile phone of the deceased as 448. PW1 deposed that deceased was using 23 phones. He further deposed that the flat was again searched by the police on 28082010 and a latch and lock and a pocket diary of the deceased were recovered. In answer to a leading question by APP, he replied that Satish was using mobile phone nos. 9911723116, 9910590448 and 9990278718. He identified the pocket diary as Ex.P1 and lock and latch as Ex.P2.
PW4 Sanjay is the owner of the flat where dead body was found. He deposed that he received a phone call from PW1 State v.Naresh etc. 213/10. 17 of34 Kuldeep on 01062010 at 10.00 AM that foul smell was emanating from his flat. He reached there at 11.00 AM and by that time Kuldeep had also reached there. One more person namely Nikhil residing in the same locality was also present. The flat was found locked from outside and a foul smell was coming and so he intimated PCR which broke open the door and took out dead body of Satish. He further deposed that while leaving, the flat was sealed.
PW5 Nikhil Kumar is again a witness of recovery of dead body of Satish from flat No.619. He deposed that Satish was using 23 mobile phone numbers and one of them was 9910590448. He deposed that when he reached the said flat on 01062010, Maruti car No.0989 of the deceased was found missing.
11. PW16 Rakesh came to know accused Naresh for the first time in jail in 2008. After release from jail, both used to meet each other. Naresh had visited his house 23 times after release from jail. He claimed that deceased was known to PW3 Jony @ Sriram. Jony @ Sriram was residing in his neighbourhood and through Jony, he was also knowing Satish. Satish rang him up on 26052010 at 9.0010.00 AM and asked to accompany him to State v.Naresh etc. 213/10. 18 of34 Filmistan. Satish met him at halwai shop Ablock, Jahangirpuri and from there, accused Nitin @ Sonia, PW3 Jony @ Sriram and accused Naresh went to Filmistan, Karol Bagh in white Maruti 800 car No.DL6CC0989 of accused Naresh. He further deposed that he and Jony @ Sriram remained there only for 510 minutes and thereafter returned to their homes. Accused Naresh and Nitin also left that place in the car of Satish for Bawana with Satish. He further deposed that he received call from Naresh between 5.006.00 PM and Naresh was inviting him to come to his flat at Bawana. Satish had also talked him on the mobile phone of Naresh and asked him to come to Bawana. PW16 was declared hostile as he was supposed to be the eye witness.
PW3 Jony @ Sriram deposed that Satish became his friend when both were in Tihar jail at some point of time from where Naresh was released in 2006 and he was released in 2008. After release from jail, Naresh used to visit him in jail. After coming out of the jail in 2008, PW3 deposed, he came in contact with Satish and also became friend of Nitin. Nitin and Rakesh were residing in his locality. He deposed that on 26052010 he alongwith Satish, Nitin @ Sonia and Rakesh went to Jhandewalan in the State v.Naresh etc. 213/10. 19 of34 Maruti car and met Naresh there. Rakesh came to him at 5.30 PM on the same day to inform that he had received phone calls from Satish that accused Naresh and Nitin were quarreling and threatening him to kill. So he alongwith PW16 Rakesh reached the flat of Satish and door was opened by Naresh and at that time second accused Nitin was standing inside the room but Satish was lying on the floor. On inquiry from Naresh and Nitin by PW16 Rakesh, accused Naresh took out pistol and threatened him saying, "yaha se bhag jao, nahi to yahi hall kar denge". At that time both the accused were trying to conceal the dead body. Both witness got frightened, returned home and kept mum till 05092010 and 07092010.
12. APP argued that PW3 Jony @ Sriram is nearly an eye witness as when he and PW16 reached the flat of Satish, he found both accused there and accused Naresh threatened them on the point of pistol. He submitted that both accused had lent some money to the deceased and he was not returning that money and that is why he was killed. He further submitted that locations of three phones of the deceased, of both accused and of both witnesses is coming in the area where dead body was found. He State v.Naresh etc. 213/10. 20 of34 also relied upon the recovery of pant, shirt, PAN Card, photographs of the deceased and copy of RC of Maruti 800 car of deceased at the instance of accused Nitin. APP submitted that accused Naresh had got recovered pistol and copy of RC of the car of the deceased in the presence of police officials of PS Dharuhera. Lastly he submitted that both accused pointed out the place of murder and the place where they had thrown the mobile phones of the deceased.
