Delhi District Court
Judgment State vs Pawan Jindal Etc on 21 November, 2015
Judgment State Vs Pawan Jindal Etc
FIR no. 422/12
PS Subhash Place
IN THE COURT OF SHRI PANKAJ GUPTA:ADDL.SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 61/13
Unique Case ID: 02404R0067502013
State
Vs.
1. Pawan Jindal S/o Chiranji Lal Jindal
R/o VPO Koyal, Tehsil Narwana, District Jind Haryana.
2. Sandeep @ Sonu S/o Dharam Singh
R/o VPO Mehrana, District Jhajjar Haryana.
3. Chand Veer S/o Dharamvir
R/o VPO Kablana, District Jhajjar Haryana.
4. Vikram @ Billu S/o Dharamvir
R/o VPO Silothi, District Jhajjar Haryana.
FIR No. : 422/12
Police Station : Subhash Place
Under Section : 302/392/397/412/120B/34 IPC
Date of committal to Sessions Court : 01.04.2013
Date on which orders were reserved : 21.11.2015
Date on which judgment pronounced : 21.11.2015
JUDGMENT
1. This case is under sections 302/392/397/412/120B/34 of Indian Penal Code, 1860 (IPC).
Page no. 1/68Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place CASE OF THE PROSECUTION
2. (i) On 31.10.2012, DD no. 40A was recorded regarding the murder at house no. WZ584, Sri Nagar, Gali no.1, Shakur Basti, Delhi (hereinafter referred to as the house no. "WZ584" or the scene of crime). Once the police officials reached at the scene of crime, they were informed that both the injured i.e. Satpal Garg and his wife Ram Kali Garg had been removed to the hospital. At hospital, Satpal Garg (the deceased no. 1) and Ram Kali Garg (the deceased no. 2) were declared brought dead.
(ii) Sanjeev Garg, elder son of the deceased (the complainant) made a statement that on 30.10.2012 at about 8:15 pm, when he reached at house no. WZ584, he noticed that the main gate was opened and the lights were off. He called his parents, but, they did not respond. On search, once he entered the room at the left hand side, he found that his father was lying in between the sofa and the table. He called his friend/neighbour Raman Jain and he along with him took his father i.e. the deceased no. 1 to Maharaja Agrasen Hospital where he was declared brought dead. Thereafter, he asked his said friend to go to the house no. WZ584 and look for his mother. After sometime, he was informed that his mother was found in unconscious condition and had been removed to the Max hospital. She was also declared brought dead. Once he came back to the house no. WZ584, he found that the almirah which was kept at the back side room at the right hand side, was locked. Once it was broken, he found missing Rs. 2.5 lacs, some jewellery one gold chain, three gold finger rings, one gold set of his Page no. 2/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place mother and one silver glass. On search of remaining portion of the said house, he also found missing one purse of his father containing some cash, driving license and some documents. Laptop bag and three mobile phones were also missing. He suspected that some unknown person had committed robbery and thereafter, murdered his parents.
(iii) During the investigation, the police recorded the statement of Rameshwar Dass, elder brother of the deceased no. 1 who stated that on 30.10.2012 at about 12.30 pm, once he was going to his office, he noticed that three boys were coming out of the house of deceased no. 1 i.e house no. WZ584. Out of them, two boys were carrying black coloured bag. He thought that they might have come to meet the deceased no. 1. At night, he came to know about the murder of both the deceased and robbery. He suspected that those three boys were behind the said incident and stated that he could identify them once brought before him.
(iv) During the investigation, the prosecution recorded statement of Pankaj Kumar who stated that one month before the date of incident, in the evening time, Chandveer (the accused no. 3) called him and asked him to come at his office along with his vehicle. He along with his friend Naveen went to his office in EECO car where Pawan Jindal (the accused no. 1), the accused no. 3 and one more person were already present. He drove the vehicle to Sri Nagar colony at the Page no. 3/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place instance of the accused no. 1. The accused no. 1 pointed towards the house no. WZ584 and the accused no. 3 noticed the entire proceeding.
(v) On 09.12.2012, Sandeep (the accused no. 2) was arrested and made a disclosure statement. In the said statement, he named the accused no. 1,3 and 4 also. The accused no. 2 stated that the accused no. 3 informed him that both the deceased had played a fraud with the accused no. 1 and did not want to give his share in the property and also wanted to get their property vacated from the brothers of accused no. 1. The deceased no. 1 had also got the office of accused no. 1 vacated and had delivered to his elder brother. If the deceased were removed from the way of the accused no. 1, then, he could retain the property and they would get the money.
(vi) On 09.12.2012, the accused no. 1 was arrested and made the disclosure statement similar to that of the accused no. 2.
(vii) On 10.12.2012, the accused no. 2 took the police official to the scene of crime and pointing out memo was prepared at his instance.
(viii) On 11.12.2012, TIP of the accused no. 2 was to be conducted by, but, he refused to participate.
(ix) On 14.12.2012, the accused no. 2 took them to his residence at Village Mehrana, District Jhajjar Haryana from where he got recovered one gold ladies necklace and one gold finger ring from a room on the Page no. 4/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place first floor of the said house. On 17.01.2013, the said jewellery articles were identified by the complainant in the TIP.
(x) On 16.12.2012, the accused no. 1 took them to a house in his village Koyal, Distt. Narwana and got recovered a yellow coloured file cover containing the original documents related to property situated in khasra no. 816, village Kirari, Suleman Nagar, Colony known as Aman Vihar, Delhi which is now known as the property no. D4, 40 futa road, Aman Vihar Delhi (hereinafter referred to as "the property no. D4") which was in the name of the deceased no. 2.
(xi) On 09.02.2013, Rameshwar Das Garg identified the accused no. 2 in the Rohini Court once he was produced for his judicial remand.
(xii) The crime team was called, photographs were taken and exhibits were lifted. However, the result of chance print was "NOT IDENTICAL."
(xiii) CDR data shown phone location of all the accused on 28.10.2012 at Aman Vihar, Delhi. As such, all the accused met on that day and hatched a conspiracy to commit the murder of both the deceased.
3. The accused no. 3 and 4 could not be arrested and were declared proclaimed offender (PO). After completing the investigations, the charge sheet was filed in the court.
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4. Later on, the accused no. 3 and 4 were arrested and supplementary charge sheet was filed against them.
5. In the supplementary charge sheet case of the prosecution is that on 08.04.2013, Special Cell arrested the accused no. 3. On 09.04.2013, the IO after obtaining the permission, interrogated him and arrested him. On 10.02.2013, the accused no. 3 refused to participate in the TIP. The accused no. 3 made the disclosure statement and in pursuance thereto, the accused no. 3 got recovered one gold chain and one pair of Pajeb from back room of his house. Further, on secret information, the accused no. 4 was arrested on 14.04.2013 and made a disclosure statement and got recovered two gold rings, silver pajeb and some silver coins.
6. All the accused were charged for the offence u/s 120B/302/394 IPC read with section 120B IPC. The accused no. 1 and 2 were also charged u/s 411 IPC. All the accused pleaded not guilty and claimed trial.
7. In order to discharge the onus, the prosecution has examined 35 witnesses.
Public Witnesses:
8. PW24 Sanjeev Garg, elder son of both the deceased(the complainant) deposed that on 30.10.2012 at about 8.15 pm, once he reached the house no. WZ584, the lights were switched off. He called Page no. 6/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place his parents but no one responded. Thereafter, he switched on the lights and found his father was lying between the sofa and the table in the room situated at the left hand side and "UNKE MUH SE JHAAG AA RAHA THA." He called his neighbour Raman Jain (PW30) and took his father to Maharaja Agrasen Hospital where he was declared brought dead. Thereafter, he sent back PW 30 to the house WZ584 to look for his mother. In the back side room on right hand side, his mother was found in unconscious condition once the lock of the said room was broken and she was taken to Max hospital and was declared as brought dead. Thereafter, he came back to the house and found a lot of blood in the said room and the almirah was found locked. He broke the lock of the almirah and found cash of Rs. 2.5 lacs, one gold chain, three rings, a gold set of his mother and one silver glass missing. He checked other rooms and found the purse of his father containing some cash, driving license and some documents and three mobile phones were missing. He suspected someone unknown persons had murdered his parents. PW30 made a call at number 100. Police recorded his statement Ex.PW24/A. On 31.10.2012, he identified dead body of his father vide memo Ex.PW24/B and dead body of his mother vide memo Ex.PW24/C. After postmortem, dead bodies of his parents were handed over vide memos Ex.PW24/D and Ex.PW24/E. IO took two cups placed on the slab of the kitchen in his possession and lifted the exhibits. On 01.11.2012, PW14 told him that he noticed three persons coming out of their house out of which two were having two heavy bags of black colour. Thereafter, he checked whole of the house and found property documents of the property and some files containing the documents of vehicle and gas Page no. 7/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place connection were missing. He deposed that in TIP proceedings of recovered articles conducted on 17.01.2013, he identified one ring and one gold colour necklace. He also relied upon the TIP proceedings dated 17.01.2013 Ex.PX4. In April, he again took part in TIP of the case property and identified two golden rings, one gold chain, two pair of silver pajeb, silver coins. TIP proceedings dated 26.04.2013 is Ex.PW24/F. He identified the property documents Ex.P1, Ex.P2, Ex.P3, 10 silver coins Ex.P4 to Ex.P13, two silver pajebs Ex. P14, one gold ring of lady Ex. P15 and one gold ring of gent Ex. P16, a pair of silver pajeb Ex. P17, one gold chain Ex. P18, one golden necklace Ex. P19, gold ring Ex.P20, pajeb Ex. P21, bichhua Ex.P22, nose pin Ex.23, gold ring Ex.P24, laptop Ex.P25, charger Ex. P26, handle lock Ex.P27, one pant, vest, underwear and blood stained having some curt marks shirt Ex. P28 and one blouse and petticoat and maxi Ex. P29. He identified the accused persons in the court.
9. In his cross examination, PW24 deposed that sometimes the deceased no. 1 used to work in MCX at the shop of one neighbour namely Trilok. PW14 was his elder uncle and they used to talk occasionally on functions, otherwise, they had no concern with each other. In the year 2012, PW14 and the deceased no. 1 did the work of property dealing partly. Before that, they had strained relationship and there was some quarrel between PW14 and the deceased no. 2 on some domestic reason which he did not disclose. He and his family had cordial relationship with his maternal uncles. The house no. WZ584 did not come on the way which led to Mundaka i.e. the place of work of PW14. The width of the street in front of their house was Page no. 8/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place about 12 feet while in front of house of PW14 was 20 feet. The road which existed in front of house of PW14 linked with the road leading to Britania to Mangol Puri. His first statement was recorded on 31.10.2012 and then on 01.11.2012 and rest he did not remember. He admitted that on the date of incident, construction work was going on in the house situated in front of the house no. WZ584 and labour was working and mixing machine was parked in the street. Once he took his father to Maharaja Agrasen Hospital, PW14 also came over there. Police officials were also there. To his knowledge, his relatives did not inform to the police about their knowledge relating to the incident and assailants. He along with his relatives came back to the scene of crime i.e. house no. WZ584 between 11 and 12 midnight. Police officials and crime team officials were already there and investigation continued till 5/6 a.m. on 31.10.2012. Before making the statement Ex.PW24/A, he had checked the missing articles from the house. He admitted that he had not given the number and description of jewellery articles nor mentioned about 10 silver coins, gas connection documents and the documents relating to the vehicles and the property no. D4. On 15.11.2012, PW14 was present in the house when the police came and they again checked the documents in the house and did not find any document missing. He did not remember whether on 15.11.2012 statement of PW14 was recorded. After the death of his parents, all the documents of the property remained in his possession except the document mentioned in his statement. He admitted that there was no specific mark on the jewellery and the same was easily available in the market. He admitted that all the documents were in the possession of his parents Page no. 9/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place in the almirah. He did not admit or deny that PW14 initially laid suspicion on Trilok and some other person. Accused no. 1 had already vacated the house D4 on the asking of his father i.e. the deceased no. 1 simply. He had asked his maternal uncle Satish to leave their house and he did so. Except the accused no. 1, he had not seen the other accused except in the court proceedings.
