Delhi District Court
State vs Satguru Dass Maheshwari Etc (3) on 3 February, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE (FTC)-02,
SOUTH DISTRICT, SAKET COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-000085-2009
SC NO. 16/15
STATE V. SATGURU DASS MAHESHWARI AND ORS
FIR NO. 134/09
PS: MEHRAULI
U/S: 364/364A/302/201/120B/411/34 IPC
AND U/S 25/27/54/59 OF THE ARMS ACT
State
Versus
1. Satguru Das Maheshwari (Proclaimed Offender)
s/o Bimal Das Maheshwari,
r/o NW-41, Swami Bagh, Agra,
Uttar Pradesh.
2. Gurudarshan @ Darshu,
s/o Sh. Sant Das,
r/o 4/200, Vidyut Nagar,
Dayal Bagh, Agra,
Uttar Pradesh.
3. Lokesh Gupta,
s/o Sh. Subhash Gupta,
r/o 2/11, Swadeshi Bima Nagar,
Agra, Uttar Pradesh. ... Accused persons
DATE OF INSTITUTION : 20.06.2009
DATE OF RESERVING OF JUDGMENT : 15.01.2024
DATE OF JUDGMENT/ ORDER : 03.02.2024
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons namely Satguru Dass Maheshwari, Gurudarshan @ Darshu and Lokesh Gupta pursuant to charge sheet filed by Police Station Mehrauli U/s 364/364A/302/201/120B/411/34 Indian Penal Code (hereinafter FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 1 of 60 referred to as IPC) and u/s 25/27/54/59 of The Arms Act, 1959 subsequent to the investigation carried out by them in FIR No. 134/09.
2. Brief facts of the case are that a missing report qua Dharmender s/o Sh. Lok Nath was lodged at PS Mehrauli by Smt. Anju Arora w/o Sh. Dharmender Arora on 20.03.2009. As per the missing report, Smt. Anju Arora reported that her husband Dharmender Arora on 19.03.2009 at about 10.30 AM left for his work on his Honda Civic car bearing no. DL-7CF-4064. As per the complaint, deceased Dharmender Arora told his wife/complainant Smt. Anju Arora that he had to meet someone in Dera Mandi. The mobile phone of the deceased went switched off at 12.00 noon when his wife called him. He did not return back to his home till 20.03.2009. During inquiry on the said missing report, family members of deceased came to know that the above mentioned car of deceased Dharmender Arora was parked in the farm house number A-5, Asola, Fatehpur Beri, Delhi that belongs to Yograj Arora, cousin brother of deceased Dharmender Arora. On inquiry, from Raj Pal, Guard at the said farm house, it came to know that the car was parked by deceased Dharmender Arora himself on 19.03.2009 at around 11.00 AM and after parking the car, deceased went with three other persons in a blue colour car and while leaving he informed the guard that he will come back after sometime but he did not turn up. Accordingly, present FIR no.
134/09 was registered u/s 365 IPC.
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3. During the course of investigation, police officials collected the call detail records of mobile no. 9899123455 used by deceased and zero-in their suspects that are the accused persons in this case who were in contact with each other and the call detail records of the deceased revealed that he was in contact with the accused Satguru Dass Maheshwari (since PO) immediately prior to his phone got switched off on 19.03.2009. In the meantime, family members of deceased also made efforts at their own to trace out the whereabouts of deceased Dharmender Arora and they came to know about the recovery of dead body with similar description of Dharmender Arora in the area of Jhansi on 21.03.2009. Dead body of the deceased was recovered by the police of PS Badagaon, Jhansi, UP on the morning of 21.03.2009 from the fields of village Takori. A gun shot wound was found on the chest of the deceased and the body was identified by the relatives of the deceased.
4. During the investigation, accused persons were arrested, they were interrogated by the police and their disclosure statements were recorded. As per the story of prosecution, accused Satguru Das Maheshwari (since PO) under the pretext of having business deal of sale and purchase of a farm house fixed a meeting with victim on 19.03.2009 and thereafter abducted the victim in pursuance to the criminal conspiracy entered with the co accused persons namely Gurudarshan @ Darshu and Lokesh Gupta and took the deceased to Agra on 19.03.2009 after injecting him with sedatives. Thereafter, the accused persons asked the deceased to make a ransom call to his family members to which the victim did not accede and on 20.03.2009 they took him to the area of Dist. Jhansi and accused Satguru Dass Maheshwari (since PO) shot him FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 3 of 60 dead and the accused persons threw his body in the open fields. During the investigation, articles belonging to the deceased were recovered from the possession of the accused persons along with the weapon of offence and other arms and ammunitions. Forensic reports were obtained and statement of the witnesses were recorded by the IO. After the conclusion of the investigation carried out in the FIR no. 134/09, police filed the charge sheet against the accused persons namely Satguru Das Maheshwari, Gurudarshan @ Darshu and Lokesh Gupta for commission of offences U/s 364 / 364A /302 /201 /120B /411 IPC and u/s 25/27/54/59 of The Arms Act.
5. Vide Order dated 20.06.2009, Ld. Metropolitan Magistrate concerned took cognizance of the offences and accused persons were called upon to face the trial. Accordingly, they were supplied with the charge sheet and other relevant documents in compliance to section 207 Code of Criminal Procedure (hereinafter referred as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 14.09.2009.
CHARGE
6. Vide order dated 24.05.2012, charge for the offences punishable u/s 120B/364/302/201 IPC was framed by the Ld. Predecessor of this Court against the accused persons namely Satguru Dass Maheshwari, Gurudarshan @ Darshu and Lokesh Gupta who pleaded not guilty and claimed trial.
FIR no. 134/09State v. Satguru Dass Maheshwari and others Page no. 4 of 60 Separate charges for the commission of offences punishable u/s 411 IPC and u/s 25/27 of The Arms Act were framed against the accused Satguru Dass Maheshwari, Gurudarshan @ Darshu and Lokesh Gupta to which also they pleaded not guilty and claimed trial.
7. During the trial, accused Satguru Das Maheshwari absconded and stopped appearing before the court following which he was declared proclaimed offender vide order dated 08.04.2015.
MATERIAL EVIDENCE IN BRIEF:
8. Prosecution has examined 50 (fifty) prosecution witnesses (hereinafter referred to as PW) in total in order to prove its case. The testimony of prosecution witnesses in brief are discussed as follows:-
9. PW-1 Dr. Balbeer Krishna Gupta proved and exhibited on record the postmortem report bearing no. 211/09 as Ex. PW1/A. This witness correctly identified the case property that is the valuables worn on the body of the deceased as exhibited as Ex. PW1/P-1 to Ex. PW1/P10. As per this witness, the death happened about 18 hours before the post mortem and the cause of death is due to shock caused by ante-mortem external and internal injuries. PW1 was cross examined on behalf of accused.
10. PW2 Ms. Anju Arora, complainant, deposed that on 19.03.2009, her husband (deceased Dharmender Arora) was busy FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 5 of 60 on telephone since morning and on asking he said he had to go to Dera Mandi to meet somebody. PW2 further deposed that deceased Dharmender Arora left the house at about 10.30 AM and at 11.00 AM when she called him, he told that he had reached Chattarpur Farm. However, at about 12.00 noon when she again tried calling him, the phone of the deceased was found switched off. It is further deposed that in the morning when the deceased was at home and was talking on phone, PW2 over heard the name Satguru and when PW2 found his mobile phone off at 12.00 noon PW2 thought that deceased might be attending some satsang of Satguru Jaggi Vasudev, whose satsang he had attended earlier as well. PW2 further deposed that she did not receive any call from deceased through the day and after continuous search no clue about him could be gathered. On 20.03.2009 at about 08.55/09.00 AM, she called police at 100 number and after sometime at about 10.30 AM, she went to Mehrauli police station along with Harish Arora and Yog Raj Arora and gave a handwritten complaint exhibited as Ex. PW2/A.
11. PW2 further deposed that while they were at police station, Yog Raj Arora came to know through telephone that the car bearing no. DL-7CF-4064 make Honda Civic of Gel Grey colour belonging to her husband was in his farm house A-5, Asola. PW2 along with police personnel went to the farm house where the car of deceased/husband was found, but deceased/husband was not found there. PW2 further deposed that the police inspected the vehicle and in the evening, one SI Govind Chauhan came to the house of PW2 and she gave a detailed statement qua wearing apparels of deceased, his business and phone call on which PW2 FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 6 of 60 heard the name of Satguru, pukhraj ring, gold chain, RADO watch, mobile phone no. 9899123455 make Nokia E-65, Honda Civic car etc of deceased. PW2 gave photographs of her husband (deceased) which was seized vide seizure memo Ex. PW2/B and the photograph is marked as Mark PW2/P-1. PW2 further deposed that police got the call detail record of the mobile phone of deceased and it was found that with whom he had talked in the morning of 19.03.2009 was accused Satguru Das Maheshwari who lives in Freedom Fighters Enclave/Colony. PW2 further deposed that on 22.03.2009, she came to know about the death of her husband. PW2 further deposed that on 20.04.2009, she was called for TIP of the belongings of her husband (deceased) at Patiala House Courts and she identified the pukhraj of the ring but the ring was not of her husband, his gold chain and his RADO watch. PW2 identified the RADO watch (Ex. PW2/P-2), gold chain (Ex. PW2/P-3) and pukhraj fixed in gold ring (Ex.PW2/P-4). PW2 did not identify the gold ring. PW2 was cross examined on behalf of accused.
12. PW4 Sh. Harish Arora, brother of deceased deposed on the same lines as that of PW2 Ms. Anju Arora. Apart from that, PW4 deposed that on 21.03.2009, in the evening an information was received that accused Lokesh Gupta and Satguru Dass Maheshwari (since PO) were traced in Agra through mobile phones. PW4 along with Yograj Arora accompanied the police to Agra but they could not be found at their houses. PW4 further deposed that on the way back, Yograj Arora received information regarding dead body being found at bada gaon, Jhansi. PW4 further deposed that on the same night he along with Yograj Arora went to Jhansi with police and found the dead body of deceased FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 7 of 60 Dharmender Arora at Civil Hospital, Jhansi where local police was present at the mortuary. PW4 took the dead body after identification and reached back Delhi on the night of 22.03.2009. PW4 further deposed that after cremation on 23.03.2009, they came to know that accused persons have been arrested by the police for commission of murder of his deceased brother Dharmender for ransom. PW4 was cross examined on behalf of accused persons.