13. Eye witness account Apparently there is no eye witness. At the most PW3 can be said to be the witness of last seen of both accused and deceased together when he alongwith PW16 visited the flat of the deceased Satish. Still he is crucial witness. His version is that PW16 Rakesh came to him at 5.00 PM on 26052010 and told that he had received phone calls from Satish from his and accused Naresh's mobile phones that both accused were quarreling and were threatening to kill him. He and PW16 reached the flat door of which was opened by accused Naresh and at the time accused Nitin was also standing in the room but Satish was lying on the ground. He further deposed that when PW16 inquired Naresh State v.Naresh etc. 213/10. 21 of34 about Satish, he took out pistol from his pant and pointed out towards him threatening to go away otherwise he would also meet the same fate. He is not supported by PW16 Rakesh who, he said, had the received call from Satish.
Defence counsels argued that PW3 is a planted witness and his credentials are doubtful and hence he cannot be relied upon.
14. PW3 admitted in crossexamination that initially the police was keeping him in the category of the accused but due to intervention of his employer advocate Sandeep Srivastava, he was made witness. Also it has been deposed by him that he was in Tihar jail in some murder case when he became acquainted with the accused and deceased. PW23 brought the CAF and CDR of mobile phone no. 9311898228 issued in the name of M/s Pristian Councilor. PW23 deposed that said phone was released in the name of that firm on the strength of letter issued by proprietor Sandeep Srivastava. Mr. Sandeep Srivastava had applied for 50 telephone connections and one of such phone was being used by PW3 Jony, who was driver of Sandeep Srivastava. So phone record of 9311898228 corroborates the testimony of PW3 that he was let off from the category of the accused in this case by the intervention State v.Naresh etc. 213/10. 22 of34 of his employer advocate Sandeep Srivastava. It has been admitted by PW3 himself that during those days he was using telephone No. 9311898228. His location on 26052010 at 3.10 PM was in Mukundpur, in Jahangirpuri at 5.46 PM, in Pusa road at 6.20 PM and in Jahangirpuri at 9.31 PM. Location chart of his phone shows that from 3.10 PM to 9.31 PM he did not visit Bawana. The incident had taken place on 26052010 but he made statement before the police on 07092010. Reason furnished by him is that he was scared of the threat given by accused Naresh. It has been established on the file that accused Naresh was apprehended by the police of PS Dharuhera on 17072010. After his apprehension no threat was persisting. His explanation is quite weak. So version of PW3 is not being taken into account.
15. Motive Motive set out in chargesheet is that accused Nitin @ Sonia had lent Rs.10,000/ and accused Naresh had lent Rs. 25,000/ to the deceased Satish. When Nitin demanded Rs. 10,000/, Satish did not pay heed and hence he complained to accused Naresh. Accused Naresh told Nitin that he had given Rs.
State v.Naresh etc. 213/10. 23 of34 25,000/ to Satish and his amount was also not being returned by Satish. Thereafter they planned to kill Satish. That motive is appearing only in the disclosure statements of both accused which are hit by section 25 of Indian Evidence Act. On motive issue, PW3 Sriram @ Jony deposed that he alongwith accused Nitin and Rakesh had gone to Jhandewalan on 26052010 at 9.10 AM to meet Naresh. He further deposed that Satish had told him that he had some issue with Naresh and in that regard he wanted to meet him at Jhandewalan. Testimony of PW3 proves only the fact that there was some issue between accused Naresh and Satish but the moot question is whether the issue was so big which might have actuated Naresh to murder Satish. Reply is coming from the mouth of PW3 himself who deposed in crossexamination that accused Narresh and deceased Satish talked while sitting in the car and at that time he, Nitin and Rakesh were standing outside the car. He could not hear their conversation. They were talking in normal pitch and both were cool and there was no quarrel between them. From that situation, he was of the opinion that everything was normal between them. It proves that issue between accused Naresh and deceased Satish was not so big. Had the issue been so State v.Naresh etc. 213/10. 24 of34 big, he could not have invited both accused to his flat in Bawana. So prosecution has failed to prove the motive.
16. Call detail records APP argued that locations of three mobile phones of deceased, of both accused and of both witnesses is coming in the area of Bawana on 26052010 between 5.006.00 PM.