10. PW14 Rameshwar Dass (elder brother of deceased no. 1) deposed that they were four brothers and the deceased no. 1 was the youngest one. Deceased no. 1 was having four brother in laws including the accused no. 1 who were residing at 800 sq. yards built up house situated at 40 feet road, Aman Vihar, Sultan Puri, Delhi i.e. the property no. D4 Delhi which belonged to the deceased no. 1. Accused no. 1 was also doing the work of wood on 300 sq. yards area of the above said plot. One and a half year ago prior to 26.07.2013, the deceased no. 1 had sold 300 sq. yards of area for Rs. 1 crore to which his brother in laws objected. The accused no. 1 demanded Rs. 25 lacs and once they promised for the said payment, he vacated 300 sq. yards. However, the deceased no. 1 did not pay the said amount and then the accused no. 1 threatened him to see him in future. Accused no. 1 also used to do the work of committee from the said plot and had to pay Rs. 88 lacs to different people/parties. He also deposed that on 30.10.2012 between 12.00 noon12.30 pm, when he was going to his office, he saw three persons coming out of the house of deceased no. 1, out of which two were having blue colour bag. He Page no. 10/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place thought that they would have come for some work with deceased no. 1 and he left for his office. At 9.00 pm, he came to know about condition of the deceased no. 1 and went to Maharaja Agrasen Hospital. Next day, he identified the dead body of deceased no. 1 at the time of postmortem. In court, he identified the accused no. 2 to 4 as the person to whom he saw coming out of the house of deceased no. 1 on 30.10.2012.
11. In his cross examination, PW14 deposed that he was dealing in property in Aman Vihar as a property dealer in order to get the same property no. D4 vacated from the accused no. 1. Initially, he along with the deceased no. 1 purchased the said property jointly. Later on, the same was partitioned. Accused no. 1 and 3 used to make inquiries from him about the sale & purchase of the plot. Accused no. 3 was connected with Sahib Singh Verma and Bhartiya Janta Party as he had seen his posters in the area. Deceased no. 1 did not attend the marriage of his sons Ajay, Vijay and daughter Seema as their relations were not cordial because of brother in laws of the deceased no. 1 as his wife i.e. the deceased no. 2 used to take favour of her brothers out of the way over their family. He admitted that on 28.11.2012, Satish brother of the accused no. 1 on his asking transferred the plot situated at Village Ranikhera, Delhi in the name of PW24. Accused no. 1 had also vacated 300 sq. yards plot out of 800 sq. yards situated at D4 and did not object for the same. However, he continued to reside in remaining 500 sq. yards. After the murder, the said plot had also got vacated from the family of accused no. 1. On receipt of the information, he went to the Maharaja Agrasen Hospital and met Page no. 11/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place PW24 and Satishbrother of the accused no. 1 and remained there for 30 minutes. However, he did not disclose the facts of having seen three boys that afternoon coming out of the house of deceased no. 1. At about 10.00 pm, he reached the house of deceased no. 1 and found media and police officials like DCP, ACP, SHO, SI Umesh Rana, HC Suresh and other persons. Police remained there upto 4.00 am. Even that time, he did not disclose the fact of three boys seen by him in the afternoon. He deposed that Trilok was the neighbour of the deceased no. 1 and he knew Suraj by face. Deceased no. 1 was dealing in MCX Metals. On 30.10.2012 at Maharaja Agrasen Hospital, he in the presence of PW24 and police officials including DCP, ACP laid suspicion firstly on Trilok and Suraj with whom the deceased no. 1 was dealing in MCX Metals and police officials took note of it. On 31.10.2012 in noon hours, police came to the house of the deceased no. 1 and called him for his statement and that time he told about three boys out of which two were carrying blue coloured bag. He did not disclose the age, description and clothing of three boys in his statement. He did not know the accused no. 2 and 4 prior to the date of incident. Regarding missing documents, he deposed that after coming from the hospital on 30.10.2012, PW24 checked the house and they came to know about missing of Rs. 2.5 lacs and gold jewellery. He also deposed that on 15.11.2012, the police came to the house of deceased no. 1 and all the documents were intact in the almirah on that day in the possession of PW24. He admitted that on 30.10.2012, construction was going on in a house in front of house of deceased no. 1 and labour was working. Deceased no. 1 used to bolt the gate from inside and open the same after ringing of the door bell Page no. 12/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place only.
12. PW15 Pankaj Kumar deposed that he knew the accused no. 3 being associated with BJP and the accused no. 1 and identified them in the court. Accused no. 1 was doing the work of committee and he participated therein for Rs. 8 lacs, but, did not receive the said amount as the accused no. 1 had withheld the same. Accused no. 1 had to pay the committee amount of Rs. 8 lacs to various persons and he had cheated them. He complained to the accused no. 3 who assured to get it back. He did not have his own vehicle, but, used to take EECO Maruti van from his friend Rakesh. He knew the deceased no. 1 but did not know his residential house. He admitted that the accused no. 3 had a good reputation in Aman Vihar area. Before November, 2012, the accused no. 3 made a call to him and on that he along with Naveen reached his office in EECO van where the accused no. 1 with one more person was also present. He denied the facts of taking the vehicle to the scene of crime for the purpose of identification. He deposed that the police made inquiries from him but did not record his statement. In his cross examination, he failed to produce any receipt of any committee dealt by the accused no. 1 and any receipt of payment made by him.
13. PW29 Yogender deposed that he along with the accused no. 2 was plying school buses on contract. He obtained the SIM of Tata Docomo no. 9034758781 which he obtained on his ID card. He gave that SIM to accused no. 2 for usage two years back and never took it back.
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14. PW30 Raman Jain (friend of PW24) deposed that facts of taking the deceased no. 1 and 2 to the hospitals as deposed by PW24. He made a call at 100 number.
15. PW31 Naveen Garg (younger son of the deceased) deposed that on 31.10.2012, he identified the dead bodies of his parents vide memo Ex.PW31/A and Ex.PW31/B respectively. He and the complainant received the dead bodies vide memos Ex.PW24/D & Ex.PW24/E respectively.
16. PW33 Ajay Garg (son of PW14) deposed that he heard about the incident and of missing articles like cash, jewellery and mobile phone.
Police / Official Witnesses:
17. PW5 W/Ct. Grace proved PCR form Ex.PW5/A.
18. PW6 Ct. Luvkush proved PCR form Ex.PW6/A. 19 . PW7 Ct. Sikandar proved PCR form Ex.PW7/A.
20. PW9 Ct. Sandeep Kumar proved the copy of DD no. 114B Ex.PW9/A, DD no. 115B Ex.PW9/B and DD no. 119B Ex.PW9/C.
21. PW12 Ct. Mahender deposed that on 30.10.2012 on receipt of wireless message regarding the incident, he reached at the scene of Page no. 14/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place crime where he found IOPW35 and they came to know that injured had been removed to the hospital. Thereafter, they got the information that both were brought dead. On 31.10.2012, postmortem was conducted on the bodies of the deceased.
22. PW27 Ct. Bhagwan Sahai deposed about registration of FIR and handing over of copy of FIR to PW35. He also deposed about taking of photographs by the crime team and postmortem on the dead bodies.
23. PW13 HC Sunil Dutt proved copy of FIR no. 422/12 Ex.PW13/A and endorsement on rukka Ex.PW13/B.
24. PW3 Sajid Hussain deposed that on 30.10.2012 he lifted three chance prints from different places of scene of crime i.e. laptop, glass and door frame. In his cross examination, he denied the suggestion that he had lifted the chance prints from two tea cups which were intentionally not sent to FSL.
25. PW4 Ct. Subhash proved the photographs Ex.PW4/A1 to Ex.PW4/A20 and their negatives Ex.PW4/B.
26. PW10 SI Manohar Lal proved the scaled site plan Ex.PW10/A.
27. PW11, HC Raj Kumar proved copy of the entry in register no. 19 vide s.no. 3882/12 Ex.PW11/A, copy of entry at s.no. 3883/12 Ex.PW11/B and copy of entry at s.no. 3888/12 Ex.PW11/C. He also proved copy of the entry in register no. 19 vide s.no. 4062/13 Page no. 15/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place Ex.PW11/D, copy of entry in register no. 21 vide RC no. 09/21/13 Ex.PW11/E and copy of entry in register no.19 vide s.no. 3505/13 Ex.PW11/F, copy of s.no. 3558/13 Ex.PW11/G and copy of entry in register no. 21 vide RC no. 80/21/13 Ex.PW11/H. He also relied upon copy of entry in register no. 21 vide RC No. 206/21/12 Ex.PW1/A and copy of receipt issued by FSL Ex.PW1/B, copy of RC No. 207/21/12 Ex.PW2/A, copy of RC No. 208/21/12 Ex.PW11/I, copy of receipt issued by FSL Ex.PW11/J, copy of RC No. 211/21/12 Ex.PW8/A and copy of receipt issued by FSL Ex.PW8/B.
28. PW1 Ct. Dinesh Kumar proved the copy of relevant entry in register no. 21 vide RC No. 206/21/12 Ex.PW1/A and receipt issued by FSL Ex.PW1/B.
29. PW2 Ct. Mukesh Kumar proved the copy of relevant entry in register no. 21 vide RC No. 207/21/12 and RC No. 209/21/12 Ex.PW2/A & Ex.PW2/B respectively.
30. PW8 Ct. Surender Kumar proved the copy of relevant entry in register no. 21 vide RC No. 211/21/12 Ex.PW8/A and receipt issued by FSL Ex.PW8/B.
31. PW23 Ct. Manoj Kumar proved copy of DD No. 13A as Ex.PW23/A regarding the information received from Special Cell about arrest of accused no. 3.
32. PW26 ASI Bijender also deposed about the arrest of accused no. 3 Page no. 16/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place on the line, as deposed by PW26.
33. PW25 SI Vikram Singh deposed that on 08.04.2013 on secret information, he arrested the accused no. 3 vide arrest memo Ex.PW25/A. He proved his arrest memo Ex.PW25/B, personal search Ex.PW25/C and disclosure statement Ex.PW25/D.