13. PW5 Sh. Pawan Singh, Nodal Officer from Idea Cellular Ltd., proved and exhibited on record the documents pertaining to mobile number 9990823183 belonging to accused Satguru Dass Maheshwari S/o Sh. Vimal Das, the CAF is Ex. PW5/A, customer ID proof i.e. photocopies of ration card, PAN card, Voter I/D and D/L which were duly signed and same are Mark PW5/A-1 to PW5/A-4, customer address declaration form as Ex PW5/B, migration form for pre paid connection to post paid connection as Ex PW5/C, copy of Lease-Agreement as Mark PW5/D and copy of receipt of payment as Ex PW5/E, certified call detail record for the period 01.01.2009 to 22.03.2009 ( running into 80 pages) as Ex PW5/F-1 to F-80, the certificate u/s 65B of Indian Evidence Act as Ex PW5/G, certified cell ID chart (running into 48 pages) as Ex PW5/H-1 to H-48. PW5 was cross examined on behalf of accused.
14. PW6 Sh. Raj Pal Singh was the last seen witness who deposed that on 19.3.2009 he was on duty at A5 Asola Farm as security guard. PW6 further deposed that at about 11:00 AM, Dharmender Arora (deceased) came to the farm house in his Honda FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 8 of 60 Civic Car and parked the same in the farm house. After about 5-10 minutes, another car of blue colour came at farmhouse and stopped outside the farm and three persons came out of the blue car, went in the farm house and talked with Dharmender Arora. PW6 further deposed that after some time Dharmender Arora (since deceased) told him that he is going with those persons and will come back after some time to take his car. Thereafter, Dharmender Arora went alongwith those three persons in their blue colour car but did not came back. PW6 further deposed that on 20.03.2009 at 9.30-10AM, he received a call from Yog Raj who enquired about Dharmender Arora from him, PW6 informed about the visit of Dharmender Arora on 19.3.2009 and upon further enquiry he also gave description of those three persons, one of them was a tall man of dark complextion, the other was a lean man of wheatish complexion having a cut on his right cheek and third was a well built tall man of wheatish complexion. PW6 further deposed that police came at the farmhouse and inquired from him and recorded his statement on 20.03.2009 and on 25.03.2009 police brought three persons and he identified them as the same persons with whom Dharmender Arora went on 19.03.2009. This witness correctly identified the accused persons before the court during trial. PW6 was cross examined on behalf of accused.
15. PW9 Ms. Vanisha Talwar deposed and exhibited on record the cash memo bearing no. 6660 dated 27.07.2002 in the name of customer Dharmender Arora regarding the purchase of gold jewellery i.e. one gold chain of 17.98 gms and a gold ring of 5.43 gms without stone as Ex PW9/A. As this witness did not support the case of the prosecution in its entirety, she was cross FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 9 of 60 examined by Ld. Additional PP for the state with the permission of the court. PW9 was also cross examined on behalf of accused.
16. PW11 Sh. Yograj Arora, cousin brother of deceased deposed more or less on the same lines as that of PW4 Harish Arora and PW2 Smt. Anju Arora. In addition to the same, PW11 exhibited on record the seizure memo of mobile make Nodia E65 as Ex PW11/A, the original bill marked as Mark PW11/B, documents i.e. cash memo of purchase of jewellery, two old photographs in which deceased Dharmender Arora with his wife Anju Arora were sitting in front of Taj Mahal and watch make Rado worn by him can be seen, that deceased attending function of his son in which gold ring with Pukhraj stone are clearly seen, investigation report dated 7.8.2007 of Modi Hospital showing his blood group as B+, copy of documents issued by cremation ground of 23.03.2009 were also seized vide production cum seizure memo Ex PW11/C, investigation report as Mark PW11/D1 to D3 (running into 3 pages), documents of cremation ground as Mark PW11/E1 to E3, negative of the photos seized by the police are Mark PW11/F3 and F4, police also seized two photos of dead body taken by him from his personal camera and photocopy of RC and other documents of which no. DL7CF4064 Honda Civic were seized vide production cum seizure memo Ex. PW11/G, photographs of dead body are Mark PW11/H1 to H2 and photocopy of RC of Honda Civic car is Mark PW11/J. PW11 was cross examined on behalf of accused.
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17. PW12 Sh. Anurag Bareja deposed that he brought a Rado wrist watch from Singapore in 1994 and after using it for a month, PW12 gifted the same to Dharmender Arora as he liked it. This witness correctly identified the watch exhibited as Ex PW2/P-
2. PW12 was cross examined on behalf of accused persons.
18. PW13 Sh. M.N.Vijayan, Nodal officer of Tata Teleservices Ltd., proved and exhibited on record the documents pertaining to mobile no. 9219510413 and 9219658530. As per the record, the mobile no. 9219510413 was issued in the name of Manmohan s/o Sh. Rukam Pal. CAF along with supporting documents in respect of the same are exhibited as Ex. PW13/B (Colly). The submission letter to Insp. Crime Branch is Ex PW13/A. PW13 further deposed that as per the record, the mobile no. 9219658530 was subscribed in the name of accused Lokesh Gupta S/o Subhash Chand Gupta R/o 2/11 Swadeshi Bima Nagar, Agra. The CAF alongwith supporting documents with respect to same are Ex PW13/C (colly). PW13 was cross examined on behalf of accused.
19. PW14 Sh. Mukul Gupta, Alternate Nodal Officer of TATA Teleservices Ltd., proved and exhibited on record CDRs of mobile no. 9219510413 issued in the name of Manmohan Singh pertaining to period from 01.01.2009 to 25.03.2009 and CDRs of 9219658530 issued in the name of accused Lokesh Gupta from 01.01.2009 to 27.03.2009 as Ex. PW14/P1-P13 and Ex. PW14/P14 to P35 respectively. The letters exchanged with the investigating officer are exhibited as Ex. PW14/A. PW14 was cross examined on FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 11 of 60 behalf of accused.
20. PW15 Inspector Govind Chauhan deposed that on 20.03.2009 at 8.55 AM a PCR call vide DD No.7A Ex PW15/A regarding missing of Dharmender S/o Sh. Lok Nath since 19.3.2009 was received that was marked to HC Kailash for inquiry/investigation. On the same day, after a while Smt. Anju Arora W/o Sh. Dharmender Arora came in PS along with her relatives and given a written complaint already Ex. PW2/A. It is further deposed by PW15 that during the inquiry it had come to the notice that car of Dharmender Arora is parked in the farmhouse no. A5, Asola. PW15 further deposed that he alongwith relative of Anju Arora reached at the farm house and met guard Rajpal who told about the visit of Dharmender Arora a day before as stated in his testimony. PW 15 further deposed that crime team was called and the car was got inspected. PW15 further deposed that on the directions of SHO an FIR u/s 365 IPC was registered on the same date i.e. 20.03.2009. This witness exhibited on record the endorsement made by him on the complaint as Ex PW15/B. PW15 further deposed that the investigation was marked to him and during the investigation he recorded the statements of the witnesses and seized the photographs produced by the wife of the deceased. PW15 further deposed that after analysis of call detail record of mobile phone of Dharmender Arora, three mobile numbers were suspected but no arrest was made by him. PW15 was cross examined on behalf of accused.
21. PW16 HC Rajbir Singh was part of the police team led by the IO Insp. Ved Prakash that visited Agra on 24.03.2009. PW16 FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 12 of 60 deposed that from the house of accused Satguru, Ford Icon car, a wrist watch and a gold ring were recovered at the instance of accused Satguru, same were seized by IO and handed over to him for depositing in malkhana of PS Crime Branch. PW16 further deposed that IO along with other staff and accused Satguru Dass Maheshwari went to Jhansi for further investigation and he brought the car bearing no. UP80AJ1646 to Delhi and deposited the same in malkhana on the same night. PW16 further deposed that on 14.05.2009, he collected two paper envelopes containing the exhibits and vide RC no. 134/21/19, he alongwith IO went to FSL Rohini and deposited the same. This witness correctly identified the Ford Icon car. Same is exhibited as Ex PW16/P-1. This witness identified the accused Satguru Dass before the court during trial. PW16 was cross examined on behalf of accused.
22. PW19 Manish Kumar Sharma, exhibited on record his reply to the notice u/s 91 Cr.P.C. given by the police to him seeking details of purchase of Nokia E-65 as Ex. PW19/A. This witness also relied upon the invoice no. 121101989 pertaining to mobile already exhibited as Ex. PW11/B. PW19 was cross examined on behalf of accused.
23. PW21 Mrs. Sosmma John, Sr. Technician, Saket City Hospital exhibited on record her report pertaining to the blood group of Dharmender Arora. Same is exhibited as Ex PW21/A. PW21 was cross examined on behalf of accused.
24. PW23 Swami Dayal Sehgal was the owner of jewellery shop in the name of 'Lala Preetam Dass Jewellers' at 14 Heera FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 13 of 60 Market, Dayal Bagh Road, Agra. PW23 deposed that on 21.03.2009, accused Satguru Dass Maheshwari (since PO) being his old customer gave him an old gold ring and pukhraj stone separately and one panna stone for making a new gold ring using pukhraj. On 24.03.2009, Insp. Ved Prakash came to his shop and inquired about the ring. PW23 further deposed that he told him that the ring with Pukhraj is ready and Insp. Ved Prakash took the ring from him. PW23 accompanied Insp. Ved Prakash to the house of accused Satguru Dass and the ring was sealed at his house in a dibbi. This witness identified the accused Satguru Dass (since PO) before the court during trial. This witness also exhibited on record the seizure memo pertaining to gold ring as Ex.PW23/A. The rough bills are Ex.PW23/B-1 and Ex. PW23/B-2. As this witness did not support the case of the prosecution, he was cross examined by Ld. Additional PP for the state. PW23 was cross examined on behalf of accused.
25. PW24 Sh. Ajeet Kumar, Nodal Officer, Reliance communication, Barakhamba Road, Cannought Place, exhibited on record the documents pertaining to mobile no. 9350781817 along with call details records with Cell ID Chart, w.e.f. 01.01.2009 to 22.03.2009 issued in the name of Satguru Dass s/o Vimal Dass r/o Flat no. GF-1, Kailash Tower, B Block, IGNOU, Saidulajab, New Delhi as Ex. PW24/A and the CAF along with ID proof is Ex. PW24/B. The certified call details record for the period from 01.01.2009 to 22.03.2009 along with its cell ID is Ex. PW24/C (Colly). The certificate u/s 65B of Indian Evidence Act is Ex. PW24/D. PW24 was cross examined on behalf of accused.
