Delhi District Court
State vs . Yashu & Ors. on 30 July, 2020
IN THE COURT BY SH. VISHAL SINGH, ADDITIONAL SESSIONS
JUDGE-03: WEST DISTRICT, THC, DELHI.
UID No. 57741/2016
State Vs. Yashu & Ors.
FIR No. 375/2009
U/s. 302/120B/34 IPC & Section 25 Arms Act.
PS: Nangloi
JUDGMENT
1. Sr. No. of the case : 57741/2016
2. Date of Committal to Sessions : 23.12.2009
3. Name of the complainant : ASI Rampal Singh
4. Date of Commission of Offence : 1415/09/2009.
5. Name and Parentage of Accused : 1. Yashu
S/o. Late Sh. Rajbir Singh
R/o. H. No. 57/2, Village Mundka,
Delhi.
2. Vineet @ Kala
S/o. Sh. Ombir
R/o. H. No. 379, Near Takia
Johad, Village Mundka, Delhi.
3. Sunil Kumar
S/o. Sh. Bhim Singh
H. No. 1016, Village Mundka,
Delhi.
6. Offence complained of : 302/120B/34 IPC &
Section 25 Arms Act.
7. Offence Charged : All three accused charged for the
offence U/s. 302/120B IPC
: Accused Sunil Kumar and Yashu
separately charged for the offence
FIR No. 375/2009
PS Nangloi State Vs. Yashu & Ors. Page 1/74
U/s. 25 Arms Act.
8. Plea of Guilt : Not guilty.
9. Final Order : Accused Yashu, Sunil & Vineet
convicted for the offence
U/s. 302/120B IPC.
: Accused Yashu additionally
convicted for the offence
U/s. 25 Arms Act.
: Accused Sunil is acquitted of
the offence U/s. 25 Arms Act.
10. Date on which Order Reserved : 16.07.2020.
11. Date on which Order Announced : 30.07.2020.
BRIEF FACTS AND REASONS FOR DECISION:
1. The accused persons are facing trial for committing murder of victim Ms. Nitika, who left home for college in the morning of 14/09/2009 and was found murdered with gunshot wound on her left temple in the house of accused Yashu located at Balmiki Mohalla, near Guga Johar, Village Mundka in the afternoon of 15/09/2009. During investigation the police gathered evidence that accused Yashu, Sunil and Vineet were seen near victim's home in the morning of 14/09/2009. They were seen together again at around 2:30 3:00 pm on 14/09/2009 at the gate of Yashu's house, where the dead body of victim Ms. Nitika was discovered on 15/09/2009 at 3:00 pm in rotting condition. On FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 2/74 suspicion of committing Nitika's murder, accused Vineet and Yashu were arrested on 17/09/2009 and 21/09/2009 respectively. Accused Sunil kept evading arrest. He was later arrested by Punjab Police in a separate case on 22/11/2009. In his personal search, College I Card and examination admission card of deceased Nitika were recovered. During police custody remand, accused Sunil got recovered three live cartridges from his home. The said cartridges were allegedly taken away by accused Sunil from cartridge case/magazine of the pistol used in commission of murder of victim Nitika, and was recovered from the courtyard of Yashu's house.
2. The charge sheet was filed by IO for the offence under Section 302/120B/34 IPC and Section 25 Arms Act against accused persons. Upon completion of necessary formalities, the chargesheet was committed to this Court. After hearing detailed arguments, the court charged all the accused persons for the offence under Section 302/120 B IPC for committing murder of victim Nitika between 14/09/2009 and 15/09/2009 in pursuance of criminal conspiracy to murder her. Accused Sunil was additionally charged for the offence under section 25 Arms Act for possessing three live cartridges, that he got recovered from his home during police custody remand. Accused Yashu was also additionally charged for the offence under section 25 Arms Act, for consciously and exclusively possessing in the courtyard of his house the FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 3/74 improvised pistol of 9mm calibre that was used to murder victim Nitika, as well as empty cartridge shell of the bullet that killed Nitika.