34. PW28 HC Suresh Kumar deposed that on 16.12.2012, he joined the investigation with PW35 and they along with the accused no. 1 reached village Koyal Tehsil Narwana. Accused no. 1 led them to his house and got recovered one yellow colour file cover and handed over the same to the IO and informed that the said file contained the original documents of the property no. D4. IO seized those documents vide seizure memo Ex.PW28/A. PW28 also deposed that on 14.04.2013, he joined the investigation with the IO. Accused no. 3 led them to the house no. WZ584 and pointed out the place of incident. Pointing out memo is Ex.PW28/B. Thereafter, the accused no. 3 led them to the house no. 24, Kailash Vihar, Sultan Puri, Delhi from where he got recovered one silver pajeb with word 'VR'. The same was seized vide Ex.PW28/C. He identified the documents relating to property situated in Khasra No. 816, Village Kirari, Suleman Nagar Ex.P1 and P2 & the documents relating to the same khasra number in the name of deceased no. 1 & 2 Ex.P3. He identified the pajeb Ex.P17 and golden chain Ex.P18.
35. PW34 SI Umesh Rana deposed that on 09.12.2012, he joined the investigation with PW35 and on the basis of secrete information, Page no. 17/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place the accused no. 2 was interrogated and was arrested vide memo Ex. PW 34/A. His personal search memo is Ex. PW 34/B and his disclosure statement is Ex. PW 34/C. When they came back to the police station, the accused no. 1 was present in the police station. He was interrogated and was arrested vide memo EX PW 34/D. His personal search memo is Ex. PW 34/E and his disclosure statement is Ex. PW 34/F. On 10.12.2012, at the instance of the accused no. 2, PW35 prepared the pointing out memo Ex. PW 34/G.
36. PW34 also deposed that on 14.12.2012, he joined the investigations with PW35 and they along with the accused no. 1 and 2 went to the village of the accused no. 2 at village Mehrana, District Jhajjar, Haryana where the accused no. 2 had pointed out towards his house and got recovered one ladies necklace and one gold like ring which were seized vide seizure memo Ex. PW 34/H.
37. PW34 also deposed that on 09.02.2013, when he reached at central hall, Rohini courts complex PW14 met him. The accused no. 1 and 2 were also passing through the passage. On seeing them, PW14 identified the accused no. 2 as the same person whom he saw on 30.10.2012 at around 12.10 pm while coming out of the house of deceased no. 1 with a black colored back in his bag. PW 14 also identified that the accused no. 1 as brotherinlaw of the deceased no. 1.
38. PW34 also deposed that on 09.04.2013, he along with PW35 reached at Rohini courts where the accused no. 3 was produced and Page no. 18/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place was arrested vide memo EX PW 34/I. His disclosure statement is EX PW 34/J.
39. PW34 also deposed that on 14.04.2013, he again joined the investigations with PW35 and on secrete information, they arrested the accused no.4 vide memo EX PW 34/K. His personal search memo is EX PW 34/L and his disclosure statement is EX PW 34/M.
40. PW34 also deposed that on 18.04.2013, IO prepared the memo of pointing out EX PW 34/N at the instance of the accused no. 4. PW14 identified the accused no. 4 at the scene of crime as the same person whom he saw coming out of the house no. WZ 584 on the date of incident along with his coaccused a bag in his hand. PW14 also identified the accused no. 3 whom he saw on 30.10.2012 along with his coaccused but he was not having any thing in his hand.
41. PW34 also deposed that on 18.04.2013, the accused no. 4 took them to property no. B348, 40 feet road, Aman Vihar and got recovered two gold rings, one pair of pajeb and 10 silver coins which were seized vide seizure memo Ex. PW 34/O. On 26.04.2013, in TIP proceedings Ex. PX4, PW 24 has identified the same as belonging to them.
42. PW34 identified the accused in the court. He also identified 10 silver coins EX P4 to EX P13, two silver pajeb collectively Ex. P14, ladies gold ring Ex. P15, gents gold ring Ex. P16, a pair of pajeb (silver) Ex. P17, gold chain Ex. P18, necklace Ex. P19 and gold ring Page no. 19/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place Ex. P20.
43. In his cross examination, PW34 deposed that on 09.12.2012, when they apprehended the accused no. 2, they all were in uniform and the accused no. 2 and he did not tried to run away. No bus ticket was found from his personal search. When both the accused were produced at Rohini courts and were sent to JC, the accused no. 2 was in muffled face.
44. PW34 also deposed that on 14.12.2012, no site plan of the place of recovery was prepared by the IO. No specific mark was given to the recovered articles by the IO. He could not say whether the similar jewelery was easily available in the market or not.
45. PW34 also deposed that the place where the accused no. 4 was apprehended was a busy road and they all were in uniform.
46. PW34 also deposed that on 18.04.2013, they reached at B348, 40 feet road, Aman Vihar and recovery had been effected from the room which was situated on the right side of the roof of the house situated at back side. The room was locked and the lock was broken by the accused no. 4. He could not say whether the broken lock was taken into possession by the IO or not. The recovery memo was prepared. No site plan was prepared by the IO at the place of recovery. He neither admit or deny that the alleged recovered articles were easily available in the market.
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47. PW35 Inspector Pankaj Malik (IO) deposed that on 30.10.2012, on receipt of information, he inspected the house no. WZ584 and came to know that the deceased no. 1 and 2 were taken to some unknown hospital by some relatives. He did not find any eye witness. He called the crime team and other police staff. He collected the MLC of the deceased no. 1. At that time, he did not find any eye witness in the hospital. At the same time, he also received information that the deceased no. 2 was admitted in the Max Hospital, Pitampura. Thereafter, he collected the MLC of the deceased no. 2. He took into possession one pajeb and ring vide memo Ex.PW35/A. Dead body of deceased no. 2 was got preserved on his application Ex.PW35/B. Thereafter, he recorded the statement of PW24 Ex.PW24/A. He prepared the rukka Ex.PW35/C and got the case registered. He prepared the site plan vide Ex.PW35/D. The crime team officials also inspected the spot and prepared report Ex.PW35/E. The photographer of the crime team took photographs and finger print expert took the chance print and submitted his report. He lifted the blood stains from the scene of crime and sealed parcel was taken into possession vide memo Ex.PW35/F. He also lifted the liquid from the floor of the room and sealed parcel was taken into possession vide memo Ex.PW35/G. He also lifted two cups from the slab of the kitchen and took the same into possession vide seizure memo Ex.PW35/H. He lifted one broken lock lying in the back room towards right side of the house and took the same into possession vide memo Ex.PW35/I. He also lifted the laptop make Dell and took into possession vide memo Ex.PW35/J. He recorded the statement of PW24 and PW31 regarding identification of dead body of the deceased no. 1 Ex.PW24/B and Ex.PW31/A. He also Page no. 21/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place recorded the statement of PW24 and PW31 regarding identification of deceased no. 2 Ex.PW24/C and Ex.PW31/B. He made request Ex.PW35/K for getting the postmortem on the body of the deceased no. 1 conducted. He also moved an application for getting the postmortem conducted on the dead body of the deceased no. 2 Ex.PW35/L. He prepared the death report i.e. form 25.35(B) vide Ex.PW35/M regarding postmortem of the deceased no. 2. He also prepared the death report i.e. form 25.35(B) vide Ex.PW35/N regarding postmortem of the deceased no.1. He prepared the brief facts vide Ex.PW35/O1 and Ex.PW35/O2. The postmortem on the body of the deceased no. 1 was conducted vide PM report Ex.PW22/A. The postmortem on the body of the deceased no. 2 was conducted vide PM report Ex.PW22/B. Thereafter, both the dead bodies were handed over vide receipt Ex.PW24/D and Ex.PW24/E.
48. PW35 also deposed that on 01.11.2012, he interrogated PW14 and recorded his statement. On 02.11.2012, he seized one sealed parcel containing viscera peti, sample seal, nails, vaginal swab etc. During the investigation, he met Pankaj Kumar (PW15) and recorded his statement.
49. PW35 also deposed the facts about arrest of the accused no. 1 and 2 on the same line as deposed by PW34. He also deposed about the investigation conducted on 10.12.2012 and 14.12.2012 as deposed by PW34. He also deposed the facts regarding recovery made at the instance of the accused no. 1 from the house at Village Koyal, District Narvana, Haryana as deposed by PW34. He prepared the Page no. 22/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place charge sheet and filed the same in the court against the accused no. 1 and 2.
50. PW35 also deposed that about the arrest of the accused no. 3 on 09.04.2013. On 10.04.2013, the accused no. 3 refused to take part in the TIP proceedings.
51. PW 35 also deposed that on 14.04.2013, the accused no 3 was interrogated and his disclosure statement was recorded Ex.PW35/Q. Thereafter, he along with PW34 and the accused no. 3 visited house no. WZ584 and prepared the pointing out memo of place of incident Ex.PW28/B. Thereafter they along with the accused no. 3 reached at Kailash Vihar and the accused no. 3 got recovered one gold chain and one pair of Pajeb from "Taand" from the back room of his house. He seized the same vide seizure memo Ex.PW28/C. He also deposed the facts about arrest of the accused no. 4 as deposed by PW34. The accused no. 4 had refused to participate in the TIP in the Rohini Jail.
52. PW 35 also deposed about the proceedings dated 18.04.2013 conducted with the accused no. 3 and 4. He identified the accused persons in the court. He also relied upon the documents relating to Khasra No. 816, Village Kirari, Suleman Nagar Ex.P2 and Ex.P3. He also identified the silver coins EX P4 to EX P13, silver pajeb collectively Ex. P14, ladies gold ring Ex. P15, gents gold ring Ex. P16, pair of pajeb (silver) Ex. P17, gold chain Ex. P18, necklace Ex. P19, gold ring Ex. P20, the laptop Ex.P25, the charger Ex.P26 and lock of the door of the room Ex.P27.
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53. In his cross examination, PW35 deposed that the crime team lifted chance print from the door frame (Chaukhat) and one steel glass and some photographs were also taken. The crime team also tried to lift the chance print from two tea cups but no chance print could not be lifted from the same. He recorded statement of PW24 at about 1.00 am on 31.10.2012 and sent the rukka at 2.50 am. PW24 had inspected his house thoroughly and thereafter, he made his statement to him. He admitted that he mentioned in his statement that Rs. 2.5lacs, jewellery and some documents were missing but he had not given any description of documents and jewellery in his statement. For the first time, PW 14 met him at the house of deceased on 01.11.2012 during the noon time. When PW14 gave his statement at the house of the deceased, PW24 was also present there. After seeing the two tea cups, it was observed that the tea had been recently taken with those cups. He admitted that he did not know PW15 prior that day.
54. PW35 also deposed that on 09.12.2012, PW34 apprehended the accused no. 2 and he did not try to run away. In the personal search of the accused no bus ticket was found in his pocket. They also arrested the accused no. 1 who had already been called by the police on that day by afternoon time. Accused no. 1 regularly used to join the investigation till date day but no incriminating evidence was found against him.