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26. PW26 Sh. Maharaj Singh, Pradhan Sahayak, Regional Transport Office, Agra exhibited certified copy of record pertaining to Ford Icon car bearing registration no. UP80AJ1646, chassis number MAJAXXMRTA4DA0023, Engine no. 4 DA0023 registered in the name of accused Satguru Dass Maheshwari as Ex. PW26/A (Colly). PW26 was cross examined on behalf of accused.
27. PW27 Sh. Vijay Kakkar, Manager, Punjab and Sind Bank exhibited on record voucher dated 21.03.2009 by which two demand drafts no. 57572 and 57573 amounting to Rs. 4,550/- each were purchased by Sudeepa D. Maheshwari in favour of Gyan Bharti School, Saket and same is Ex. PW27/A. The original bank drafts are Ex. PW27/B and Ex. PW27/C. PW27 was cross examined on behalf of accused.
28. PW28 Sh. Israr Babu, Alternate Nodal officer, Vodafone mobile services, exhibited on record certified copy of customer application form qua mobile no. 9899123455 which was issued in the name of Sh. Dharmender Arora (since deceased) as Ex. PW28/A, copy of ID proof i.e. driving license is marked as Mark PW28/X, certified copy of the CDR of the said mobile number for the period from 01.01.2009 to 22.03.2009 are Ex. PW28/B (Colly). The certificate u/s 65B of Indian Evidence Act is Ex. PW28/C, certified copy of cell ID chart of vodafone for Delhi and NCR is Ex. PW28/D (Colly). PW28 was not cross examined on behalf of accused.
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29. PW29 SI Jai Kishan deposed qua the manner and his involvement in the investigation and collected documents from the authorities at Agra, UP on 08.06.2009 i.e. Hospital, office of District Magistrate (Arm Division Agra), Regional Transport Authority and handed over the said documents to IO Insp. Ved Prakash on 09.06.2009. PW29 was cross examined on behalf of accused.
30. PW30 Sh. Pratap Somvanshi, Editor of "Amar Ujala"
Newspaper proved and exhibited on record the news pertaining to dead body of one unknown person lying in the field as Ex. PW30/A. PW33 Sh. Jai Kishan Sharma, Editor of Swadesh newspaper proved and exhibited on record the news article pertaining to dead body of unknown person as Ex. PW33/A. PW36 Sh. Yashovardhan Gupta, Editor and Designated Partner of Daily Jagaran proved and exhibited on record the news article published in Dainik Jagran for Jhansi pertained to dead body of an unknown person which was lying unidentified in the field of village Takori within the jurisdiction of PS Baragaon. Same is exhibited as Ex. PW36/A. PW30, 33 and 36 were cross examined on behalf of accused.
31. PW31 Sh. Rajeev and PW35 Sh. Kehar Singh were the persons who saw the dead body lying in the field of Kishore and informed the village Pradhan Parshuram who inturn informed police station Bada Gaon, Jhansi UP. These witnesses signed the Panchnama prepared by the police exhibited as Ex. PW31/A and also correctly identified the dead body in the photograph marked as Mark PW31/P-1. Both the said witnesses were cross examined on FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 16 of 60 behalf of accused.
32. PW32 Sh. Inderjeet Malhotra was the independent public witness who deposed that he was the resident of same vicinity where accused Satguru Dass (since PO) was residing. PW32 deposed that when he came to know that police has arrested him and brought him at his house, PW32 also came there and stayed for about 15 minutes. PW32 further deposed that police obtained his signatures on a paper stating to be a formality. This witness identified the accused Satguru Dass before the court. This witness stated that nothing was recovered in his presence. As this witness did not support the case of the prosecution he was cross examined by Ld. Additional PP for the state. PW32 was cross examined on behalf of accused and during his cross examination this witness admitted his signatures on the documents Ex. PW32/B to Ex. PW32/E.
33. PW37 Sh. Satish Yadav was the Ambulance driver of the vehicle bearing no. UP93T1119 who brought the dead body from Mortuary, Dist. Hospital Jhansi to Delhi. This witness also identified the dead body from the photograph Ex. PW31/P-1. PW37 was not cross examined on behalf of accused.
34. PW38 Insp. Satya Deo Singh was the police official who conducted the inquest proceedings upon recovery of the dead body of unknown person. As per this witness, on 21.03.2009 at about 08.30 AM, he received a call from SI Babu Ram from PS Badagon that an unidentified dead body of a male is lying at road FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 17 of 60 side at the farm of Kishore Kabootra, Village/Mauja, Takuri. PW38 reached at the spot and called a private cameraman namely Asha Ram Kushwaha who took the photographs. PW38 further deposed that the dead body could not be identified by the villagers and the same was wearing white shirt, black pant having belt and shoes without laces and there was blood stains on the left side chest of the deceased and the shirt was blood stained. From the search of the dead body, one handkerchief and cash of Rs. 250/- were recovered. The panchnama of the dead body was conducted by SI Babu Ram, in the presence of villagers. SI Babu Ram also prepared seizure memo of the recovered currency notes and handkerchief etc. After completion of panchnama, the dead body was packed and sealed and sent to mortuary of Rani Laxmi Bai Medical college, Jhansi through Ct. Kripal Singh and one home guard namely Rajesh. PW38 further deposed that the articles on the body of the deceased were seized. Postmortem of the dead body was got conducted on 21.03.2009. PW38 further deposed that on 22.03.2009, elder brother of deceased came in the mortuary and the dead body was handed over to him vide memo Ex. PW38/A. PW38 further deposed that on 23.03.2009, the articles recovered from the body of deceased, one led of bullet recovered from the body of deceased during the postmortem and the documents prepared including post mortem report along with the report of PW38 were handed over to to Insp. Ved Prakash vide report Ex. PW38/B and the carbon copy of the same is exhibited as Ex. PW38/C. This witness also identified dead body on the photograph already marked as Mark PW31/P-1. PW38 further identified the case property already exhibited as Ex. PW1/P-1 to Ex. PW1/P-9, PW38/P1, PW38/P2 respectively. PW38 was cross examined on FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 18 of 60 behalf of accused.
35. PW-39 Asha Ram Kushwaha was the photographer who took photographs of the dead body. This witness identified the photographs already marked as Mark PW31/P-1. PW39 was cross examined on behalf of accused.
36. PW41 HC Raja Ram deposed qua his role and manner in the investigation. PW41 deposed that on 21.03.2009 he along with Insp. Ved Prakash, SI Devender, HC Bachu Singh, Ct. Manoj and Ct. Ajay, went to Agra in search of one missing person, namely Dharmender Arora, along with two relatives of Dharmender Arora. PW-41 deposed that two suspected persons i.e. accused Satguru Dass Maheshwari (since PO) and Lokesh Gupta were not found in their respective houses. PW-41 further deposed that an information of one unclaimed dead body was received by the family members of the Dharmender Arora at Jhansi, the team went to Jhansi and reached there at 04:00 AM. PW-41 further deposed that the police officials from PS Bada Gaon took them to Government Medical College Jhansi, however the mortury was closed so they could not see the dead body. PW41 further deposed that IO received information that suspects are roaming in Delhi. Thereafter, PW-41 along with IO, leaving Ct. Ajay and family members of Dharmender Arora at the mortuary, left for Delhi.
37. PW-41 further deposed that when they reached at Freedom Fighters Colony, Delhi at about 1.30 PM, SI Devender, SI Virender along with other staff met them. At about 03.00 PM, FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 19 of 60 accused Satguru Dass Maheshwari (since PO) came at Gate no.1 of Freedom Fighters Colony and he was apprehended and from his search, one automatic pistol alongwith four live cartridges were recovered. IO prepared the sketch of the said pistol as well as the recovered cartridges and the same is Ex. PW41/A and the same was seized vide seizure memo Ex. PW41/B. PW-41 further deposed that accused Satguru Maheshwari (since PO) was arrested and his personal search was conducted vide memo Ex. PW41/C. PW-41 further deposed that at the instance of accused Satguru Dass Maheshwari (Since PO), accused persons namely Gurudarshan @ Darshu and Lokesh Gupta were apprehended from Barapulla, near Hazrat Nizamuddin Railway Station. From the search of Lokesh Gupta, one automatic Pistol along with four live cartridges and one Nokia mobile phone E-65 of Grey-White color was recovered along with SIM card. IO prepared the sketch of the recovered pistol and the live cartridges as Ex.PW41/D and seized by seizure memo Ex.PW41/E. The mobile was seized vide seizure memo Ex.PW41/F. PW41 further deposed that from the possession of accused Gurudarshan @ Darshu, one desi katta along with one live cartridge was recovered from the left dub of his wearing pant and one another live cartridge was also recovered from the right pocket of his wearing pant. The sketch is Ex. PW41/G. Same was seized vide seizure memo Ex.PW41/H. It is further deposed that from his search, one gold chain was recovered. The IO seized the same after keeping the same in a plastic container. Same was seized vide seizure memo Ex. PW41/I.
38. PW41 further deposed that accused persons namely Gurudarshan @ Darshu and Lokesh Gupta were arrested by the FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 20 of 60 IO. Accused Gurudarshan was personally searched vide memo Ex. PW41/K and accused Lokesh Gupta was searched vide memo Ex. PW41/J. It is stated that at the time of search of accused Satguru Dass (since PO), three currency notes of Rs. 1,000/- each were recovered from his possession and the same were also seized by the IO vide seizure memo Ex. PW41/L. PW41 further deposed that he along with IO went to PS Badagaon, Jhansi on 24.03.2009 and IO also seized exhibits of deceased Dharmender Arora and on 25.03.2009 PW41 returned back from PS Badagaon and deposited the exhibits/belongings of deceased at PS Crime Branch, Nehru Place. This witness identified all accused persons before the court at the time of deposition. This witness also identified the case property i.e. pistol along with cartridges which were recovered from the possession of accused Lokesh Gupta exhibited as Ex. PW41/P-1 (pistol) and Ex. PW41/P-2 (Colly)(cartridges). PW-41 identified the case property i.e. pistol along with cartridges which were recovered from the possession of accused Satguru Dass Maheshwari (since PO) exhibited as Ex. PW41/P-3 (pistol) and Ex. PW41/P-4 (Colly)(cartridges). PW-41 identified the case property i.e. pistol along with cartridges which were recovered from possession of accused Gurudarshan @ Darshu exhibited as Ex. PW41/P-5 (country made pistol) and Ex. PW41/P-6 (Colly)(the live cartridge and test fired cartridge). PW41 further identified the mobile phone which was recovered from the possession of accused Lokesh Gupta exhibited as Ex. PW41/P-7 (Colly). PW41 further identified the gold chain which was recovered from the possession of accused Gurudarshan @ Darshu, exhibited as Ex. PW2/P-3. PW41 further identified the currency notes of Rs. 1,000/- each which were recovered from the possession of accused Satguru Dass FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 21 of 60 Maheshwari (Since PO). The said currency notes are Ex. PW41/P-8 (Colly). PW41 was cross examined on behalf of accused.