3. In answer to charge, the accused persons pleaded not guilty and claimed trial. To prove its case, the prosecution has examined total 29 witnesses. PW1 HC Suresh Kumar deposed that on 15.09.2009 at about 6.25 PM, while he was posted as duty officer at PS Nangloi, he received a Rukka sent by ASI Rampal through Ct. Rajesh, on the basis of which he registered the present FIR Ex.PW1/A and made endorsement on Rukka Ex.PW1/B. After registration of FIR, copy of FIR alongwith original Rukka was handed over to Inspector Rajbir Singh Malik through Ct. Rajesh. Copies of FIR was sent to Ld. MM, Joint CP of Southern Range, DCP West, Addl. DCP 1 st and 2nd, DCP PCR and to ACP Vikas Puri through special messenger Ct. Subhash vide DD No. 39 Ex.PW1/C in which Bandi of the FIR was also made. The Kayami of the FIR was also made vide DD No. 38 Ex.PW1/D.
4. PW2 HC Devender, Photographer Crime Team deposed that on 15.09.2009, he alongwith SI Kuldeep Singh, Incharge Crime team and other staff members reached at the spot, i.e., plot at Gugawala Johar Mundka where they saw one pistol and empty cartridge case/magazine lying in the Aangan FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 4/74 (courtyard). A female dead body was lying in pool of blood in the room. In the plot a Ford Icon car and one Bajaj Motorcycle were parked and several liquor bottles were also lying. One empty cartridge shell was lying near the dead body. He took the photographs Ex.PW2/56 to Ex.PW2/110 at the spot from different angles including those of the dead body. Negatives of the photographs are Ex.PW2/1 to Ex.PW2/55.
5.(a) PW3 Mr. Vijender Singh deposed that on 14.09.2009 at about 9.00 AM, as his daughter Nitika aged about 21 years, student of B.A. final year stepped out to go to Aditi college, Bawana he went to close the gate of his house. While closing the gate he noticed that accused Yashu and Sunil were standing in front of nearby grocery shop of Sunil. In the meantime, accused Vineet came there in white colour Swift car bearing No. 3335 and all of them started talking and he went inside his house. He deposed that he became worried as his daughter did not return from college till 4.00 PM whereas she used to return by 3.003.30 PM. He was at home at that time and he and his family started searching as Nitika did not return till 6.00 PM but no clue was found. He deposed that his younger brother Kuldeep got a missing report recorded at PS Bawana as he did not find any whereabouts of Nitika despite search. Since no whereabouts of his daughter were known, he became suspicious upon accused Yashu, Sunil and Vineet as he saw them standing FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 5/74 together when his daughter left for college.
5.(b) On 15.09.2009 at about 2.30 PM he received a telephone call on his mobile No. 9810535131 from mobile No. 9255785505 that Yashu S/o Rajbir had shot his daughter (teri lakdi ko goli maar di hai) and her dead body was being disposed of (uski dead body Yashu ke dost or uske gharwalon ne thikane laga di hai). When PW3 insisted to know his name, the caller told his name as Vikram Singh, speaking from Kurukshetra. He informed all these facts including said mobile number at 100 number, upon which PCR came to his house and he alongwith PCR went to spot, i.e., Yashu ka Makan in his neighbourhood as the caller had told that his daughter was shot at the said house. In the meantime, local police also reached there. The main gate of the house/premises was found locked, entangled with iron chain. Police arranged hammer, started breaking lock but same could not be broken, however, the chain was broke and iron door opened. When they entered the courtyard of the premises from the gate, they saw one magazine (cartridge case) was lying with the pistol there. After opening the premises, they went inside where in front courtyard of the premises there was a tinshed for keeping buffaloes and some bhusa (animal fodder) was lying near the tinshed. The animal fodder was searched but nothing was found in it. He deposed that one car of white / cream FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 6/74 colour, perhaps of Ford company was parked there. It was a builtup house having some rooms in the premises. He deposed that after police broke open the lock in the presence of 400500 public persons, he alongwith police staff and 34 public persons entered inside the house where foul smell was coming. Inside the house, there was another lock on a room which was broken. From the room came a gust of foul smell (Badboo ka jhoka aaya). He deposed that in the room dead body of his daughter Nitika was found wrapped in black polythene, wearing wrist watch in her hand and having her head in South direction and feet in North direction. The dead body was seen shot in the tample near the eye and one of the eye had come outside. The black polythene was covered with a bed sheet which was smeared with blood and there is some blood on the plastic sheet also. He deposed that perhaps one empty cartridge was lying there and thereafter he could not bear the presence on the scene after seeing his young daughter lying dead. Police carried out proceedings at the spot. He deposed that on 16.09.2009, after conducting postmortem, dead body was handed over to him and his statement was recorded by the police.