55. PW 35 also deposed that on 14.12.2012 at about 6.007.00 pm, Page no. 24/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place they reached at Village Mehrana, Distt. Jhajjar for the recovery. He admitted that after the arrest of accused no. 2, he had not taken him directly to the place of recovery. No site plan of place of recovery was prepared by him. He admitted that he had made an application for PC remand for the accused no. 1 and 2 but in the said application he had not mentioned about the recovery of documents regarding property bearing number D4, Aman Vihar, Delhi. No document regarding gas connection, electricity bills and any vehicle was recovered from any of the accused. He did not put any specific mark on the jewellery items before sealing the same.
56. PW 35 also deposed that on the basis of the first disclosure statement made by the accused, he did not take the accused no. 3 for recovery at Village Kablana, Distt., Jhajjar, Haryana. He never took the accused no. 3 to his house at Village Kablana.
57. PW35 also deposed that at the time of recovery at the instance of the accused no. 4, he did not take the broken lock into possession. He did not prepare any site plan of the place of recovery. He admitted that he had not prepared any site plan of the place of recovery of any of the article.
NODAL OFFICERS
58. PW16 Sh. Pawan SinghNodal Officer IDEA Cellular Ltd. deposed that the mobile phone no. 9812570673 was issued in the name of Vikram Drall and proved CAF Ex.PW16/A, copy of driving Page no. 25/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place license Ex.PW16/B, CDR from 01.10.2012 to 05.11.2012 Ex.PW16/C, Cell ID Chart Ex.PW16/D and certificate u/s 65 B of Indian Evidence Act at Ex.PW16/E respectively.
59. PW17 Sh. Israr Babu, Alternate Nodal Officer Vodafone Mobile Services Ltd. deposed that the mobile phone no. 8813035318 was issued in the name of Harender and proved CAF Ex.PW17/A, copy of ration card Ex.PW17/B, CDR from 01.10.2012 to 05.11.2012 Ex.PW17/C, Cell ID Chart Ex.PW17/D and certificate u/s 65 B of Indian Evidence Act at Ex.PW17/E.
60. PW18 Sh. M.N. Vijayan, Nodal Officer Tata Teleservices Ltd. deposed that the mobile phone no. 9211416633 was issued in the name of Shanti Swaroop and proved CAF Ex.PW18/A, copy of voter ID Ex.PW18/B, CDR from 01.10.2012 to 05.11.2012 Ex.PW18/C, Cell ID Chart Ex.PW18/D and certificate u/s 65 B of Indian Evidence Act Ex.PW18/E. He also deposed that the mobile phone no. 9034758781 was issued in the name of Yogender Singh and proved CAF Ex.PW18/F, copy of voter ID Ex.PW18/G, CDR from 01.10.2012 to 05.11.2012 Ex.PW18/H, Cell ID Chart Ex.PW18/I and certificate u/s 65 B of Indian Evidence Act Ex.PW18/J. Medical Evidence:
61. PW19 Sh. Santosh TripathiSSO (Chemistry) FSL Rohini deposed that on chemical and TLC Examination, no poison was detected in the exhibits supplied to him. He proved his report Page no. 26/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place Ex.PW19/A.
62. PW20 Dr. ShivaniCMO MAX Hospital deposed that on 30.10.2012, the deceased no. 2 was brought to the hospital and was declared brought dead. She proved her MLC Ex.PW20/A.
63. PW21 Dr. Sanjay KaushikCMO Maharaja Agrasen Hospital deposed that on 30.10.2012, he examined the deceased no. 1 and declared him brought dead vide MLC Ex.PW21/A. He admitted that history of the assault was not mentioned in the MLC.
64. PW22 Dr. Vijay Dhankar, HOD (Forensic Medicine) BSA Hospital, Rohini, Delhi deposed that on 31.10.2012 from 2.30 pm to 3.45 pm, he conducted postmortem examination on the body of the deceased no. 1 and found following external injuries :
1. Abraded ligature mark present all around the neck. The mark was 41 cm long, 0.5cm to 0.7cm in width and present 7cm below the chin in the midline and 7cm from the ears on the right and left sides and merging with hairline at the back of neck. The mark was completely encircling the neck and horizontally placed below the thyroid cartilage.
2. Laceration 1 cm long with apposed margins and surrounding contusion 1cm x 1cm present over the front of middle of chin.
65. PW22 deposed that on internal examination, Extravasation of Page no. 27/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place blood was present at places within strap muscles of neck and in the posterior wall of trachea. The blood mixed frothy, fluid was present in the trachea. Extravasation of blood was also present over the right temporal partial and occipital regions of the head and in the right temporal muscles. Defuse thin layer sub arachnoid hemorrhage was present all over the body. Extravasation of blood was also present over the upper front of chest below the clavicle. All internal organs were congested.
66. PW22 opined that death was due to asphyxia consequent to ligature strangulation and all injuries were antemortem and fresh at the time of death. Time since death was about one day before the time of postmortem and within about 13 hours of last meal. Ligature material was likely to be smooth surface wire or rope with outside diameter of about 0.5cm. Other injuries has been caused by blunt force. The external injury over the chin and internal injury over the front of chest were indicative of a scuffle and the manner of death was homicidal. He proved the postmortem report Ex. PW 22/A.
67. PW22 also deposed that on the same day from 4pm to 5.45 pm, he also conducted the postmortem on the dead body of the deceased no. 2 and found following external injuries :
1. Abrated ligature mark present all around the neck. The mark was 37 cm long, 0.5cm to 0.1 cm in width and present 7cm below the chin in the midline and 8cm from the right ear and 7cm from the left ear and merging with the hairline at the back of neck. The mark was completely encircling the neck and Page no. 28/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place horizontally placed below the thyroid cartilage.
2. Laceration 2cm long. Vertically placed, present over the right lobule of ear. The laceration involves the full thickness of the lobule.
3. Laceration 2cm long, vertically placed present over the left lobule of ear. The laceration involves the full thickness of the lobule.
4. Scratch abrasion 3cm x 1mm slightly curved present over the lower part of front of neck at the right side of midline.
68. PW22 deposed that on internal examination, extravasation of blood was present over the occipital region of head. Defuse thin layered subarachnoid hemorrhage all over the brain. Extravasation of blood was present at places within strap muscles of neck and in the subcutaneous tissues over the lower part of front of neck. Blood mixed frothy fluid was present in the trachea. All internal organs were congested.
69. PW22 opined that death was due to asphyxia consequent to ligature strangulation and all injuries were antemortem and fresh at the time of death. Time since death was about one day prior to the time of the postmortem and within about 13 hours of last meal.
Ligature material was likely to be a smooth surface wire or rope with outside diameter of about 0.5cm and injuries no. 2 and 3 have been caused by a tearing movement of the tissues and injury no. 4 has been caused by sharp edged or pointed object. The external injury over the neck, ears and corresponding internal injuries were indicative of a Page no. 29/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place scuffle and the manner of death was homicidal. He proved the postmortem report Ex. PW 22/B.
70. PW32 Ms. Shashi Bala PahujaSSO (Biology) DANFP Unit FSL Delhi proved the biological report Ex.PW 32/A and serological examination report Ex. PW 32/B. STATEMENT OF ACCUSED
71. After completing the prosecution evidence, statements of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence/material were put to them which they have denied. All the accused have stated that they are innocent and have been falsely implicated in this case.
DEFENCE EVIDENCE
72. The accused have examined DW1 Satish Kumar Jindal (brother of accused no. 1) in their defence and he deposed that on 25.02.1984, the deceased no. 2 married the deceased no. 1 at Delhi and were living in Delhi. The deceased no. 1 got separated from PW14 in the year 198586 and also separated their properties. The property no. D4 was decided to be in share of both the deceased, but, PW14 did not pay Rs. 2025 lacs to the deceased no. 1 in terms of the family settlement. PW14 also did not give the share of deceased no. 1 in the property situated at Narela. Due to that reasons, their relationship was strained and they were not on visiting terms. He also deposed Page no. 30/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place that six months before the incident, the accused no. 1 vacated the portion of property D4 peacefully on asking of the deceased no. 1. Thereafter, PW14 started his business of property dealing from the property no. D4. On 30.10.2012 at about 8:30 pm, PW24 called him and informed about hospitalization of the deceased no. 1. He reached the hospital at 9.15 pm where PW24, PW14 and other police officials were present and made inquiries from them. During inquiry, PW14 laid suspicion on Suraj and Trilok behind the said incident. After coming back to the scene of crime, the police asked PW24 to search the house to find out whether anything was stolen or not. After search, PW24 informed that nothing was stolen. House of the deceased no. 1 did not come in the way from the house of PW14 to his office at Mundaka. On 15.11.2012, PW14 called him at house no. WZ584 where the police and PW24 & one Golu was present. PW24 & one Golu showed some jewellery and property documents to the police which was later on planted upon the accused.
73. I have heard the ld. Addl. PP for the State and counsels for the accused and have perused the material available on record including the written submissions.
74. In the present case, the deceased no. 1 and 2 were the husband and wife and had two sons PW24 & PW31 and one daughter namely Ruchi. The accused no. 1 was brother in law of the deceased no. 1 and brother of the deceased no.2. FIR was registered on the statement of PW24.There was no eye witness to the incident. Case of the Page no. 31/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place prosecution is based on the circumstantial evidence.
LAST SEEN THEORY
75. Last seen theory of the prosecution is rested on the testimony of PW14.
76. Case of the prosecution is that on 30.10.2012 at about 12.30 pm, when PW14 was going to his office in his car and passed through the house no. WZ584, he noticed that three boys were coming out of the said house and two boys out of them were carrying black colour bags. That time, he thought they might have come to meet his brother i.e. the deceased no. 1. During the investigation, PW14 identified the accused no. 2 to 4 as the said three boys to whom he had seen coming out of the house no. WZ584 on 30.10.2012. Hence, according to the prosecution, applying the last seen theory, it should be held that the accused no. 2 to 4 committed the offence.
77. It is evident from the post mortem reports Ex. PW 22/A and Ex. 22/B that time since death of both the deceased was about one day before the time of postmortem and within about 13 hours of last meal.
77A. In "State of Goa v. Sanjay Thakran" reported in (2007) 3 SCC 755, the Supreme Court noted the general principles with reference to the principles of last seen together in Bodhraj v. State of J&K (2002) 8 SCC 45 as under:
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31. "The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
32. In Ramreddy Rajesh Khanna Reddy (2006) 10 SCC 172 this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration."
78. In view of the principles laid down in the above cited judgment, it is to be ascertained as to whether the last seen theory is applicable in the present case.
79. Before ascertaining the reliability of statement of PW14, presume for the sake of arguments only that the prosecution story to this effect is correct. Now according to the prosecution, PW14 noticed the accused no. 2 to 4 coming out the said house at 12.30 pm on Page no. 33/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place 30.10.2012. It is not the case of the prosecution that PW14 noticed both the deceased alive with the accused no. 2 to 4 at about 12.30 pm or that the accused no. 2 to 4 entered the said house with both the deceased and then came out. As such, the very first condition to apply the last seen theory is not fulfilled in the present case. According to post mortem reports, the death took place about 2.30 pm and within about 1 to 3 hours of last meal. Hence, it can be held that once, the accused no. 2 to 4 left the said house, both the deceased were alive and thereafter, they had their meal and died within 1 to 3 hours thereafter. Being so, the last seen theory does not apply in the present case.