39. PW42 Sh. V. Sankaranarayanan, Senior Scientific Officer, FSL proved and exhibited on record his forensic report as Ex. PW42/A and the serological report as Ex. PW42/B. PW42 was cross examined on behalf of accused.
40. PW43 SI Babu Ram deposed more or less on the same lines as that of PW38 Insp. Satya Deo Singh. Apart from that PW43 exhibited on record GD no. 14 as Ex. PW43/A. He further exhibited on record cash of Rs. 250/-, one handkerchief, and one pair of shoe recovered from the possession of the dead body. Same were seized vide seizure memo Ex. PW43/X. PW43 also made a request report to CMO, Jhansi, for the purpose of conducting the postmortem of the deceased and the same is Ex. PW43/B and the information sent in this respect to Reserve Inspector, Police Line, Jhansi is Ex. PW43/C. PW43 identifies the dead body in the photograph Ex. PW31/P-1. PW44 Ct. Kirpal Singh deposed on the same lines as that of PW43 SI Babu Ram. PW43 and PW44 were cross examined on behalf of accused.
41. PW46 SI Ashok Kumar Singh, SI Agra, deposed qua his limited role in the investigation. As per this witness he joined Delhi Police officials on 23.03.2009 who came to Agra accompanied by three accused persons. As per this witness accused Satguru Das Maheshwari (since PO) lead the team to his house and got recovered one Rado wrist watch belonging to the deceased FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 22 of 60 from the room built on first floor, Ford Icon car of blue colour, two demand drafts issued by Punjab and Sind Bank, one gold ring and kactha bill from the jeweller seized by the IO. This witness identified the case property already exhibited by PW27 and PW32. This witness exhibited the photographs Ex. PW46/X1 to X5. PW46 was cross examined on behalf of accused.
42. PW48 Insp. Virender Singh deposed qua the manner and his involvement in the present matter. This witness deposed more or less on the same lines as that of PW41 HC Raja Ram. This witness relied upon the documents already exhibited on record by PW-23, PW27 and PW32. PW48 exhibited on record arrest memo of accused Satguru Dass (since PO) as Ex.PW48/A, his disclosure statement as Ex. PW48/B, disclosure statement of accused Lokesh Gupta as Ex. PW48/C, disclosure statement and arrest memo of accused Gurudarshan @ Darshu as Ex. PW48/D and Ex. PW48/E respectively. This witness further exhibited on record supplementary disclosure statement of accused Satguru (since PO) as Ex. PW48/F. PW-48 further deposed that at the instance of accused Satguru (since PO) who took police party to Bandook Ghar, City Station road, Agra where he pointed out the shop from where he purchased cartridges using license of one Vishal Singh. The pointing out memo is Ex. PW48/G, the order placed was seized as Ex.PW-48/H and sale receipt was seized as Ex. PW48/I and daily sale register as Ex. PW48/J. This witness also exhibited on record the pointing out memo where accused persons shot Dharmender Arora dead as Ex.PW48/K. FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 23 of 60
43. PW48 further deposed that on 25.03.2009 accused persons further joined the investigation and accused Satguru (since PO) took police party to his residential accommodation from where he got recovered two armed license both in his name and two mobile bill of Idea Cellular company. The same were seized vide memo Ex.PW48/N. The armed licenses are Ex. PW48/O and Ex.PW48/P and the phone bills are Ex. PW48/Q (Colly). Thereafter, accused persons took the police party to A-5, Asola Farms, Fatehpur Beri and pointed out the place that they got seated deceased Dharmender in Ford car mentioned above and deceased left his car there. The pointing out memo to this effect is Ex. PW48/R. PW48 further deposed that accused persons took the police party to Farm house no. 8, beech road, Dera Gaon, Delhi where accused Gurudarshan @ Darshu had pointed out the deceased Dharmender had shown this farm house for selling out the same and pointing out memo was prepared to this effect which is Ex. PW48/S. Then accused persons took the police party to MP Farm House no. 173, Village Dera Gaon and told that after kidnapping Dharmender Arora accused persons took him to farm house and injected him with sedative substance. IO prepared the pointing out memo to this effect which is Ex. PW48/T. PW48 further deposed that on 03.04.2009, the arm license was seized vide seizure memo Ex. PW48/U and the license is Ex.PW48/V. This witness also exhibited on record beading of rear left seat window stained with blood produced by FSL team vide seizure memo Ex.PW-48/W. This witness relied upon the case property already exhibited on record by PW-2 and PW-41. This witness also prepared seizure memo regarding the inquest papers and PM papers and belongings of deceased Dharmender Arora as Ex. PW48/X. FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 24 of 60 This witness also relied upon seizure memo of Rs. 3,000/- already exhibited on record Ex. PW41/L. This witness identified the accused before the court during trial. PW48 was cross examined on behalf of accused.
44. PW49 Inspector Ved Prakash deposed qua the manner and his involvement in the present case being Investigating Officer
12. PW49 deposed more or less on the same lines as that of PW41 HC Raja Ram and PW48 Insp. Virender Singh and relied upon the documents already exhibited on record by them. Apart from that, PW49 exhibited on record the newspaper 'Jhansi Times' dated 22.03.2009 as Ex. PW49/A and local newspaper dated 22.03.2009 namely Janta Union, regarding finding of the dead body along with photograph of deceased as Ex. PW49/B. This witness also exhibited on record the photographs of the room searched as Ex.PW49/P1 (colly, six photographs), the articles recovered from the personal search of deceased as Ex. PW-49/C and the seizure memos pertaining to the case property as Ex. PW-49/P1 to Ex.PW- 49/P3 and the statements of witnesses as Ex.PW-49/E and Ex.PW- 49/F. PW49 was cross examined on behalf of accused.
45. PW50 Insp. Devender Kumar deposed qua his manner and involvement and deposed on the same lines as that of PW41 HC Rajaram and PW48 Insp. Virender Singh. PW50 was cross examined on behalf of accused.
46. PW25 HC Bhagwan Singh was the police witness having limited role in the investigation being the finger print FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 25 of 60 proficient. This witness along with the mobile crime team inspected the Honda Civic Car and prepared the report as Ex. PW25/A. PW25 was also cross examined on behalf of accused.
47. PW3 Ct. Ajay Kumar, PW7 Ct. Swaraj Singh, PW8 HC Wasik Ahmad, PW10 HC Subhash, PW17 Retd.ASI Attar Singh, PW-18 Insp. Mahesh Kumar, PW20 HC Chand Ram, PW22 HC Kailash Chand, PW34 Sh. Sanjeev Kumar, PW40 SI Ashok Kumar Kaushik, PW47 Ct. Prahlad Singh, PW45 Ms. Kiran Bansal were the formal witnesses who exhibited on record various documents in their deposition. All the witnesses were cross examined on behalf of accused except PW34 and PW45.
48. No other PW was left to be examined, hence PE was closed.
STATEMENT OF ACCUSED PERSONS NAMELY GURUDARSHAN @ DARSHU AND LOKESH GUPTA U/S 313 Cr.P.C.:
49. Statement of accused persons namely Gurudarshan @ Darshu and Lokesh Gupta was recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them. Both the accused persons stated that they are innocent and have been falsely implicated in the present case.
It is further stated by accused Gurudarshan @ Darshu that the police officials had apprehended him from his home at FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 26 of 60 Agra on 21.03.2009 and taken him to the office of SOS and thereafter, he had been falsely implicated in the present case by showing the false recovery from him and false identification of guard Raj Pal at the farm house. It is further stated that he had been shown to Guard Rajpal and other witnesses at SOS office.
It is stated by accused Lokesh Gupta that the police officials had apprehended him from his home at Agra on 21.03.2009 and taken him to the office of SOS and thereafter, he has been falsely implicated in the present case by showing the false recovery from him and false identification of guard Raj Pal at the farm house. It is further stated that he have been shown to Guard Rajpal and other witnesses at SOS office. Accused further stated that he had lost his mobile phone on 17.03.2009 and reported about the same to SHO PS Hari Parvat Agra on 17.03.2009 and also informed General Manager of the Nodal Officer, Tata Indicomm, Agra for disconnection of his mobile phone on 18.03.2009.
Accused persons opted not to lead any defence evidence.
DEFENCE EVIDENCE :
50. Accused Lokesh Gupta to prove his plea of defence have examined 2 (two) defence witnesses (DW in short) in total that are discussed as follows:-.
51. DW-1 Sh. Nitin Gupta deposed that he has filed an application regarding taking away of his brother accused Lokesh Gupta by Delhi Police on 21.03.2009 at about 11.30 PM before SSP, Agra on 22.03.2009 which was duly received. Same is Ex.FIR no. 134/09
State v. Satguru Dass Maheshwari and others Page no. 27 of 60 DW1/A. It is further deposed that an RTI application has been filed seeking status of his application to which he received the reply from the office of SSP, Agra. Copy of same is Ex. DW1/B. DW1 was cross examined by Ld. Additional PP for the state.
52. DW-2 Sh. Lokesh Gupta deposed that he had lost his mobile phone on 17.03.2009 at about 11.00 AM near Sanjay Place, Agra, UP. It is further deposed that he made a complaint about the lost of his mobile phone at PS Hari Parbat, Agra UP. The complaint is Ex. DW2/A. DW2 was also cross examined by Ld. Additional PP for the state.