5.(c) He deposed that he had some land dispute with accused Sunil and his family and he also made 100 number when accused started raising foundation on the said disputed land. He was not aware of any other motive of accused persons as his daughter was killed by accused Yashu with the help of accused FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 7/74 Sunil and Vineet as he saw them together on 14.09.2009. He deposed that the shop of Sunil remained closed in the evening, whereas, house of accused Yashu where incident occurred was also closed in the evening, although they all were often seen by him sitting together there. His daughter was wearing jeans, top and sandal when she went to her college on 14.09.2009 in the morning. He deposed that he could identify the clothes as the same were found worn by her when he saw her dead body and also identified his daughter lying in pool of blood in photographs Ex.PW2/81, Ex.PW2/82, Ex.PW2/88, Ex.PW2/91, Ex.PW2/92 and Ex.PW2/98. He deposed that his daughter told him in the morning that she would come late in the evening hours as she had to fill some form for second year examination and carried second year documents as compulsorily required. On being shown the admission ticket by Ld. Addl. PP, having photograph of her daughter / deceased, he admitted the same as those carried by his daughter when she left for her college in the morning. Maruti Swift car bearing registration number DL8CNB3335, which was brought and parked by accused Vineet near the shop of accused Sunil in morning of 14.09.2009 was identified as Ex.P1, blood stained clothes and lady's sandles are as Ex.P2 (colly.) and the Bajaj motorcycle HR12L4031 as Ex.P3, bullet lead piece found lying at the spot as Ex.P4 (subsequently denied by PW3 to having seen it), empty cartridge shell lying at spot as Ex.P5 and pistol recovered from the courtyard as Ex.P6.
FIR No. 375/2009PS Nangloi State Vs. Yashu & Ors. Page 8/74
5.(d) He was cross examined at length by learned defence counsels related to his improved version over statement recorded under section 161 Cr.PC Ex. PW3/DA. He was confronted with the statement Ex. PW3/DA in which he had not stated about presence of accused persons near his home on 14.09.2009 and regarding suspicion upon them for disappearance and murder of his daughter. He replied that he had not told the police in call made at 100 number that his daughter had shot herself. He denied the suggestion that he had no land dispute with accused Sunil. He was confronted with the statement Ex. PW3/DA in which he had not stated that in the evening of 14.09.2009 the shop of accused Sunil was unusually closed, although the accused persons could be often seen sitting together at the shop in the evenings. He denied the suggestion that accused Yashu had been residing with his family at Rohtak, Haryana since the year 2008, and not at Mundka in the house in which dead body of Nitika was discovered.
6. PW4 SI Mahesh Kumar, Draughtsmam, Crime Team deposed that on 05.11.2009, at the instance of Inspector Rajbir Singh Malik, he visited the place of occurrence i.e.house of Yashu, Mundka and took rough notes and measurement of the spot. Thereafter, on 20.11.2009 on the basis of rough notes and measurement, he prepared scaled site plan Ex.PW4/A and thereafter destroyed the rough notes and measurements.
FIR No. 375/2009PS Nangloi State Vs. Yashu & Ors. Page 9/74
7. PW5 SI Kuldeep Singh, Incharge Mobile Crime Team deposed that on 15.09.2009, on receipt of information from Control Room, he alongwith photographer HC Devender, fingerprints expert HC Amit Kumar and dog handler reached at the plot of late Rajbir in front of Googa Johar (pond), Mundka, Delhi where he inspected the scene of crime and prepared report Ex.PW5/A. Thereafter, IO was directed to collect the exhibits from the spot. HC Devender clicked the photographs of the spot.
8. PW6 Dr. Mahipal Singh, CMO, SGM Hospital deposed that on 17.09.2009, he medically examined one Vineet @ Kala brought by HC Rajender and opined that no fresh external injuries or bleedings was seen clinically and that Vineet @ Kala was capable of performing sexual act. He prepared report Ex.PW6/A. On 21.09.2009, he medically examined one Yashu brought by HC Rajender and opined that no fresh external injuries or bleedings was seen clinically and that Vineet @ Kala was capable of performing sexual act. He prepared report Ex.PW6/B.