80. Now I propose to decide as to whether the statement of PW14 to this effect is reliable in nature.
81. PW14 in his cross examination deposed that on 30.10.2012 at 9.00 pm, he came to know about the condition of the deceased no. 1 and went to Maharaja Agrasen Hospital. Once he reached the said hospital, the police officials were there. At the hospital, he met PW24 and Satish (brother of the accused no. 1) and remained there for 30 minutes. During that period, he did not disclose the fact of noticing three boys coming out of the house of deceased no. 1 that afternoon to anyone. PW24 in his cross examination substantiated the said fact and deposed that to his knowledge, none of his relatives informed the police about their knowledge relating to the incident and assailants. PW24 deposed that thereafter, he along with his relatives came back to the scene of crime between 11 pm and 12 midnight. PW14 also Page no. 34/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place deposed that he came back from the hospital to the scene of crime at 10.00 pm and found the police officials like DCP, ACP etc. at the spot. According to him, the police remained there till 4.00 am, while according to PW24, the police remained at the spot till 5.00 am/6.00 am. It implies that the police remained at the scene of crime for a substantial period in the presence of PW14. However, as deposed by PW14, even during the said period, he did not disclose to anyone having seen three boys coming out from the said house at afternoon. But, at the same time, he deposed that he, at Maharaja Agarsen Hospital, in the presence of PW24 and the police officials including DCP, ACP, SHO laid suspicion on Trilok and Suraj with whom the deceased no. 1 was dealing in MCX Metals and the police officials took the note of the same. PW24 had shown his ignorance about the said fact but substantiated the fact that the deceased no. 1 was dealing in metals with Trilok. PW35 denied the said fact. But DW1 in his cross examination deposed that on the date of incident, PW14 laid suspicion on Suraj and Trilok behind the said incident in the presence of ACP, SHO etc. No suggestion to the contrary was given by the prosecution. As such, an adverse inference can be drawn against it. In view of the foregoing discussions, it can be held that from 9.00 pm till 6.00 am, PW14 did not disclose the fact of noticing three boys to anyone despite the presence of the senior police officials at the scene of crime. At the same time, he laid suspicion on Trilok and Suraj with whom the deceased no. 1 was dealing in MCX Metals and the police officials took the note of the same. Hence, at the first instance, PW14 laid the suspicion on Trilok and Suraj and remained completely silent about noticing three boys for a considerable period.
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82. Now the question arises when the theory of three boys came into picture. According to PW35, PW14 met him for the first time at the scene of crime on 01.11.2012 at noon. That time, he gave his statement in the presence of PW24 at the scene of crime. PW24 also deposed that on 01.11.2012, PW14 told him about the said fact. As such, according to the prosecution, vide statement dated 01.11.2012, PW14 for the first time disclosed the fact of noticing three boys to the IO and also informed PW24 to that effect. However, PW14 in his testimony deposed that his statement was recorded on 31.10.2012 and he denied the suggestion to the contrary. Further, PW35 deposed that statement dated 01.11.2012 was made by PW14 at the scene of crime in presence of PW24, but PW14 denied the said fact. To this effect, PW31 deposed that IO recorded the statement of PW14 on 01.11.2012 at the house no. WZ584 in his presence but PW24 deposed that on 01.11.2012, only his statement was recorded at his residence and no relative was present that time i.e. PW14, uncle of PW24. Hence, according to PW14, his statement was recorded on 31.10.2012 only and he did not make any statement on 01.11.2012. But, the prosecution has not produced on record any statement dated 31.10.2012. On the other hand, statement dated 01.11.2012 relied upon by the prosecution was not made by PW14 as deposed by him. Simultaneously, it is not the case of PW14 or the prosecution that statement of PW14 was also recorded on 01.11.2012. Hence, it raises a doubt as to authenticity of the statement dated 01.11.2012 of PW14.
83. Now I proceed with the presumption that statement dated Page no. 36/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place 01.11.2012 of PW14 was his first statement whereby he disclosed the fact of having seen three boys coming out of the house on the date of incident. In view of the foregoing discussions, it can be held that from 9.00 pm on 30.10.2012 till noon on 01.11.2012, PW14 had ample opportunity to disclose the said fact either to PW24 or the police officials once they investigating the matter but that was not done. PW14 has failed to give any explanation for his silence and such a delay. As such, PW14 made a complete shift in his stand from the suspicion on Trilok and Suraj only to three different boys without any justification. PW14 has also failed to explain why he made a shift from Trilok and Suraj to the said three boys as it is not the case of the prosecution that PW14 could not remember the said fact at the beginning. Further, it is highly improbable that if PW14 would have seen the three boys that day and had suspected them behind for the incident, he would have remained calm to that effect for two days.
84. It is evident from the testimony of PW14, PW24, PW31 and DW1 that house of the deceased no. 1 did not come in the way of PW14 to reach his office from his house. It is not the case of the prosecution that that day, PW14 changed his route for any specific reason. Hence, the question as to why PW14 opted that particular route that day remained unanswered. Therefore, the presence of PW14 at 12.30 pm on 30.10.2012 in front of the house no. WZ584 is doubtful.
85. Further, perusal of the statement u/s 161 CrPC of PW14 reveals Page no. 37/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place that he though mentioned about three boys, but, he did not name anyone nor gave any description as to their identity. It is the case of the prosecution that on 18.04.2013, he identified the accused no. 3 as one of the boys. PW14 in his testimony deposed that he used to run his office of property dealing from the property no. D4. Accused no. 1 and 3 used to make inquiries from him about sell & purchase of the properties and the accused no. 3 was connected with Sahib Singh Verma and BJP as he had seen his posters in the area. This proves that the accused no. 3 was well known to PW14 much prior to the date of incident. If that was so, then, PW14 could have easily identified the accused no. 3 as one of the boys whom he had noticed coming out of the house of deceased no. 1 on the date of incident and named him. However, PW14 had not stated anything about the accused no. 3 on 01.11.2012. According to the prosecution, on 09.12.2012, the accused no. 2 was arrested and in his disclosure statement, he disclosed the name of the remaining accused including the accused no. 3. As such, from 01.11.2012 to 09.12.2012 also, PW14 remained completely silent about the identity of the accused no. 3. The prosecution has completely failed to give any justification for such silence of PW14. Therefore, it can be held that PW14 despite knowing the accused no. 3 much prior to the date of incident had never named him at his own as a suspect in the present case. The said conduct of PW14 is completely unnatural and therefore, raises a doubt on his version of three boys. In fact, the said silence of PW14 speaks a lot. Therefore, the testimony of PW14 to this effect is not reliable in nature.
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86. Further, it is not the case of the prosecution that the accused no. 2 to 4 were known to the deceased persons. According to PW14 & PW24, the deceased used to bolt the door from inside and open the same after ringing the door bell and door bell was in the working condition. It is not the case of forced entry in the house no. WZ584. PW14 in his statement dated 01.11.2012 stated that once he saw three boys coming out the said house, he thought that they might have visited relating to some property matter. But it is not the case of the prosecution that the deceased no. 1 was doing the work of property dealing from his house. Therefore, there could not be any occasion for any unknown person i.e. the accused no. 2 to 4 to enter the house. It is not the case of the prosecution that the murder was committed by bullet or stabbing injury. Rather case of the prosecution is that death was caused due to throttling. Site plan Ex. 10/A reveals that the murder of the deceased no. 1 was committed in the room which was located on the front side of the house facing the street. It has come in the evidence that width of the street was about 1215 feet and just opposite to the house, some construction work was going on at a site and the lanter was being laid that day. In the given circumstances, the deceased no. 1 must have raised hue & cry which could be easily heard by the labor working at the site because width of the street was about 1215 feet, but, it is not the case of the prosecution. As such, the presence of the accused no. 2 to 4 at the scene of crime is highly doubtful.
87. According to PW35, two cups were seized from the slab of the kitchen at the scene of crime and on observation, it was found as if the tea had been consumed from the said cups recently, however, no Page no. 39/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place chance prints could be lifted from there. According to PM report, the death took place around 2:30 p.m. According to the prosecution, the dead body of the deceased was for the first time noticed at about 8:15 p.m. In these circumstances, it can be held that the tea would have been consumed from those cups between 2:30 p.m. to 8:15 p.m. However, the investigation is completely silent on that aspect. In the given circumstances, it cannot be ruled out that some known person was involved in the murder of both the deceased, but IO had not conducted any investigation to that effect.
88. In view of the foregoing discussions, it can be held that the last seen theory of the prosecution rested on the testimony of PW14 is doubtful and does not inspire confidence of this court.
MOTIVE
89. According to the prosecution, the accused no. 1 along with his brothers was residing in the property no. D4 which belonged to the deceased no. 1. To grab the said property, he along with the accused no. 2 to 4 hatched a conspiracy and in pursuance thereto, he got accomplished the incident. As such, according to the prosecution, grabbing of the property no. D4 was the motive with the accused no. 1 to commit the offence and to accomplish the same, he along with the accused no. 2 to 4 hatched a conspiracy.
90. The accused no. 1 is the maternal uncle of PW24. Admittedly, he along with his brothers was residing in a portion of the property Page no. 40/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place no. D4. PW24 deposed that the accused no. 1 had already vacated a portion of the property no. D4 which was in his possession on asking of his father i.e. the deceased no. 1 simply i.e. without consideration. PW24 also deposed that he and his family had cordial relationship with his maternal uncles including the accused no. 1. As such, according to PW24, there was no property dispute between him, his family and the accused no. 1. In fact, the accused no. 1 vacated a portion of the property no. D4 without consideration.
91. To this effect, PW14 in his examination in chief deposed that the accused no. 1 was doing the work of wood on 300 sq. yards of the property no. D4 and one and a half year ago prior to 26.07.2013 i.e. date of his deposition in the court, the deceased no. 1 sold the same for Rs. 1 crore to which the accused no. 1 and his brothers objected and the accused no. 1 demanded Rs. 25 lacs. Once, the said demand was not fulfilled the accused no. 1 threatened the deceased no. 1. On the contrary, PW14 in his cross examination deposed that the accused no. 1 vacated 300 sq. yards out of 800 sq. yards of the property no. D4 and did not object for the same. As such, firstly, the said version of PW14 is not only contrary to his version in his cross examination and version of PW24 but also vague in nature; secondly, the prosecution has failed to prove the same; and thirdly, the best person to know about the said transaction, objection and demand of the accused no. 1 to that effect was PW24 but he did not state the said facts. Rather, PW24 stated that even after vacation of the said property and the said transaction, their relationship with the accused no. 1 remained cordial. Hence, the statement of PW14 to this effect does not inspire Page no. 41/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place confidence of this court.
92. To prove the motive, the prosecution also relied upon the recovery of the documents of the property no. D4 made at the instance of the accused no. 1.