ARGUMENTS:
53. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony have remained unrebutted. It is further submitted that the incriminating circumstances forming a complete chain has been duly established by the prosecution by leading cogent evidence on record that draws the hypothesis of the guilt of the accused persons. Hence, accused persons are liable to be convicted for the offences u/s 120B/364/302/201/411 IPC and u/s 25/27 of The Arms Act.
54. On the other hand, gist of the arguments advanced by Ld. Legal Aid Counsel for accused persons Gurudarshan @ Darshu and Lokesh Gupta is that there is no legally sustainable evidence against the accused persons. It is argued that almost all the material witnesses to the recovery of the articles have turned hostile and not supported the case of the prosecution. The case of the prosecution FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 28 of 60 could not be established beyond reasonable doubt as the recoveries shown to have been effected at the instance of accused persons are also doubtful as no independent public witness has been made to join the proceedings. That the prosecution has failed to prove the complete chain of circumstances, therefore, the accused persons are entitled to the benefit of doubt and they deserve acquittal.
FINDINGS:
55. Arguments advanced by Ld. Additional PP for State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record perused carefully. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused persons have been indicted for the offences u/s 120B/364/302/201/411 IPC and u/s 25/27 of The Arms Act. Section 120B IPC provides for punishment for the offence of criminal conspiracy. Section 364 IPC provides for punishment for abduction of a person in order to committing of his murder. Section 302 IPC provides for punishment for the offence of murder. Section 201 IPC provides punishment for causing disappearance of the evidence with intention of screening the offender from legal punishment. Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowing or having reason to believe the same to be stolen property.
56. Now coming to the evidence lead on record by the prosecution in order to prove its case. Since the case of the prosecution is based on the circumstantial evidence, it would be apt FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 29 of 60 to have a look on the law in this regard. Hon'ble Apex Court, in its much-celebrated judgment of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, held that while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established.
"153. xxx xxx (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be"
established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
A similar view has been reiterated by the Hon'ble Supreme Court in State of UP v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttranchal (2009) 15 SCC 259.
57. The aforesaid five cardinal principles have been reiterated by the Hon'ble Supreme Court of India in numerous judgments. Therefore, the principle, as laid down in aforesaid judicial dicta, is that in cases based on circumstantial evidence, FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 30 of 60 circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
58. Keeping these conditions in mind and in light of the aforesaid guiding principles of law, this court shall now proceed with the case in hand and shall give findings with respect to each of the circumstance relied upon by the prosecution.
CIRCUMSTANCE OF LAST SEEN
59. The case of the prosecution in the present case heavily banks upon the principle of 'Last seen theory'. Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Section 106 of The Evidence Act also come into play which says that when any fact is specially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 31 of 60 and satisfactory. If it does so he must be held to have been discharged this burden. If the accused fails to offer a reasonable explanation, that itself provides an additional link in the chain of circumstances proved against him. This principle of law is well established and reiterated again and again by the Hon'ble Supreme Court of India in various judgments. For instance, reliance is placed upon Nizam and Anr. v. State of Rajasthan Cr. Appeal no. 413/207 decided on 04.09.2015 and Kirti Pal v. State of West Bengal, (2015) 5 Scale.
60. PW6 Raj Pal is the material witness of last seen on whose testimony the prosecution has heavily relied upon. This witness has narrated the details of the day when he saw accused persons namely Satguru Dass Maheshwari (since PO), Gurudarshan @ Darshu and Lokesh Gupta and the deceased Dharmender Arora at the farm house A-5, Asola, where he was performing the duty as security guard. He categorically deposed that on 19.03.2009 at about 11.00 AM victim Dharmender Arora came there in his Honda City Car and parked the same in the farm house and thereafter the accused persons also came there in a blue car and talked with Dharmender Arora and after sometime Dharmender Arora left with the accused persons and told PW6 that he will come back after sometime to take his car. This witness in his statement given to the police on 20.03.2009 even gave the physical description of the accused persons and reiterated the same in his testimony recorded before the court. PW6 identified the accused persons when produced by the police on 25.03.2009 and also identified the accused persons before the court during the trial. Not even a single material contradiction has appeared in the FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 32 of 60 testimony of PW6 during his cross examination on behalf of the accused persons.
61. Ld. Counsel for the accused Gurudarshan @ Darshu and Lokesh Gupta argued that PW6 denied his signatures on the identification memo Mark PW6/A so it shows that PW6 is a planted witness who have been shown the accused persons by the police in order to prove their case, hence, his testimony should not be relied upon. This court does not find much merits in the argument of the Ld. Defence Counsel for the simple reason that a particular fact cannot be seen in isolation and the entire testimony of the witness is to be read as whole and if deposition inspire confidence and holds the ring of truth then the same can be relied upon. Apart from the denial of signatures by PW6, his testimony identifying the accused persons as the same persons with whom the victim Dharmender Arora left the farm house is consistent, firm and unblemished. It is not the plea of accused persons that PW6 was not employed as security guard in the farm house A-5 where car of the deceased was found parked or he was not present in the farm house on the day of incident. Above all, the statement of PW6 giving the description of the features of accused persons before their arrest by the police matches with the physical features of the accused persons which is a crucial piece of evidence and put weight in the testimony of PW6 to be a truthful version.
62. The testimony of PW6 remained consistent on all the material aspects throughout all the stages be it the stage of investigation or at the stage of trial before the court. The elaborate FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 33 of 60 and uncontroverted testimony of PW6 leaves no room to doubt his deposition. PW-6 withstood the test of cross examination and his testimony remained firm and unblemished. Nothing has appeared on record to disbelieve his version. Hence, in view of the testimony of PW6, the circumstance of last seen stands established. Though this circumstance is a very weak piece of evidence and it needs to be corroborated by other independent evidence to complete the chain of circumstances leading to the hypothesis of guilt of accused persons that shall be discussed as this court proceed to appreciate the other circumstances relied upon by prosecution.
RECOVERY FROM ACCUSED GURUDARSHAN @ DARSHU:-
63. As per the case of prosecution, gold chain Ex. PW2/P3 belonging to the deceased Dharmender Arora was recovered from the possession of accused Gurudarshan @ Darshu at the time of his arrest that was seized vide seizure memo Ex. PW41/I. 63.1 Firstly, the seizure memo vide which the gold chain was seized that is Ex. PW41/I has not been witnessed by any public person. Admittedly, at the time of recovery proceedings accused Gurudarshan @ Darshu was present at a public place and the presence of public persons around the same is not disputed by the police witnesses. There is no explanation given by the Investigating Officer for not joining the independent public witness at the time of recovery proceedings. No sincere efforts were made by police to join any public witnesses at the relevant time. Non joining of the independent public witness itself creates a dent in the story of the FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 34 of 60 prosecution.
63.2 Secondly, the recovery of gold chain from accused Gurudarshan @ Darshu also become doubtful for another reason. As per the cash memo exhibited as Ex. PW9/A the gold chain was bought from Hira Jewellers Pvt. Ltd. PW9 Vanisha Talwar has been examined by the prosecution in this regard. In her examination in chief, this witness claimed that few police men came to her showroom and had shown her certain jewellery articles like gold chain and a gold ring and sought verification if the said articles were sold from their shop. As per this witness the police visited her on 12.06.2009 and obtained her signatures on the document Ex. PW9/A. It is pertinent to note that if the case property i.e. gold chain recovered from the possession of accused Gurudarshan @ Darshu was seized and duly sealed at the time of seizure on 22.03.2009 then how come the case property was shown to the witness PW9 on 12.06.2009. Meaning thereby, either the case property was not recovered from the possession of the accused Gurudarshan @ Darshu and it is planted upon him by the police later on or the property was de-sealed at the time of showing to the jeweller for the purpose of identification, therefore the possibility of tampering and manipulation of the case property cannot be ruled out. Hence, a strong doubt in respect of recovery is created qua the accused Gurudarshan @ Darshu.
63.3 As per the case of prosecution, a desi katta Ex. PW41/P5 plus two live cartridges Ex. PW41/P-6 (Colly) were also recovered from the possession of accused Gurudarshan @ Darshu that were seized vide seizure memo Ex. PW41/H. The seizure memo as well as the sketch memo Ex. PW41/G does not bears the signatures of any independent public witness. As observed in the FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 35 of 60 preceding paragraph that the recovery was effected from the accused Gurudarshan @ Darshu while he was present at a public place and admittedly public persons were also present around the said area so non joining of independent public witness by the police creates dent in the story of the prosecution. Reliance is placed upon the judgment passed by the Hon'ble High Court of Delhi in case titled as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314 (HC)". Hence, recovery cannot be said to have been proved beyond reasonable doubt.
64. In view of discussion above, this incriminating circumstance of recovery cannot be said to be proved beyond reasonable doubt.
RECOVERY FROM ACCUSED LOKESH GUPTA:-
65. As per the case of prosecution, mobile phone Ex. PW41/P7 belonging to the deceased Dharmender Arora was recovered from the possession of accused Lokesh Gupta at the time of his arrest that was seized vide seizure memo Ex. PW41/F. 65.1 Firstly, the seizure memo vide which the mobile was seized that is Ex. PW41/F has not been witnessed by any independent public person. Admittedly, at the time of recovery proceedings accused Lokesh Gupta was present at a public place and the presence of public persons around the same is not disputed by the police witnesses. There is no explanation given by the Investigating Officer for not joining the independent public witness at the time of recovery proceedings. No sincere efforts were made FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 36 of 60 by police to join any public witnesses at the relevant time. Non joining of the independent public witness itself creates a dent in the story of the prosecution.
65.2 Secondly, it is highly improbable to believe that a person who had the knowledge that the mobile he is carrying belongs to the person whom he had killed 2 days prior will carry the robbed mobile phone with him to be later on caught by the police. Further, the mobile phone had a SIM card also at the time of recovery from the accused Lokesh Gupta but there is no document placed on record to show as to which mobile number was being used by accused Lokesh Gupta in the aforesaid mobile phone as admittedly the SIM card number of the deceased Dharmender Arora was different from that of the SIM card number mentioned in the seizure memo Ex. PW41/F. The location of the said mobile phone from the place of recovery could have also been ascertained if the investigating officer has procured the details from the concerned tele-company. Hence, in view of the above the recovery of mobile phone from the possession of the accused Lokesh Gupta becomes doubtful.