9.(a) PW7 Kuldeep Singh deposed that he had visiting terms with his parental aunt (Bua) Jagmati who was married to Bhim Singh at Mundka village and called him telephonically to come to her home as she wanted him to help construct a veranda. He reached their village within 23 days in FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 10/74 November, 2009 but he did not remember the date of his arrival. He deposed that he saw nothing during his visit at the house of his aunt. He deposed that police met him for enquiry but he did not know the purpose. He again stated that police took him forcibly (otha kar le gai) to PS, took his signatures on blank papers and released him after three days. He deposed that he was produced before the Magistrate for statement where he stated whatever police directed him to state. He deposed that Sunil was his cousin brother / son of his Bua Jagmati but he did not know accused Yashu and Vineet @ Kala. During identification, he only identified accused Sunil being his cousin brother.
9.(b) PW7 was cross examined by Ld. Addl. PP as a hostile witness in reference to his earlier statement recorded on oath under Section 164 Cr.PC Mark 7A. In cross examination, PW7 stated that he had studied upto 7 th class, however, he could not read and write Hindi and English language. PW7 admitted that he told to the Magistrate that he would depose voluntarily without any pressure and accordingly his statement was recorded by the Magistrate on Oath, in a room where no police official was present. He denied the suggestion that he deposed voluntarily before the Magistrate. He voluntarily stated that he deposed as per direction of police. He admitted that his statement was recorded by police on 17.09.2009. He stated that he came to visit house of his parental aunt in the month of September but was not sure FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 11/74 about the date whether it was 7th or 8th. He denied that he stated to the police that on 14.09.2009, his cousin Johny did not ask him to bring rickshaw from the plot or that Sunil was residing as tenant of Yashu, that on hearing Johny he went to the plot of Yashu, that he saw there one white colour car in which Yashu was sitting with a girl on back seat, which was driven by Vineet, that car went inside the plot, that on seeing him Sunil asked him why he came to plot and directed to go to home while he was holding a pistol in his hand. He denied the suggestions that he told to the police that he came back to the house of his Bua and thereafter at about 2.30/3.00 PM, he again went to said plot and saw Sunil, Yashu and Vineet @ Kala talking with each other and they were sweating. He denied that Sunil asked him to call Bhola and take away articles and animals from Yashu's plot to the appropriate place, and get the house locked. He further denied that he told the police that he left the place after instructing Bhola and again came back there and found that Bhola had already locked the house and went away with his luggage. He denied the suggestions that he saw accused Yashu, Vineet and Sunil at the spot or that Yashu was sitting with a girl on back seat of white colour car driven by accused Vineet or that Sunil met him at the spot having pistol in his hand and asked him to go away from there or that when he again reached at the spot at about 2.30 3.00 PM, all accused persons were present there in sweating condition, talking to each other. He further denied the suggestions that the FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 12/74 accused persons, i.e., Yashu, Vineet and Sunil were the same persons whom he saw at the spot on 14.09.2009 in morning and evening, that all the buffaloes etc of his aunt were tethered at Yashu's plot. He deposed that he had no knowledge if Yashu's plot was taken on rent by Sunil or his family or that police recorded his statement on 18.09.2009. He deposed that he did not see if the girl shown in photo Ex.PW2/92 was sitting in the car with Yashu. He denied the suggestion that police had shown him photograph of a girl on 18.09.2009 and he identified the girl who was sitting in car with accused Yashu. He further denied the suggestions that in order to save Sunil being his cousin, he deposed falsely and he had intentionally not identified accused Yashu and Vineet.
10.(a) PW8 Dr. Manoj Dhingra, MOIC, SGM Hospital deposed that on 16.09.2009 he alongwith Dr. Deepak conducted postmortem examination of dead body of 21 years female named Nitika sent by Inspector Rajbir Malik with alleged history of gunshot injury. The deceased was last seen alive on 14.09.2009 at 8.00 AM.
10.(b) On examination, he observed external injuries of firearm entry wound 3x2 cm oval shape in left temporal region of head, 2 cm lateral and downward from lateral angle to left eye 2.5 cm medially and forward from left ear FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 13/74 abrasion collar around the wound, partial eccentric muzzle impression present on medial side of the wound. Fracture of temporal bone under entry wound, puncture of dura under it with brain matter coming out, blackening and soot particle present with brain matter, left temporal lobe brain matter in shreds, fracture of anterior cranial fossa present from left to right side. Fracture of roof of left eye present with left eye protruding out. Track moving from left to right, above to downwards towards right temporal region. Exit wound 1 x .8 cm with irregular margin protruding outwards, present over right temporal region, present 2.5 cm laterally from lateral end of right eye, 3 cm medially from right ear.