93. According to PW24, the documents of the property no. WZ584 A were found missing. However, the property documents shown to be recovered at the instance of the accused no. 1 related to the property D4. As such, there is contradiction in the property documents which were found missing and which were recovered. Further, according to PW24, the property no. D4 stood in the name of the deceased no. 2. It is not the case of prosecution that the deceased no. 2 had executed any testamentary document in favour of the accused no. 1 relating to the property no. D4 and therefore, he was the beneficiary there under. It is also not the case of the prosecution that the accused no. 1 was the legal heir of the deceased no. 2. Therefore, the property documents of D4 were of no use for the accused no. 1 to get the title of the same converted in his own name. Further, as discussed in later part of the judgment, the recovery of the documents of property no. D4 at the instance of the accused no. 1 is doubtful and does not inspire confidence of this court. Therefore, the recovery of the documents of property no. D4 are of no consequence.
94. In addition, PW14 in his testimony introduced another motive i.e. the accused no. 1 was doing the work of committee and had to pay Page no. 42/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place Rs. 88 lacs to different parties. PW15 also deposed to that effect. But, both of them failed to prove the same.
95. On the other hand, according to PW14, in the year 198788, he came to Delhi along with his family and started his business. In the year 1991, the deceased no. 1 also came to Delhi and then, they started business in partnership. He provided a house to the deceased no. 1 and also constructed a house for himself. One year thereafter, they separated their business. PW14 also deposed that the deceased no. 1 did not attend the marriage of his sons and daughter as their relations were not cordial because the deceased no. 2 used to take favour of her brothers i.e. brother in laws of the deceased no. 1 out of the way over their family. To this effect, PW24 deposed that PW14 and they used to talk occasionally on functions, otherwise, they had no concern with each other. In the year 2012, PW14 and the deceased no. 1 did the work of property dealing partly. Before that, they had strained relationship due to some quarrel between PW14 and the deceased no. 2 for some domestic reason which he did not disclose. In view of the testimony of PW14 and PW24, it can be held that from the year 1992 till the year 2012, the relationship between PW14 on the one hand and the deceased no. 1, 2 and their family on the other hand was not cordial. In fact, their relationship was strained to the extent that the deceased no. 1 did not attend the marriage of the children of PW14. According to PW14, the reason for said strained relationship was the favour given by the deceased no. 2 to his brothers including the accused no. 1 out of the way over the family. It is only in the year 2012, PW14 and the deceased no. 1 did the work Page no. 43/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place of property together. PW14 in his cross examination deposed that he started the property dealing business from the property no. D4 in order to get it vacated from the accused no. 1 which was initially purchased jointly by him and the deceased no. 1, but, later on, was partitioned.
96. In crossexamination of DW1, no suggestion was given by the prosecution that there was no property dispute between PW14 and the deceased no. 1 and therefore, there was no cause for strained relationship between them. One suggestion was given by the prosecution that DW1 was deliberately diverting the blame on PW14 by taking the advantage of strained family relationship which he had with the deceased no. 1 only to save accused no. 1. The said suggestion was denied by DW1. But, the said suggestion reveals that the prosecution was well aware that the relationship between PW14 and the deceased no. 1 was strained because of the property disputes between them. Despite that, no investigation was conducted by IO to that effect.
97. Therefore, in view of the foregoing discussions, it can be held that it was PW14 who hated both the deceased and the accused no.1. It cannot be ruled out that it was not the accused no. 1 who wanted to grab the property no. D4 but it was PW14 who wanted to get the said property vacated from the accused no. 1 and his brothers who were never liked by him and was the reason for the strained relationship between PW14 and both the deceased. However, no investigation was done from that angle.
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98. In view of the foregoing discussions, it can be held that the prosecution has failed to prove that the accused no. 1 had the motive to grab the property no. D4 and for that reason, he indulged in such an offence. Therefore, the accused no. 2 to 4 also could not have any motive to help the accused no. 1 for that reason.
Recovery of the Articles
99. Case of the prosecution is that in pursuance to the conspiracy between the accused persons, firstly, the accused no. 2 to 4 committed robbery and then murdered both the deceased.
100. Now the first question arises as to what articles were robbed by the accused no. 2 to 4 on the date of incident from the house no. WZ584. In other words, what articles were found missing from the house no. WZ584 after the incident. To prove the detail of articles robbed by the accused no. 2 to 4, the prosecution relied upon the statement of PW24.
101. PW24 in his first statement Ex.PW24/A dated 31.10.2012 stated that after breaking the lock of the almirah, he found missing Rs. 2.5 lacs in cash, one gold chain, 3 gold finger rings, one gold set and one silver glass. He also found missing purse of his father containing some money, driving licence and some documents; laptop bag; and three mobile phones. He suspected that some unknown person had committed robbery in his house and thereafter, murdered his parents.
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102. PW24 in his second statement u/s 161 CrPC dated 31.10.2012 Ex.PW24/DX2 had not mentioned anything about the missing articles.
103. PW24 in his third statement u/s 161 CrPC dated 01.11.2012 Ex.PW24/DX1 stated that once PW14 informed him about three boys, he checked the almirah and other places of the house no. WZ584 and noticed that file containing the documents of property no. WZ584A; documents of Safari car and Santro car; RC of vehicle Sunny; electricity & water bills; and gas connection book were missing. He suspected that the accused no. 1 having the motive to usurp the property, was behind the said incident.
104. PW24 in his examination in chief deposed about the missing articles as mentioned in his statements Ex.PW24/A and Ex.PW24/DX1. PW24 and PW35 deposed that PW24 had thoroughly inspected the house before mentioning about the missing articles. PW24 had also not stated in his statement Ex.PW24/A that he would re inspect the said house to find out any other missing article which could not be mentioned in his statement Ex.PW24/A. It implies that PW24 mentioned about the missing articles in his statement Ex.PW24/A after having thoroughly checked the house no. WZ584 and according to him, the same was final list of missing articles.
105. PW24 in his statement Ex.PW24/DX1 mentioned about additional missing articles i.e. documents of the property no. WZ584A; documents of Safari car and Santro car; RC of vehicle Page no. 46/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place Sunny; electricity & water bills; and gas connection book. The reason assigned by him to reinspect his house is that PW14 informed him that he had seen three boys coming out of his house out of which two were carrying two heavy bags of black colour. PW14 though mentioned about two boys carrying black bags but had not stated that those bags appeared to be heavy in weight. As such, the reason assigned by PW24 to re inspect his house is not justifiable.
106. PW24 further deposed that on 15.11.2012, once PW14 was present in his house, the police came and they again checked the documents in the house WZ584 and did not find any document missing. He also deposed that after the death of his parents, all the property documents remained in his possession except the documents mentioned in his statement i.e. the statement Ex.PW24/DX1 wherein he mentioned about documents of the property no. WZ584A. In his cross examination, PW24 admitted that he had not given the number and description of jewelery articles for the purpose of its identification nor mentioned about 10 silver coins, gas connection documents, documents related to vehicle and the property document D4 in his statement Ex.PW24/A. He also admitted that there was no specific mark on the jewelery and the same was easily available in the market.
107. In view of the foregoing discussions, it can be held that PW24 made the improvement in his statement Ex.PW24/DX1 in comparison to his statement Ex.PW24/A that too without justification. Further, the documents of property no. D4 were in possession of PW24 on 15.11.2012. PW24 had not mentioned the number & description of Page no. 47/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place and specific mark on jewelery articles for the purpose of identification nor mentioned about 10 silver coins, gas connection documents, documents related to vehicle and the property document D4 in his statement Ex.PW24/A. Recovery of the articles at the instance of the accused no. 1
108. According to the prosecution, the accused no. 1 was arrested on 09.12.2012 vide arrest memo Ex.PW34/D at 9.30 pm. Thereafter, he made his disclosure statement Ex.PW34/F same day wherein he disclosed that on 31.10.2012, he contacted the accused no. 3 and collected the documents of property no. D4 and other documents and concealed those documents in his village Koyal and could get them recovered. In pursuance to the said information, PW34 and PW35 took him to his house at Village Koyal Distt. Narwana on 16.12.2012 and from there, the accused no. 1 got recovered a yellow coloured file containing the original documents of property no. D4 Ex. P1 to Ex. P3. In view thereof, Ld. Addl. PP pleaded that the recovery of the said documents at the instance of the accused no. 1 showed his specific knowledge about the property documents robbed and proves his involvement in the said incident.
109. Firstly, the prosecution has failed to explain why IO waited from 09.12.2012 to 16.12.2012 to make effort to recover the documents once the disclosure statement of the accused no. 1 was with him on 09.12.2012 itself. As such, the said recovery in pursuance to the said disclosure statement does not inspire confidence of this court. Reliance Page no. 48/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place is placed on the judgment passed by the Hon'ble Delhi High Court in case titled as "Yogesh vs. State" reported in 2011 (1) JCC 646. Secondly, the prosecution relied upon the property documents Ex. P1 to Ex.P3 executed by PW14 in favour of the deceased no. 2 regarding a portion of the property no. D4 and shown its recovery at the instance of the accused no. 1. According to statement dated 31.10.2012 Ex. PW24/A made by PW24, some documents kept by his father in his purse were found missing. But PW24 did not mention that those documents were the property documents what to talk of the property documents of D4. Further, by no stretch of imagination, it can be held that the documents Ex. P1 to Ex.P3 could be kept in a purse kept by father of PW24. More so, there is on impression on the said documents to show that firstly, they were folded and then were kept in the purse. As such, it can be held that the documents referred by PW24 in his statement Ex. PW24/A were not the property documents Ex. P1 to Ex.P3. According to PW24, on 01.11.2012, he noticed that the property documents of WZ584A were missing and except that all other the property documents were with him. PW14 also deposed that on 15.11.2012, he came to know that police had come to the house of deceased where he called Satish in the presence of Sanjay and Golu, PW30 Naveen Garg and checked the documents and found that all the documents were intact in the almirah on that day. Hence, according to this witness also on 15.11.2012 all the documents including the property documents were found intact. As such, the property documents referred by PW24 in his statement Ex.PW24/DX1 could not be the property documents Ex. P1 to Ex.P3. In fact, according to PW24, the same were in his possession on Page no. 49/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place 01.11.2012 and 15.11.2012. Now the question arises once the documents of the property no. D4 were with PW24 on 15.11.2012, then, how could the same be recovered at the instance of the accused no. 1 on 16.12.2012 and the prosecution failed to answer the same.
110. Further, PW33 deposed that he came to know about missing of Rs. 2.5 lacs in cash, jewellery and mobile phones but remained completely silent about missing of any document. PW30 and PW31 also stated that they came to know about missing of certain articles but remained completely silent about missing of any document.
111. In view of the foregoing discussions, it can be held that recovery of the property documents Ex. P1 to Ex. P3 at the instance of accused no. 1 is doubtful and does not inspire confidence of this court. In fact, it can be held that the documents Ex. P1 to Ex. P3 were planted by the IO to show their recovery at the instance of the accused no. 1 and the same could not have been done without the help of PW24.
Recovery at the instance of accused no. 2
112. According to the prosecution, the accused no. 2 was arrested on 09.12.2012 vide arrest memo Ex.PW34/A at 4.15 pm. Thereafter, he made his disclosure statement Ex.PW34/C same day wherein he disclosed that he had concealed one gold finger ring and one gold set in his village and could get them recovered. In pursuance to the said information, PW34 and PW35 took him to his residence at village Page no. 50/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place Mehrana, Distt. Jhajjar, Haryana on 14.12.2012 from where he got recovered one gold lady's necklace only and one gold finger ring from a room on the first floor of the said house. In view thereof, Ld. Addl. PP pleaded that the said recovery at the instance of the accused no. 2 showed his specific knowledge about the articles robbed and proves his involvement in the said incident.