65.3 As per the case of prosecution, an automatic pistol Ex. PW41/P1 plus four cartridges Ex. PW41/P2 (Colly) were also recovered from the possession of accused Lokesh Gupta that were seized vide seizure memo Ex. PW41/E. The seizure memo as well as the sketch memo Ex. PW41/D does not bears the signatures of any independent public witness. As observed in the preceding paragraph that the recovery was effected from the accused Lokesh Gupta while he was present at a public place and admittedly public persons were also present around the said area so non joining of independent public witness by the police creates dent in the story of FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 37 of 60 the prosecution. Reliance is placed upon the judgment passed by the Hon'ble High Court of Delhi in case titled as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314 (HC)". Hence, recovery cannot be said to have been proved beyond reasonable doubt.
66. In view of discussion above, this incriminating circumstance cannot be said to be proved beyond reasonable doubt.
RECOVERY FROM ACCUSED SATGURU DASS MAHESHWARI (PO):
67. As per the case of prosecution, a watch make Rado Ex. PW2/P-2 belonging to the deceased Dharmender Arora was recovered from the house of accused Satguru Dass Maheshwari (since PO) at his instance that was seized vide seizure memo Ex. PW32/C. The said seizure memo was witnessed by independent public witness namely PW32 Inderjeet Malhotra. In his examination in chief PW32 turned hostile and stated that nothing was recovered in his presence and his signatures were obtained by the police on a paper claiming it to be merely a formality. During his cross examination by the Ld. Public Prosecutor, this witness even denied to have recorded his statement to the police. Meaning thereby, the recovery of the Rado Watch at the instance of accused Satguru Dass Maheshwari (since PO) also comes under doubt.
68. As per the case of prosecution, at the instance of accused Satguru Dass Maheshwari (since PO), a gold ring belonging to FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 38 of 60 deceased Dharmender Arora was produced by PW23 Swami Dayal Sehgal and seized vide seizure memo Ex. PW23/A. Allegedly, accused Satguru Dass Maheshwari (since PO) gave the ring of the deceased to the jeweller PW23 for reconstructing the ring and changing its size fitting to requirement of accused Satguru Dass Maheshwari (since PO) as per his size, however, during the examination of PW23 the gold ring seized vide seizure memo Ex. PW23/A was denied to be the same ring that was prepared by PW23. The witness PW23 categorically denied the stamp bearing over the said ring of his shop. During cross examination this witness even denied that the ring was sealed by the IO at his shop and stated that IO Insp. Ved Prakash had kept the ring and the documents with him. The other independent witness PW32 Inderjeet Malhotra who signed the seizure memo of gold ring Ex. PW23/A also denied the recovery in his presence. He categorically stated that nothing was recovered in his presence nor he recorded any statement to the police. Meaning thereby, the recovery of the gold ring at the instance of accused Satguru Dass Maheshwari does not connect and get established beyond reasonable doubt.
69. It has already been discussed in the previous paragraphs that PW9 Ms. Vanisha Talwar has claimed that the jewellery was produced before her by the police to verify its sale on 12.06.2009 and if it so happened then it also creates doubt in the seizure and seal of the gold ring seized at the instance of accused Satguru Dass Maheshwari (since PO) on 24.03.2009. Moreover, PW9 Ms. Vanisha Talwar identified the gold ring to have been sold by her company which is also contradictory and not possible as the case property (altered shape and size of gold ring) was produced before FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 39 of 60 her on 12.06.2009 whereas the gold ring was seized at the instance of accused Satguru Dass Maheshwari (Since PO) on 23.03.2009. After reconstruction of gold ring, it was not possible for PW9 to identify the same as the same ring that was sold by her. Meaning thereby, either the case property was not recovered from the possession of the accused Satguru Dass Maheshwari (since PO) and it is planted upon him by the police later on or the property was de-sealed at the time of showing to the jeweller PW-9 for the purpose of identification, therefore the possibility of tampering and manipulation of the case property cannot be ruled out. Hence, a strong doubt in respect of recovery is created qua the accused Satguru Dass Maheshwari (since PO).
70. As per the case of prosecution, an automatic pistol Ex. PW41/P3 plus four cartridges Ex. PW41/P4 (Colly) were also recovered from the possession of accused Satguru Dass Maheshwari (since PO) that were seized vide seizure memo Ex. PW41/B. The seizure memo as well as the sketch memo Ex. PW41/A does not bears the signatures of any independent public witness. As observed in the preceding paragraph that the recovery was effected from the accused Satguru Dass Maheshwari (since PO) while he was present at a public place and admittedly public persons were also present around the said area so non joining of independent public witness by the police creates dent in the story of the prosecution. Reliance is placed upon the judgment passed by the Hon'ble High Court of Delhi in case titled as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314 (HC)". Hence, recovery cannot be said to have been proved beyond reasonable doubt.
FIR no. 134/09State v. Satguru Dass Maheshwari and others Page no. 40 of 60
71. In view of discussion above, this incriminating circumstance also cannot be said to be proved beyond reasonable doubt.
WEAPON OF OFFENCE:-
72. As per the case of prosecution, victim Dharmender Arora was found shot dead and during his postmortem an evidence bullet Ex. PW1/P9 was recovered from his body. It is relevant to note that the country made pistol allegedly recovered from the accused Gurudarshan @ Darshu does not connect as a weapon of offence in this case as the evidence bullet recovered from the body of the deceased corresponds to the bullet of 7.65 mm cartridge whereas the country made pistol shown to have been recovered from the possession of the accused Gurudarshan @ Darshu is of 0.32 bore. Above all, the investigating agency has failed to obtain sanction order u/s 39 of The Arms Act and no such document has been lead in evidence that was necessary to establish the offence u/s 25 of The Arms Act.
73. It is further relevant to note that the improvised pistol allegedly recovered from the accused Lokesh Gupta also does not connect as a weapon of offence in this case as the evidence bullet recovered from the body of the deceased though correspond to the bullet of 7.65 mm cartridge but as per the FSL report dated 10.06.2010 it has been opined that EB1 has not been discharged through the exhibit F2 i.e. the pistol shown to have been recovered FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 41 of 60 from the possession of the accused Lokesh Gupta. Above all, the investigating agency has failed to obtain sanction order u/s 39 of The Arms Act and no such document has been lead in evidence that was necessary to establish the offence u/s 25 of The Arms Act.
74. As far as recovery of the the pistol from the accused Satguru Dass Maheshwari (since PO) is concerned it also does not connect as a weapon of offence in this case as the evidence bullet recovered from the body of the deceased though correspond to the bullet of 7.65 mm cartridge but as per the FSL report dated 10.06.2010 it has been opined that individual characteristic of striation present on evidence bullet marked EB1 are insufficient for comparison and opinion whether it has been discharged through the exhibit F1 i.e. the pistol shown to have been recovered from the possession of the accused Satguru Dass Maheshwari (since PO).
SIM CARD OF ACCUSED GURUDARSHAN @ DARSHU:-
75. As per the case of prosecution the mobile connection no.
9219510413 was used by the accused Gurudarshan @ Darshu through which he was in contact with other co accused persons i.e. reflected from the documents exhibited on record by the Nodal Officers. It is important to note that as per PW13 M.M. Vijayan, the subscriber of the aforesaid mobile number was one Manmohan. The documents pertaining to the aforesaid mobile number are also in the name of Manmohan that were submitted with the customer application form exhibited as Ex. PW13/B. Manmohan has not been called and examined by the prosecution to prove on record if FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 42 of 60 the aforesaid mobile number was used by the accused Gurudarshan @ Darshu or that at any point he had given the aforesaid mobile number to accused Gurudarshan @Darshu for the purpose of using it. No other independent person has been examined by the prosecution to establish on record that accused Gurudarshan @ Darshu was the user of aforesaid mobile number. In absence of cogent evidence in this regard, this incriminating circumstance cannot be said to be proved by the prosecution.
LOCATION OF THE MOBILE NUMBERS OF ACCUSED PERSONS:
76. As far as the mobile number 9219510413 is concerned, it has already been held in the preceding paragraph, the mobile number 9219510413 alleged to have been used by the accused Gurudarshan @ Darshu was not issued in his name. As per the documents Ex. PW13/B (Colly) the subscriber of the aforesaid mobile number was one Mr. Manmohan who has not been examined by the prosecution to establish the usage of the aforesaid mobile number by the accused Gurudarshan @ Darshu. There is nothing on record to prove the usage of aforesaid mobile by accused Gurudarshan @ Darshu.
77. Prosecution has examined PW5, Pawan Singh, Nodal Officer who proved on record the documents Ex. PW5/A, Ex.
PW5/A1 to Ex. PW5/A4, Ex. PW5/B that pertains to the mobile number 9990823183 issued in the name of Satguru Dass Maheshwari (Since PO). PW13 M.M. Vijayan, Nodal officer proved on the documents Ex. PW13/C collectively pertaining to the FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 43 of 60 mobile number 9219658530 subscribed in the name of accused Lokesh Gupta. The call detail record of the aforesaid mobile numbers exhibited as Ex. PW5/F-1 to F-80 and Ex. PW14/P14 to P35 respectively have been proved on record by PW5 and PW14. The exchange of calls between the aforesaid numbers on the date of incident i.e. 19.03.2009 are thus proved on record.
78. Similarly, PW28 Israr Babu, Nodal Officer has proved on record the documents Ex. PW28/A, Mark PW28/X, Ex. PW28/B pertaining to the mobile number 9899123455 issued in the name of Dharmender Arora (victim). The call detail records of the aforesaid number and the call detail records of the mobile number 9990823183 issued in the name of Satguru Dass Maheshwari (Since PO) also shows the exchange of calls between the aforesaid numbers on the date of incident as well as a day before the date of incident.
79. Now mere exchange of calls between the mobile numbers of the accused persons does not automatically proves the criminal conspiracy amongst them. The chain has already been snapped as the prosecution could not establish the usage of mobile number 9219510413 by the accused Gurudarshan @ Darshu. Further, the prosecution has failed to establish on record the location and route of the mobile numbers of the accused persons from a place where the victim was abducted on 19.03.2009 and to the place where he was kept before being murdered and at the place where his body was dumped on 20.03.2009. The route of the mobile numbers of the accused persons by way of cell IDs could not be established by the prosecution.