PW24 deposed that mobile phone No. 9990278718 was released by the company in the name of one Lakhan Singh. He further deposed that mobile phone no. 9911723116 was released in the name of Satish. PW20 proved that mobile phone no. 9910590448 was activated in the name of Satish. Prosecution did not examine Lakhan Singh in whose name the mobile phone No. 9990278718 was standing. That discrepancy has been supplied by PW1 and PW5 by deposing that all three three numbers were being used by deceased Satish. Prosecution is claiming that mobile phone no. 9990201186 was being used by accused Naresh but PW24 deposed that it was released in the name of one Manoj. IO did not deem it necessary to join said Manoj in the investigation. No prosecution witness appeared to depose that the said phone was being used by accused Naresh and so it cannot be said that State v.Naresh etc. 213/10. 25 of34 that phone was used by accused Naresh on the day of commission of murder. It has already been held that PW3 Jony @ Sriram was using mobile phone no. 9311898228. Mobile phone no. 9560657542, as per PW20, was activated in the name of one Sunita. Said Sunita was not joined in the investigation and despite it APP argued that it was being used by PW16 Rakesh. CDRs and location charts of mobile phone nos. 9990201186 and 9560657542 cannot be used against accused because prosecution did not examine their owners Manoj and Sunita but those can be used against the prosecution as those documents have been filed by it. CDRs of mobile phone no. 9560657542, allegedly used by Rakesh, was roaming in the area of Badli at 4.42 PM, in Mahendra Park from 5.13 to 5.15 PM and in Jahangirpuri from 5.16 to 8.34 PM. It shows that PW16 Rakesh did not visit Bawana on 26052010 at 5.00 or 6.00 PM as his location was not in Bawana. Location of mobile phone of PW3 Jony @ Sriram was in Mukundpur at 3.10 PM, in Jahangirpuri at 5.46 PM, in Pusa road at 6.20 PM and in Jahangirpuri at 9.31 PM. This location shows that he also did not visit the flat of deceased. No call was made after 12.53 PM from mobile phone no. 9953858943 of accused Nitin @ Sonia. So he State v.Naresh etc. 213/10. 26 of34 can also not be said to be in the area of Bawana at 5.006.00 PM on 26052010. Hence prosecution has failed to prove that PW3, PW16 and both accused were present in the area of Bawana on 26052010 between 5.00 and 6.00 PM.
17. Recovery
(a) From Nitin PW26 SI Gaurav Khatri, PW12 HC Baljeet Singh and PW29 inspt. Raj Singh are witnesses to the recovery of the bag at the instance of accused Nitin on 13092010 from his house. The bag was found containing pant and Tshirt, PAN card and two black & white photographs of the deceased Satish. A copy of RC of Maruti 800 car No.DL6CC0989 of deceased Satish was also recovered from the bag.
The incident had taken place on 26052010 and recovery was effected on 13092010 i.e. after elapse of 3½ months. No public witness was joined in the recovery proceedings. The police witnesses are not aware of the details of house of accused Nitin. Recovery memo has not been signed by family members of accused though they were present. No witness appeared in the witness box to say that recovered Tshirt and pant were of deceased Satish.
State v.Naresh etc. 213/10. 27 of34 PW26 SI Gaurav Khatri could not recollect the time when he left the PS for the house of the accused. He could not recollect whether it was a government or private vehicle. He is not aware of the time of reaching to the house of accused Nitin. He is not aware of the persons present in that house. He claimed that all police officials had entered the house of accused at the time of recovery proceedings. He does not know the number of storeyes of that house. PW12 HC Baljeet was also produced as a recovery witness but he totally stood down in crossexamination. He deposed that at the time of recovery of bag, he was outside the house. The recovered articles were of no use to the accused. Any accused of reasonable prudence would not keep any incriminating article in his house after elapse of such long time. He was not going to be benefited by keeping the copy of RC of the car, photographs of the deceased and PAN card. Due to all these reasons recovery from Nitin is disbelieved.
(b) From accused Naresh Pistol, car of the deceased and RC of that car was recovered from accused Naresh by the police of PS Dharuhera on 18072010 in a case u/s 307 IPC relating to firing by accused on State v.Naresh etc. 213/10. 28 of34 his tau in a land dispute. Pistol was not used in the commission of the murder. Only allegation is that he pointed that pistol at PW16 to threaten him. That pistol has not been identified by PW3 and PW16 as the same pistol. Moreover its barrel was found splintered. The car was recovered after 53 days of elapse of the murder. This delay in recovery is compelling the court not to arrive at the conclusion that Naresh was the murderer. At the most it can be said that he might have stolen/robbed the car. But there is no charge against him u/s 411 IPC.
(c) From the spot PW25 deposed that after registration of FIR on 28082010, he alongwith PW25, PW1 and PW5 visited the place from where dead body was recovered on 01062010. He further deposed that ASI Jai Kumar took out the broken latch and lock from the sealed flat and handed over the same to him which he seized. At that time he recovered a pocket diary of the deceased in which telephone numbers of several persons are written. Perusal of the diary shows that telephone number of only one relevant person i.e. PW3 Jony @ Sriram is written in it. Recovery of those articles is also doubtful because it is natural for the police that it would State v.Naresh etc. 213/10. 29 of34 search the area thoroughly from where dead body was recovered. If these articles were lying there why PW25 did not recover them on 25062010. Moreover it is mentioned in seizure memo Ex.PW1/A that it was PW1 Kuldeep who had handed over those articles to IO after lifting the same from the flat. But PW25 deposed that it was he who handed over those articles to the IO. Another dent to that recovery is caused by the evidence of PW4 Sanjay who deposed that the front and rear doors were opened by the police on 01062010. The front door was sealed by IO but rear door was closed with bricks and takhat. It means the flat was not sealed from the rear door and it was accessible to everybody.