113. Firstly, the prosecution has failed to explain why IO waited from 09.12.2012 to 14.12.2012 to make effort to recover the said documents once the disclosure statement of accused no. 2 was with him on 09.12.2012 itself. As such, the said recovery does not inspire confidence of this court. Reliance is placed on the judgment titled as "Yogesh vs. State" (supra). Secondly, in the disclosure statement Ex. PW 34/C, the accused no. 2 had not disclosed even name of the village what to talk of the place and house where those articles were kept by him. The prosecution has failed to explain source of knowledge of the IO to that effect. Thirdly, according to PW24, he had not given the description of the missing jewelery to the IO and jewelery recovered was not having any specific mark and was easily available in the market. As such, the prosecution has failed to lead any evidence to prove that the recovered jewellary articles exclusively belonged to the deceased persons.
114. In view of the foregoing discussions, it can be held that the recovery shown at the instance of the accused no. 2 is doubtful and does not inspire confidence of this court. Therefore, the recovery of the said articles and their identification by PW24 does not inspire Page no. 51/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place confidence of this court.
Recovery at the instance of accused no. 3
115. According to PW25, on secret information, the accused no. 3 was arrested on 08.04.2013 vide arrest memo Ex.PW25/B in pursuance to DD no. 20 u/s 41.1(BA) CrPC and his disclosure statement Ex.PW25/D was recorded. In the said disclosure statement, the accused no. 3 disclosed that he kept the jewelery and money which fallen in his share in his village Kablana and could get them recovered. PW26 also deposed to that effect.
116. PW34 deposed that on 09.04.2013, the accused no. 3 was produced before the concerned MM and was arrested vide arrest memo Ex.PW34/I. On 09.04.2013, the accused no. 3 made a disclosure statement Ex.PW34/J wherein he stated that he concealed the cash and jewellery at his village Kablana.
117. PW35 deposed that on 14.04.2013, the accused no. 3 made a disclosure statement Ex.PW35/Q which is "undated" wherein he stated that earlier, he falsely stated that he concealed the jewellery at his village Kablana and in fact, he had concealed a gold chain and silver jewellery at his place Kailash Vihar, Kirari, Sulemann Nagar, Delhi and could get it recovered. In pursuance thereto, on 14.04.2013, PW34, PW35, PW28 visited the house no. 24, Kailash Vihar, Kirari Suleman Nagar along with the accused no. 3 who got recovered one gold chain and one pair of pajeb from back room of his house. In view thereof, Page no. 52/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place Ld. Addl. PP pleaded that the said recovery at the instance of the accused no. 3 showed his specific knowledge about the articles robbed at the time of incident and his involvement in the said incident.
118. According to the prosecution, on 09.04.2013, the accused no. 3 made his first disclosure statement Ex.PW34/J. However, IO acted upon the disclosure statement Ex.PW35/Q which is "undated" and shown the recovery made in pursuance thereto. PW35 in his cross examination deposed that on the basis of disclosure statement Ex.PW34/J, he did not take the accused for recovery at village Kablana, District Jhajjar Haryana. If that was so, IO has failed to explain as to why he recorded disclosure statement Ex.PW35/Q that too undated and not as a supplementary disclosure statement. Further, the prosecution has failed to prove that IO recorded disclosure statement Ex. PW35/Q on 14.04.2012. Therefore, the authenticity of the disclosure statement Ex. PW35/Q is doubtful. Further, missing of one pair of silver pajeb was not mentioned by PW24 and was not having any specific mark and was easily available in the market. As such, the prosecution has failed to lead any evidence to prove that the recovered jewellary articles exclusively belonged to the deceased persons.
119. In view of the foregoing discussions, it can be held that the recovery shown at the instance of the accused no. 3 is doubtful and does not inspire confidence of this court. Therefore, the recovery of the said articles and their identification by PW24 does not inspire confidence of this court.
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120. According to the prosecution, on secret information, the accused no. 4 was arrested on 14.04.2013 vide arrest memo Ex.PW34/K. The accused no. 4 made a disclosure statement Ex.PW34/M which is "undated" wherein he stated that he had spent the money which came in his share and could get recover gold ring and some silver jewelery from his village Silothi. Thereafter, he made a supplementary disclosure statement dated 18.04.2013 Ex.PW34/P wherein he stated that to save himself, he earlier stated that he had concealed the jewellery at his village Silothi, however, the fact was that he concealed two gold rings, silver pajeb and some silver coins in a room on the first floor of the house no. 384, 40 Foota Road, Aman Vihar, Delhi where he used to reside and the said house belonged to the accused no. 3. According to PW34, the accused no. 4 got recovered the said articles which were seized vide seizure memo Ex.PW34/O. In his cross examination, he deposed that the room from where the articles were recovered was locked and the lock was broken by the accused no. 4. However, he showed his ignorance whether the said broken lock was taken into possession or not. No site plan of place of recovery was prepared. He showed his ignorance whether the recovered articles were easily available in the market or not. He could not tell the number of jewellery articles with which the recovered articles were mixed for the purpose of TIP. PW35 also deposed on the same lines.
121. Further, two disclosure statements of the accused no. 4 were Page no. 54/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place recorded out of which one is "undated". It is not the case of the prosecution that the investigation was made in pursuance to the first disclosure statement and once no recovery was made in pursuance thereto, the supplementary statement was recorded. The prosecution has not given any explanation as to why the disclosure statement Ex. PW 34/M is undated. According to the prosecution, the house no. 348 belonged to the accused no. 3 from where the recovery was effected at the instance of accused no. 4. According to the prosecution, both the said accused were involved in the incident. Therefore, it is highly improbable that the accused no. 4 would conceal the robbed articles at the place which belonged to the accused no. 3. Further, according to PW24, the said jewellary was not having any specific mark and was easily available in the market. As such, the prosecution has failed to lead any evidence to prove that the recovered jewellary articles exclusively belonged to the deceased persons.
122. In view of the foregoing discussions, it can be held that the recovery shown at the instance of the accused no. 4 is doubtful and does not inspire confidence of this court. Therefore, the recovery of the said articles and their identification by PW24 does not inspire confidence of this court.
REIKI
123. Case of the prosecution is that one month before the date of incident, the accused no. 3 called PW15 at his office along with his vehicle. Once PW15 along with his friend Naveen visited the office of the accused no. 3, the accused no. 3 along with the accused Page no. 55/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place no. 1 and one more person was already there. Thereafter, he drove the vehicle to Sri Nagar colony at the instance of accused no. 1 who pointed out towards the house no. WZ584 and the accused no. 3 noted the entire proceeding. As such, according to the prosecution, it proves that the conspiracy was hatched between the accused persons to commit the offence and in pursuance thereto, reiki of the house no. WZ584 was done one month prior to the incident. To prove the said facts, the prosecution examined PW15 who though admitted the meeting with the accused no. 1 and 3, but, turned hostile so far as reiki part is concerned.
124. To this effect, PW35 in his examination in chief deposed that during investigation, one public witness i.e. PW15 met him and gave his statement u/s 161 CrPC wherein he mentioned the fact of the reiki.
125. PW35 in his cross examination deposed that on 15.11.2012, when he visited Aman Vihar to make inquiry about the accused no. 1, he met PW15 at Aman Vihar and he recorded his statement. That time, threefour public persons were also present there, but, he did not interrogate them. He admitted that he did not know PW15 prior to that date. PW35 in crossexamination also deposed that till 09.12.2012, the accused no. 1 used to regularly join the investigation and no incriminating evidence was found against him. If that was so, PW35 failed to explain to conduct what kind of inquiry against the accused no. 1, he visited Aman Vihar on 15.11.2012. Further, according to PW35, that time PW15 and 34 more public persons Page no. 56/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place were present at Aman Vihar; he did not know PW15 prior to that date; and on 15.11.2012, family members of PW15 had not contacted him. In the given circumstances, he failed to explain as to why he picked and chose PW15 only and did not make even inquiry from 34 more persons who were present there because it is not the case of PW35 that he tried to inquire from those persons also, but, they refused to cooperate.
126. In view of the foregoing discussions, it can be held that PW15 is a planted witness. As such, the prosecution has failed to prove the incident of reiki.
IDENTIFICATION OF THE ACCUSED PERSONS
127. According to the prosecution, there was no eye witness to the incident. PW14 in his statement dated 01.11.2012 though mentioned about three boys but he neither gave their names nor any description for the purpose of their identification. Till 09.12.2012, IO had no clue whatsoever regarding involvement of the accused persons in the incident except name of the accused no.1 as suspect. As per case of the prosecution, at the first instance, the accused no. 2 was arrested on 09.12.2012 on the basis of information given by the secret informer. He made a disclosure statement wherein he named accused no. 1,3 & 4 also. Based upon the same, the accused no. 1 was also arrested on 09.12.2012. Thereafter, the accused no. 3 was arrested and lastly, the accused no. 4 was arrested.
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128. Case of the prosecution is that on 09.12.2012, the accused no. 2 was arrested on secret information.
129. According to the prosecution on 09.12.2012, IO got the secret information about the accused no. 2 and based upon the same, the accused no.2 was arrested. As discussed above, IO was completely clueless about the names and identity of the persons behind the incident. It is the own case of the prosecution that there was no eye witness to the incident and it was only PW14 who had seen those three boys but had not given any details as to their identity. As such, the secret informer had not informed the IO about the whereabouts of accused no.2 whose identity was already known to the IO but it is not a case where secret informer not only identified the accused no.2 without any detail as to his identity but also must have got some information pointing towards the involvement of the accused no.2 in the present case. However, the prosecution has completely remained silent about the said information and its source. Section 125 of the Indian Evidence Act, 1872 protects the identity of the secret informer and debars a party to put any question relating to the identity of the secret informer but not the source of information. As such, the main information linking the accused no.2 with the offence which led into his arrest on 09.12.2012 is missing in the prosecution case.
130. Regarding the identification of the accused no. 2, case of the prosecution is that on 11.12.2012, TIP of the accused no. 2 was to be conducted by PW14 but he refused to participate. However, when on Page no. 58/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place 09.02.2013, PW34 brought the accused no. 2 along with the accused no. 1 to the Rohini Court Complex, PW14 met him while passing through the gallery and identified the accused no. 2 as one of the boys to whom he had seen on the date of incident. However, PW14 in his deposition did not mention any such meeting and identification of the accused no. 2 on 09.02.2013. Further, according to PW14, the accused no. 2 was one of the boys whom he had seen on the date of incident. PW14 himself stated that once he was going to his office in his car and passed through the said house, he noticed the said three boys. It implies that PW14 would have 23 seconds only to have glimpse of those persons. But as discussed above, he had not named the accused no. 3 as one of the boys despite the fact that he was known to him very well much prior to the date of incident and his presence at that place is also doubtful. Therefore, the identification of the accused no. 2 by PW14 as one of the boys is highly suspicious in nature.