FIR no. 134/09State v. Satguru Dass Maheshwari and others Page no. 44 of 60
80. The document Ex. PW5/F1 to F80, call detail records of the mobile number 9990823183 shows that the location of the mobile on 19.03.2009 at 06.25 PM till 08.14 PM was in Delhi which is contrary to the case of the prosecution as the accused persons took the deceased to Agra after injecting him sedatives in the area of Asola where deceased joined the accused persons in their car between 11.00 AM to 12.00 noon. Further the location of the aforesaid mobile in the area of Uttar Pradesh between 1.14 PM on 19.03.2009 till 05.39 PM does not prove the specific location of the house of the accused Satguru Dass Maheshwari (since PO) in Agra. The document Ex. PW5/F1-F80 reflects Cell ID as INDEU- 304-61043 etc. but what the numbers mentioned therein denotes as location not lead in evidence except the one that pertains to Delhi which in any case establish its location at the relevant time and place where car of victim was parked and in and around the said area. In fact the cell ID of the area of the Uttar Pradesh where the accused persons travelled had not been lead in evidence to show their exact locations supporting the case of the prosecution. Similar is the case with the mobile number 9219658530 pertaining to accused Lokesh Gupta. The location of this mobile number has not been established by way of cell ID chart as no such document has been lead in evidence by the prosecution that could have ascertained the exact location of the aforesaid mobile number on the date of incident or thereafter till the body of victim was dumped in the area of Jhansi. The documents Ex. PW14/P-14 only shows the roaming as UPW but did not give exact location of the mobile phone. There had to be specific evidence lead by prosecution to prove the location of accused persons on the relevant places by way of cell ID chart but it lacks evidence in this respect that could not FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 45 of 60 establish this incriminating circumstance beyond reasonable doubt.
81. In view of the evidence lead on record it can be safely concluded that the call detailed records and the location ID of the mobile numbers of the accused persons cannot be considered as incriminating circumstance against the accused persons as their location at the relevant time and place does not get proved beyond reasonable doubt.
RECOVERY OF DEMAND DRAFTS PREPARED FROM THE ROBBED MONEY BY ACCUSED SATGURU DASS MAHESHWARI (PO).
82. As per the case of prosecution, accused persons robbed the deceased of his belongings including cash of Rs. 40,000/- and shared the booty amongst themselves. It is the case of the prosecution that accused Satguru Dass Maheshwari (since PO) got two demand drafts bearing no. 57572 and 57573 amounting to Rs. 4,550/- each prepared through his wife Sudeepa D. Maheshwari in favour of Gyan Bharti School, Saket. The said original bank drafts are exhibited as Ex. PW27/B and Ex. PW27/C were seized vide seizure memo Ex. PW32/E. During the arrest of accused Satguru Dass Maheshwari (since PO) three currency notes of Rs. 1,000/- each were recovered from his possession which is also claimed by the prosecution to be the part of the robbed amount.
83. First and foremost there is no distinct mark or specific numbers stated on the currency notes to identify and establish FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 46 of 60 being part of the robbed amount from the deceased Dharmender Arora. Secondly, none of the family member of deceased has deposed in their testimony qua the possession or carrying of amount of Rs. 40,000/- in cash by the deceased along with him on the date of incident. In fact, PW2 Smt. Anju Arora during her cross examination stated that there was no substantial cash available on the night of 18.03.2009 at her house. In absence of any cogent evidence on record with respect to the availability of such huge cash amount with deceased Dharmender Arora, the amount of Rs. 3,000/- recovered from the possession of accused Satguru Dass Maheshwari (Since PO) and the bank drafts seized from his house amounting to Rs. 9,100/- (Rs. 4,550/- x 2) does not in any manner get connected to the offence in question merely, on the basis of disclosure statement made by accused himself. The aforesaid fact is also probablized by another relevant fact that at the time of recovery of dead body of the victim Dharmender Arora a sum of Rs. 250/- was recovered from his body clothes. If the accused persons had robbed him of all of his belongings including the cash of Rs. 40,000/- then there was no point of leaving Rs. 250/- with the dead body.
84. Another important point to be noted is that Ex. PW32/E seizure memo of demand drafts is witnessed by PW32 Inderjeet Malhotra being the independent public witness. It has already been discussed in earlier paragraphs that this witness has turned hostile and he has categorically denied the recovery from accused Satguru Dass Maheshwari's house in his presence. Similarly, seizure memo of Rs. 3,000/- Ex. PW41/L is not witnessed by any independent public witness which again dent the story of the prosecution.
FIR no. 134/09State v. Satguru Dass Maheshwari and others Page no. 47 of 60 Reliance is placed upon the judgment passed by the Hon'ble High Court of Delhi in case titled as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314 (HC)". In view of the discussion above, this circumstance also could not be established by the prosecution beyond reasonable doubt.
FORENSIC EVIDENCE
85. The car bearing no. UP80AJ1646 belonging to the accused Satguru Dass Maheshari (since PO) was seized vide seizure memo Ex. PW32/D being the signature of witness PW32. The independent witness namely Inderjeet Malhotra PW32 has turned hostile and denied the recovery in his presence. He even denied to have recorded his statement to the police and stated that his signatures were obtained on blank paper claiming it to be a formality by the police. In view of his statement, the recovery of the aforesaid vehicle cannot be said to be proved beyond reasonable doubt. Be that the case may be, the ownership of the vehicle in the name of the accused Satguru Dass Maheshwari (Since PO) is not disputed by the accused and has also been proved on record by the witness PW26 Maharaj Singh. The blood stained rear seat belt of the car bearing no. UP80AJ1646 belonging to accused Satguru Dass Maheshwari (since PO) was examined by the forensic expert and vide FSL report Ex. PW42/B it was concluded that the blood stains though detected could not be found matched with the blood group of the deceased. Report remained inconclusive and the blood could not give reaction to ascertain its group. It has already been held in the previous paragraphs that the evidence bullet recovered from the body of the deceased at the time FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 48 of 60 of post mortem could not be found to be discharged from the weapons allegedly recovered from the possession of the accused persons. Hence, none of the scientific evidence collected is found incriminating against the accused persons connecting their role as perpetrator of the crime.
OTHER CIRCUMSTANCES
86. It is the case of the prosecution that the victim Dharmender Arora was injected with sedatives before being taken to Agra. PW1 Dr. Balbeer Kishan Gupta during his cross examination stated that no sedative chemical in the dead body was detected during post mortem on the body of the deceased. Absence of sedative substance in the body of deceased falsifies the story of the prosecution of administering the same to the victim on the date of incident by accused Lokesh Gupta. It is further relevant to note that no witness has been examined by the prosecution to prove the purchasing of lori injection alleged to have been purchased by accused Lokesh Gupta from M/s Ram Raghu Medical that was administered to the deceased. During the investigation statement of the salesman Shyam Singh and owner Suresh of M/s Ram Raghu Medical Store was recorded by the Investigating Officer but no such witness has been examined by the prosecution to establish the aforesaid fact nor any document in respect to purchase or sale of any injection has been lead in evidence to substantiate the same.
87. It is the case of the prosecution that accused Satguru Dass Maheshwari (since PO) purchased cartridges from Bandook FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 49 of 60 Ghar by using license of one Vishal Saini. During the investigation owner of Bandook Ghar namely Sanjay Paliwal was examined and documents pertaining to the purchase of cartridges were seized that are exhibited as Ex. PW48/H, Ex. PW48/I and Ex. PW48/J, however, no such witness has been examined by the prosecution in the court to prove the same. Even the said Vishal Saini has also not been examined by the prosecution to establish its case against the accused persons. The FSL report with respect to examination of handwriting of Vishal Saini and Satguru Dass Maheshwari (since PO) did not gave any favourable opinion in support of the case of the prosecution to establish anything incriminating against the accused Satguru Dass Maheshwari (since PO).
MOTIVE
88. The prosecution has tried to gather the motive of killing from the disclosure statements of the accused persons as they wanted to extort the money from the family of the deceased Dharmender Arora by making ransom call which he refused and as a result the accused persons murdered Dharmender Arora. Admittedly, no evidence with respect to any ransom call made by the accused persons to the family members of the deceased has come on record. Therefore there is nothing on record as such that proves the motive of killing.
89. Motive may not be necessary in the case of direct evidence but in cases based upon circumstantial evidence the existence of motive becomes significant. Complete absence of FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 50 of 60 motive definitely weighs in favour of the accused. It is an important circumstance which is relevant for assessing the evidence in the given facts and circumstance of the case. Therefore, in view of the discussion above, it can be safely concluded that the prosecution has failed to substantiate the aspect of motive on record. Hence, this crucial link that can form the chain of circumstances could not be established beyond reasonable doubt.
DISCREPANCIES IN THE TESTIMONY OF POLICE WITNESSES
90. The testimony of Investigating Officer Insp. Ved Prakash contains several material discrepancies which contradicts the case of the prosecution apparently. PW49 Insp. Ved Prakash stated that one country made pistol was recovered from the possession of accused Satguru Dass Maheshwari (Since PO) whereas the seizure memo Ex. PW41/B exhibited in the testimony of PW41 and the testimony of other police witnesses shows it to be an automatic improvised pistol. Similarly, PW49 Insp. Ved Prakash stated that one country made pistol was recovered from the possession of accused Lokesh Gupta whereas the seizure memo Ex. PW41/E exhibited in the testimony of PW41 and the testimony of other police witnesses shows it to be an automatic improvised pistol. On the other hand, PW50 Insp. Devender Kumar stated that country made pistol was recovered from the accused Satguru Dass Maheshwari (since PO) which was found to be loaded with five cartridges whereas the seizure memo and the testimony of other FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 51 of 60 police witnesses talks about recovery of four cartridges. PW49 and PW50 being the material witnesses does not even know about the nature of weapon recovered from the accused persons which is very surprising and the possibility of it being planted therefore cannot be ruled out.