18. Pointing out memos Accused Naresh had made disclosure statement Ex.PW29/B on 14092010 that he had taken three mobile phones of deceased Satish and had kept them in his house in village Kharkara, District Rewari, Haryana. When he was being taken to his village on 15092010, PW14 Ct. Ashok deposed, he made supplementary disclosure statement that earlier statement made by him was false because he had no place of abode in village Kharkara and that he had thrown all three mobile phones in State v.Naresh etc. 213/10. 30 of34 Haidarpur canal and in this way supplementary disclosure statement Ex.PW29/C was written on 15092010. If we go by the evidence of PW10, it transpires that the place of throwing of mobile phones was pointed out by only accused Naresh. Thereafter Naresh took the police party to the flat no.619, DSIDC, Sector3, Bawana and pointed out that flat saying that he alongwith co accused had murdered Satish there. In the end, PW14 deposed that when both places were pointed out by accused Naresh, coaccused Nitin was also with them. He nowhere deposed that those places were pointed out by accused Nitin also. That kind of testimony is running contrary to the evidence of PW29 inspt. Raj Singh who deposed that both places were pointed out by both accused.
PW25 and other police officials had reached the flat no.619 on 01062010. Except dead body nothing was seized from that flat on that day. So police had come to know on 25062010 itself about the place of murder. Hence nothing was discovered consequent to pointing out of that place by both accused. On this issue their case is well covered by Vijay Singh v. State and ors. Crl. Appeal No.819/12 decided on 030912. In the cited case, Hon'ble High Court of Delhi did not rely upon the pointing out memo State v.Naresh etc. 213/10. 31 of34 holding that it was not admissible in evidence as it did not fall within the scope and ambit of section 27 of Indian Evidence Act 1872 because the place of occurrence was already known to the police.
In order to make confessional statement admissible u/s 27 of Indian Evidence Act it is necessary that there should be discovery of some fact. It was held by Privy council even before Independence in Pullukuri Kotaya vs. Emperor AIR 1947 PC 67, that only that part of confessional statement would be taken into account which may lead to a discovery of a fact and that discovery should be of physical object and not only of a mental fact. That judgement was relied upon by the Supreme Court State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru Crl. Appeal No.373375/2004 decided on 04082005.
It is the admitted position of both parties that no physical object was discovered from Haidarpur canal after pointing of that place by both accused. So there was no discovery of physical object and hence pointing out memo is of no use for the prosecution case.
19. Delay in FIR As per prosecution case, Satish was murdered at 5.005.30 PM on 25062010. His dead body was recovered on State v.Naresh etc. 213/10. 32 of34 01062010. Postmortem was done on 05062010 and postmortem report was made available to the police on that very day. Despite it the FIR was registered on 28082010 i.e. three months after the commission of the murder. PW29 inspt. Raj Singh tried to explain the delay by deposing that police registers FIR immediately in circumstances first one is where the complainant makes statement and secondly when cause of death is clear. He further deposed that he awaited till 28082010 for registration of FIR because there was no complainant and no cause of death. It has come on the record that postmortem was conducted on 05062014 and on the same day the PMR was prepared in which cause of death has been stated as asphyxia. So police had come to know on 05062010 itself about the cause of death. From 05062010 till 28082010, it kept mum. It is not clear what triggered the police on 28082010 when it registered FIR. Delay of three months has not been explained by the police in registration of FIR.
20. Conclusion Eye witness account has failed. Prosecution has unsuccessfully tried to establish motive, location of PW3 and PW16 was not in the area of Bawana between 5.006.00 PM on State v.Naresh etc. 213/10. 33 of34 26052010. Phone no. 9953858943 of accused Nitin @ Sonia did not receive or make any call on that day after 12.53 PM. So his presence in Bawana is not established at that time. Police failed to prove that accused Naresh was using mobile no. 9990201186. No discovery of any physical object was made consequent to pointing out memos. There is a delay of three months in registration of FIR.
21. Taking all these facts into consideration, both the accused are acquitted of the charges levelled against them. Their bail bonds, if any, stand cancelled. Surety, if any, discharged. Endorsement, if any, be cancelled. They be released forthwith, if not, wanted in any other case. File be consigned to recordroom. Announced in the Open Court On day of 7th August, 2014.
(UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi State v.Naresh etc. 213/10. 34 of34