IDENTIFICATION OF THE ACCUSED NO. 1131. Admittedly, the accused no. 1 was known to PW14 and PW24 being brother in law of the deceased no. 1 and brother of the deceased no. 2. It is the own case of prosecution that the accused no. 1 was not present at the scene of crime on 30.12.2012. PW24 in his statements both dated 31.10.2012 did not mention anything about the involvement of the accused no. 1 in the said incident. On the date of incident, PW14 laid suspicion on Trilok and Suraj in presence of SHO and ACP. DW1 in his crossexamination also deposed the said fact. No suggestion to the contrary was given by the prosecution. Hence, it Page no. 59/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place can be held that IO was aware of the said fact but no investigation was done to that effect. Thereafter, PW14 in his statement dated 01.11.2012 mentioned about three boys and also stated that the accused no. 1 wanted to usurp some portion of the property no. D4 and might be behind the incident. As discussed above, PW14 hated the accused no. 1 and had the motive to name him as a suspect. PW24 in his statement dated 01.11.2012 evidently recorded after being informed by PW14 about the three boys, named the accused no. 1 as a suspect with motive to grab the property but he completely remained silent about suspicion shown by PW14 initially on Trilok and Suraj. PW15 in his statement dated 15.11.2012 also stated that one month prior to the date of incident, the reiki was done at the instance of the accused no. 1. According to the prosecution, the accused no. 1 had been joining the investigation as and when called for and was also called in the police station for investigation on 09.12.2012 and was present there. But, till that day, nothing incriminating was found incriminating against him. As such, despite being a suspect since 01.11.2012, nothing incriminating was found incriminating against the accused no. 1 till 09.12.2012. Despite all that on 09.12.2012, the accused no. 1 was arrested on the disclosure statement of the accused no. 2 but the same is inadmissible in law. So far as recovery shown the instance of the accused no. 1, as held above, does not inspire confidence of this court. Therefore, identification of the accused no. 1 as accused in the present case is doubtful.
IDENTIFICATION OF THE ACCUSED NO. 3 Page no. 60/68Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place
132. As discussed above, the accused no. 3 was well known to PW14 much prior to the date of incident. PW14 did not disclose his name as one of the boys without any justification. As such, identification of the accused no. 3 by PW14 as one of the boys is doubtful and does not inspire confidence of this court.
IDENTIFICATION OF THE ACCUSED NO. 4133. According to the prosecution, the accused no. 4 was arrested on 14.04.2013. On 18.04.2013, the accused no. 4 was brought to the scene of crime. That time, PW14 was also present there and he identified him as one of the boys. Testimony of PW14 is silent to that effect. As discussed above, the identification of accused no. 2 by PW14 is suspicious in nature. For the same reason, the identification of accused no. 4 by PW14 is also highly suspicious in nature.
REFUSAL FOR TIP
134. Accused no. 1 was well known to PW14 and PW24 being relative of both the deceased. PW14 deposed that the accused no. 3 was also well known to him much prior to the incident. So far as the accused no. 2 and 4 are concerned, as held above, their identification at the instance of PW14 is doubtful. Therefore, in the given circumstances, their refusal to go for TIP is of no consequence.
CDR DATA
135. Prosecution relied upon the testimony of PW16 to PW18 and documents proved by them to prove that phone location of the Page no. 61/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place accused 2 to 4 on 28.10.2012 was at Aman Vihar, Delhi and pleaded that it proves that on 28.10.2012, they met and conspired to commit the offence. It is evident from the record that the accused no. 3 used to enquire from PW14 about the local properties from his office at the property no. D4 Aman Vihar. According to the prosecution, the house no. 384, 40 Foota Road, Aman Vihar, Delhi belonged to the accused no. 3. It is evident from the record that the accused no. 2 & 4 were brother in laws of the accused no. 3. Therefore, their phone location in one area was not unnatural. Therefore, the said plea of the prosecution is not sufficient to link the accused no. 2 to 4 with the incident.
CHANCE PRINT
136. According to PW3, chance prints were lifted from different places of scene of crime i.e. laptop, glass and door frame. However, the prosecution has failed to link the same with the accused no. 2 to 4. According to PW35, two cups were seized from the slab of the kitchen at the scene of crime, however, no chance prints could be lifted from there. Therefore, the same are of no consequence.
NON RECOVERY OF WEAPON OF OFFENCE
137. The prosecution has failed to produce the wire or cord used for committing the offence.
Page no. 62/68Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place POINTING OUT MEMO
138. Admittedly, IO was well aware of the scene of crime. Therefore, the pointing out memos prepared at the instance of the accused persons are of no consequence.
ABSCONDING
139. Ld. Addl. PP pleaded that since the accused no. 3 & 4 remained absconded, this shows their involvement in the subject incident. In view of the foregoing discussions, it can be held that absconding of the accused no. 3 & 4 after the incident in itself is sufficient to hold that they were involved in the incident.
140. Before parting with the present case, it is inevitable to discuss the conduct of PW14 and PW24 in the present case.
CONDUCT OF PW24
141. PW24 in his first statement Ex. PW24/A had shown suspicion on some unknown persons. As held above, PW14 firstly laid the suspicion on Trilok and Suraj in the presence of PW24. No investigation was made to that effect. PW24 had also not reacted to the same. In his statement dated 01.11.2012 Ex. PW24/DX1, PW24 firstly named the accused no. 1 as a suspect with motive to grab the property and the reason assigned for that was PW14 informed him about three boys. PW24 failed to explain as to why he suspected the accused no. 1 behind the incident with motive to grab the property once according to his testimony the accused no. 1 had already vacated Page no. 63/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place the property no. D4 that too without consideration and their relations were cordial even thereafter. At the same time, PW24 remained completely silent about suspicion shown by PW14 on Trilok and Suraj. PW24 also remained completely silent about the strained relationship between his parents, the accused no.1 and PW14 for one of the reasons that the accused no. 1 along with his brother was residing in property no. D4 which was not liked by PW14. He also remained silent about the property disputes between his parents and PW14.
142. Further, PW24 made the improvements in his statement regarding the missing articles from time to time. In his statement dated 01.11.2012 Ex. PW24/DX1, he mentioned about missing of the documents of property no. WZ584 and deposed to the extent that rest of the property documents remained in his possession even on 15.11.2012. Despite that, the recovery of the documents of property no. D4 were shown at the instance of accused no. 1 which according to PW24 were never missed. Therefore, it can be inferred that PW24 played a role in handing over those property documents to the IO who thereafter, planted the same to show its recovery at the instance of the accused no.1.
143. PW24 admitted that he had not given the details of the missing jewellery to the IO and there was no specific mark on the jewellery. In the details of missing articles, the jewellary articles like silver coins and pajeb were not mentioned at all. However, as discussed above, IO has shown the recovery of the said jewellery articles which were never informed to it by PW24. Later on, IO has shown their identification Page no. 64/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place by PW24. PW24 has firstly failed to show that the same were missing and secondly, has failed to explain as how did he identify the same without specific mark. In view of the foregoing discussions, it can be held that the conduct of PW24 has been unnatural and suspicious in nature.
CONDUCT OF PW14
144. As held above, the house no. WZ584 did not come in the way of PW14 for him to reach his office from his residence and PW14 has failed to assign any reason to opt for that particular route on the date of incident. Further, PW14 firstly laid suspicion on Trilok and Suraj behind the incident and remained completely silent about involvement of any other person in the said incident for almost two days. On 01.11.2012, he, all of a sudden, made a shift in his stand and brought into picture the theory of three boys that too without any justification and also the accused no. 1 as a suspect. As discussed above, PW14 had the motive to hate both the deceased and the accused no. 1 because he did not like their relationship with the accused no. 1 and his accommodation in property no. D4. PW14 himself did not have the cordial relationship with both the deceased due to their relationship with the accused no.1 and the property no. D4. More surprisingly, the accused no. 3 was well known to PW14 much prior to the incident and if he had seen the accused no. 3 on the date of incident, then, he should have stated his name at the very beginning, but, he never mentioned the name of accused no. 3 at his own at any point of time. In view of the foregoing discussions, it can be held that Page no. 65/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place the said conduct of PW24 has been unnatural and suspicious in nature.
ROLE OF INVESTIGATING OFFICER
145. The role of the Investigating Officer is to conduct a fair investigation and place the material collected before the court to deliver justice. Now the question arises whether in the present case IO has conducted the fair investigation?
In the present case, the following facts have been noticed:
1. On the date of incident, the construction was going on at the site just opposite to the house no. WZ584 and labour was working and lanter was being laid that day. The width of the street was about 1215 feet. In the given circumstances, the labour working at that site may have given some lead to IO.
However, there is nothing on record to suggest that IO made any inquiry from the said labours.
2. On the date of incident, PW14 disclosed the name of Trilok and Suraj to the IO, but he did not conduct any investigation on that aspect.
3. According to the prosecution, on 01.11.2012 PW14 brought into picture story of three boys. IO blindly acted upon the said story and did not inquire about shift in his stand.
Page no. 66/68Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place
4. IO did not investigate about the strained relationship between PW14 and both the deceased and the accused no. 1 and reason for their disputes.
5. According to PW24, the documents of property D4 were not missing. However, IO has shown their recovery at the instance of the accused no. 1. This shows that the same were planted by the IO to implicate the accused no.1.
6. IO delayed in making efforts for recovery of the articles in pursuance to the disclosure statement of the accused no. 1 & 2 recorded on 09.12.2012 without any justification.
7. Disclosure statement of the accused no. 3 Ex. PW35/Q and disclosure statement of the accused no. 4 Ex. PW34/M are undated. IO failed to assign any reason for the same. IO has also failed to give any justification for recording their subsequent statements.
8. IO planted PW15 to bring into picture the theory of REIKI.
9. IO has shown the recovery of silver coins and pajebs once PW24 himself did not mention about missing of the same.
146. In view of the foregoing discussions it can be held that it is not Page no. 67/68 Judgment State Vs Pawan Jindal Etc FIR no. 422/12 PS Subhash Place a case of lacuna in the investigation on certain aspects. Rather, it is a case where there is no investigation on certain material aspects. Further, IO in his effort to make the full proof case, created the evidence. Hence, it can be held that IO has not conducted the fair investigation and lacked in discharging his official duty fairly. Therefore, in my opinion, it is a fit case to take departmental action against the Investigating Officer, Shri Pankaj Malik, SHO, PS Subhash Place. Hence, the Commissioner of Police, Delhi is directed to take the Departmental Action against Shri Pankaj Malik, SHO, PS Subhash Place, Investigating Officer of this case, as per law.
147. In view of the foregoing discussions, I am of the opinion that prosecution has failed to prove the charge levelled against all the accused persons beyond reasonable doubt.
148. Accordingly, all the accused persons are acquitted for the offences they charged with. Bail bonds furnished by all the accused for a sum of Rs. 25,000/ each with surety of like amount are accepted and shall remain in force for further period of 6 months in terms of section 437(A) CrPC.
149. Copy of this judgment be sent to Commissioner of Police, Delhi for information and departmental action against Inspector Shri. Pankaj Malik SHO Police Station Subhash Place as directed.
File be consigned to Record Room.
Announced in the open court on this 21st day of November, 2015. (Pankaj Gupta) ASJII, NorthWest Rohini: Delhi Page no. 68/68