91. PW49 Insp. Ved Prakash during his cross examination stated that the pullanda of alleged recovery of Rado Wrist Watch was prepared inside the house of accused Satguru Dass Maheshwari (since PO) whereas on the contrary PW16 HC Rajbir during his cross examination stated that the IO had not made the seizure memo nor converted the seized articles into pullanda, in the house of accused Satguru Dass Maheshwari (since PO). PW46 SI Ashok Kumar who is the police witness to the recovery of the articles from the house of accused Satguru Dass Maheshwari (since PO) stated that he joined the police team of Delhi Police on 23.03.2009 whereas the PW48 SI Virender Singh and the IO Insp. Ved Prakash stated to have visited Agra for further investigation on 24.03.2009 and seizure memos are also dated 24.03.2009. PW46 could not identify the accused Lokesh Gupta and Gurudarshan @ Darshu nor he could tell if the aforesaid accused persons were present with the Investigating Officer when he joined the proceedings where as allegedly all the accused persons were taken by police to Agra and Jhansi for the purpose of investigation. Even PW16 HC Rajbir does not anywhere in his examination in chief stated that other two accused persons i.e. accused Lokesh Gupta and Gurudarshan @ Darshu also accompanied them on 24.03.2009. Further, as per PW46, IO had called one jeweller namely S.D. Sehgal, proprietor of Pritam Dass Jeweller to make inquiry about FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 52 of 60 the jewellery whereas on the contrary PW23 claimed that Insp. Ved Prakash came to his shop inquiring about the ring. PW16 HC Rajbir Singh also stated that the police team went to the shop of jeweller first on reaching Agra and thereafter to the house of accused Satguru Dass Maheshwari (since PO). PW16 in his chief even stated that the gold ring was recovered from the house of Satguru Dass Maheshwari (since PO) which is also contrary to the case of prosecution. The testimony of PW23 that none except Insp. Ved Prakash and accused Satguru Dass Maheshwari (since PO) came to his shop on that day creates doubt in the presence of PW46 with the Delhi Police team. The deposition of PW16 and PW46 does not inspire confidence in view of the material inconsistencies and also in view of the fact that the other independent witness to the recovery that is PW32 has already turned hostile and deposed to the contrary.
92. PW41 HC Raja Ram was another police witness who participated in the investigation in the present matter along with the IO. In his deposition also, material discrepancies appeared which renders his testimony highly unreliable. Firstly, this witness stated to have accompany the IO and other staff to Jhansi on the night of 21.03.2009 whereas during his cross examination the witness was confronted with a DD entry dated 21.03.2009 marked as PW41/DA which shows his presence in the office of SOS crime branch, Sunlight Colony, Delhi at 11.51 PM on 21.03.2009. Further, as per PW41 he left Agra for going to Jhansi at about 11-11.30 PM when the information was received regarding unclaimed dead body at Jhansi and at that time the team was present near the house of Satguru Dass Maheshwari (since PO) in Agra whereas on the FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 53 of 60 contrary PW11 Yograj Arora and PW4 Harish Arora who were also traveling with the police team stated that when they were about to reach back to Delhi from Agra on 21.03.2009 in the late night, they got the information about the dead body found in Jhansi and from there they rushed back to Jhansi alongwith the police team. PW41 in his examination in chief stated that accused Satguru Dass Maheshwari (since PO) made a disclosure statement about his two associates coming at barapullah, near Hazrat Nizamuddin Railway Station but no such fact is found stated in the disclosure statement of accused Satguru Dass Maheshwari (since PO) exhibited as Ex. PW48/B.
93. PW41 Raja Ram in his examination in chief stated to have accompanied the IO on 24.03.2009 to PS Badagaon, Jhansi but he did not mention about the visit to Agra on the same day by the IO for the purpose of investigation and he also did not state anything about the presence of accused persons accompanying police team on 24.03.2009 whereas on the contrary as per the case of prosecution, accused persons were taken by the police team to Agra as well as Jhansi on 24.03.2009. PW41 in his cross examination stated that he did not know how SI Devender identified the accused Satguru Dass Maheshwari (Since PO) before his apprehension nor he could tell if the IO requested any public person to join the investigation at the time of arrest and recovery from the accused persons. It has already been held in previous paragraphs that due to non joining of public witnesses, the recovery effected from the accused persons is doubtful. The testimony of PW41 also does not inspire confidence.
FIR no. 134/09State v. Satguru Dass Maheshwari and others Page no. 54 of 60 IDENTITY OF THE DECEASED:
94. PW31 Sh. Rajeev, PW35 Sh. Kehar Singh, PW4 Harish Arora and PW11 Yograj Arora identified the dead body of the deceased. PW31 and PW32 were the witness to the panchnama Ex. PW31/A prepared by SI Babu Ram. Both these witnesses identified the dead body of the deceased Dharmender Arora from the photographs Mark PW31/P-1. PW4 and PW11 identified the dead body in the mortuary of Civil Hospital, Jhansi and received the same vide handing over memo Ex. PW38/A. Recovery of the body from road side at the farm of Kishore Kabootra, Village/Mauja, Takuri has also been proved by PW43 SI Babu Ram and PW38 Insp. Satya Deo whose testimony remained unrebutted even during their cross examination. Hence, the identity of the dead body of deceased Dharmender Arora and the place of its recovery has been duly proved on record by the prosecution witnesses.
95. Accused Lokesh Gupta has taken the plea that he was arrested from his house at Agra on 21.03.2009 and not from Delhi on 22.03.2009 as claimed by the prosecution. In order to prove this plea, the witness examined his brother Nitin Gupta as DW1/A, who in his deposition exhibited two documents, one the complaint given by him to the police regarding taking away of his brother Lokesh Gupta by Delhi Crime branch from his house on 21.03.2009 and the other document pertaining to the RTI application that are exhibited as Ex. DW1/A and Ex. DW1/B respectively. The original documents pertaining to the aforesaid complaint and the reply to the RTI application has not been produced by the witness from the concerned police office nor any official from the concerned office FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 55 of 60 has been examined in this regard, hence, the documents cannot be said to proved on record. Thus, the plea of defence could not be substantiated.
96. Ld. Defence Counsel raised another contention that the accused Lokesh Gupta had lost his mobile phone on 17.03.2009 having the number 9219658530 for which he has given a complaint to PS Hari Parvat, Agra UP on 17.03.2009 and also reported the matter to Tata Indicomm for stopping the operation of the SIM card vide complaint dated 18.03.2009. DW2 relied upon the documents in respect of the above exhibited as Ex. DW2/A and Ex. DW2/1 respectively. It is the argument of Ld. Defence Counsel that the accused Lokesh Gupta was not using the mobile number 9219658530 on the date of incident i.e. 19.03.2009. Original documents have not been produced by accused nor the official from the departments concerned has been examined in this regard. Hence, this plea of accused Lokesh Gupta also could not be substantiated.
97. It is settled position of law that more the gravity of the offence, more stricter the standard of proof is required and the onus lies upon the shoulder of the prosecution to discharge the same. It has already been discussed in the previous paragraphs that the recovery of the articles shown to have been effected from the possession of the accused persons namely Gurudarshan @ Darshu and Lokesh Gupta has not been witnessed by any material public witness. It has been held in the judgment passed in the case titled FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 56 of 60 "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) in which Hon'ble High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
The Investigating officer has joined independent public witness at the time of recovery proceedings qua accused Satguru Dass Maheshwari (since PO) but did not gave any explanation why no independent public witness was joined at the time of recovery proceedings qua accused Gurudarshan @ Darshu and Lokesh Gupta. Thus, the recovery allegedly effected from the possession of the accused persons cannot be said to be proved beyond reasonable doubt. Similarly, the mobile data records qua the accused persons also does not indicate the route and the location of the accused persons at the relevant point of time beyond reasonable doubt. The exact location has not been proved on record. The dots also do not get connected as the usage of the mobile number 9219510413 by the accused Gurudarshan @ Darshu has not been proved. This incriminating circumstance could not be established against the accused persons.
FIR no. 134/09State v. Satguru Dass Maheshwari and others Page no. 57 of 60
98. Further, though the accused Satguru Dass Maheshwari (since PO) is not before the court but the evidence related to him has been discussed in order to see if the chain of circumstances gets completed or not. The location of the accused Satguru Dass Maheshwari (since PO) at the place where deceased was abducted and his exchange of call on the mobile with the deceased has been duly proved but all other evidences qua the accused Satguru Dass Maheshwari (since PO) is also found to be shaky and do not hold credence in view of the observations made in the previous paragraphs, thus, it snapped the chain of circumstances.
99. Except the fact of last seen, all other incriminating circumstances appearing against the accused persons could not be established on record beyond reasonable doubt. Even the last seen theory is a weak piece of evidence that cannot be acted upon solely to convict the accused persons in absence of any corroborative piece of evidence. In the instant case deceased was last seen with the accused persons in the morning of 19.03.2009 whereas his dead body was recovered from several kilometers away on 21.03.2009. Hence, there is huge time gap in between when the deceased was seen alive and when his body was found. It is well-settled proposition of law that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. Where time gap is long it would be unsafe to base the conviction on the "last seen theory"; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. In the absence of definite evidence that FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 58 of 60 accused persons and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the accused persons are responsible for the murder of Dharmender Arora and are guilty of committing his murder.
CONCLUSION
100. It is settled position of law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In the instant case, the important circumstances relied upon by the prosecution have not been proved beyond reasonable doubt. The inconsistencies and discrepancies occurring in the testimony of prosecution witnesses creates strong doubt in the case of the prosecution. The chain of circumstances has been snapped and that rule out the hypothesis of guilt of the accused persons in the given circumstances and the evidence led on record. The necessary principles of law as enumerated in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, have not been complied with.
101. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be"
true in order to steer clear of any possible surmise or conjecture.FIR no. 134/09
State v. Satguru Dass Maheshwari and others Page no. 59 of 60
102. In light of aforesaid circumstances, this court has no hesitation in holding that the circumstances relied upon the prosecution have not been fully established and they are not conclusive in nature. It is not a case where the only hypothesis of guilt of accused persons can be inferred from the facts brought on record. The prosecution has failed to elevate its case from the realm of "may be true" to "must be true" as indispensably required in law for conviction on basis of circumstantial evidences on a criminal charge. The prosecution from the quality and quantity of the evidence could not prove the chain of circumstantial evidence which could only lead to one inference i.e. the guilt of accused persons.
103. In view of the discussion above, the accused persons are entitled to be given benefit of doubt. Accordingly, accused persons namely Gurudarshan @ Darshu and Lokesh Gupta are hereby acquitted of all the charges levelled against them in the present case. Digitally signed VISHAL by VISHAL PAHUJA PAHUJA Date: 2024.02.03 16:15:32 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 03.02.2024 ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS Containing 60 pages all signed by the presiding officer.
Digitally signed by VISHALVISHAL PAHUJA PAHUJA Date:
2024.02.03 16:15:38 +0530 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR no. 134/09 State v. Satguru Dass Maheshwari and others Page no. 60 of 60