10.(c) Scratch abrasion soft red 7 X 5 cm over flexor aspect of left forearm 3 cm above wrist joint. Scratch abrasion soft red 9 X 7 cm over front of abdomen 2cm above umblicus and abrasion 5 X 3 cm soft red present over back of abdomen on right side 4 cm from mid line.
10.(d) He further deposed that dead body had internal injuries of effusion of blood over left parietooccipital region on reflecting the scalp, linear fracture of occipital bone, temporal bone, anterior cranial fossa present going out from firearm entry wound, fracture middle cranial fossa present, contused necrosis of left fronto temporal lobe present, defused SDH and patchy SAH seen. He FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 14/74 deposed that the death was caused due to cranio cerebral damage consequent to firm arm injury. He further deposed that total 10 inquest papers were prepared and articles, i.e., clothes, blood viscera sealed in common salt, vaginal swab, buccal swab, anal swab, pubic hair, blood gauze piece and nail from both hands were sealed and handed over to IO.
10.(e) In crossexamination PW8 admitted that the time since death was not mentioned in the PM report. He voluntarily explained that this fact was already mentioned in alleged history in the report. He replied that when postmortem examination was done the rigor mortis was slightly present on the body. The usual duration of rigor mortis is 24 to 36 hours.
11.(a) PW9 Ct. Resham Singh deposed that on 15.09.2009 on receipt DD No. 34A, which he handed over to ASI Rampal. He went alongwith ASI Rampal and Ct. Rajesh to the house of Yashu at Gugga Johar, Mundka which was found locked. He deposed that magazine and pistol were visibly lying in the courtyard, from outside the gate. After breaking locks of the gate they entered inside where they smelt foul smell from one of the room that was locked from outside, upon which its lock was broken and they found that a dead body was lying in the room. He deposed that witness Kuldeep met them at the spot. He deposed that he was sent outside to control the crowd. The FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 15/74 senior officers reached there and IO recorded his statement.
11.(b) On 17.09.2009, he alongwith HC Rajender and secret informer reached at Phirni Road, Mundka Bakkarwala Chowk where on pointing out of secret informer, they apprehended accused Vineet @ Kala who made his disclosure statement Ex.PW9/A and at about 5.00 PM, accused Vineet @ Kala led them near to his house from where the Swift car bearing No. DL8CNB3335 was got recovered vide memo Ex.PW9/B. The accused was arrested and personally searched vide memos Ex.PW9/C and Ex.PW9/D. Thereafter, accused led them to bus stand near Hirankudna Mor and disclosed that on 14.09.2009, he alongwith accused Yashu reached there (pointing out memo Ex.PW9/E) in Swift car and Nitika was taken by them in the same car. Thereafter, accused Vineet led them to the place of occurrence where IO prepared pointing out memo Ex.PW9/F. The accused was taken to PS from where he was taken to SGM Hospital where he was medically examined and the sealed parcels were seized by IO vide seizure memo Ex.PW9/G. He deposed that his statement was recorded by IO.
11.(c) On 21.09.2009 at about 4.004.15 PM, he along with IO, HC Rajender, HC Subhash and Kuldeep reached under the bridge, Peeragarhi where on the pointing of Kuldeep Singh, accused Yashu was apprehended and he made FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 16/74 disclosure statement Ex.PW9/H. He deposed that accused Yashu led them to bus stand near Hirankudna Mor and on his pointing, pointing out memo Ex.PW9/I was prepared by IO. Thereafter, accused Yashu led them to the place of occurrence and at his instance, IO prepared pointing out memo Ex.PW9/J. The accused Yashu was arrested and personally searched vide Ex.PW9/K and Ex.PW9/L. Statement of this witness was recorded by the IO.
11.(d) On 04.12.2009, accused Sunil was medically examined at SGM hospital and sealed pullandas received from SGM hospital were seized vide memo Ex.PW9/M. IO recorded statement of this witness. As the Swift car No. DL 8CNB3335, Ex.P1 had already been exhibited, the identity of the car was not disputed qua testimony of this witness.
12.(a) PW10 HC Ravinder Kumar deposed that on 15.09.2009 he was posted as MHC(M) and on that day Inspector Rajbir Singh Malik had deposited 12 sealed parcels sealed with RS and one motorcycle bearing No. HR12L4031 in Malkhana vide entry No. 5314 Ex. PW10A made in Register No.19. On 16.09.2009, Inspector Rajbir Singh Malik deposited sealed parcel containing viscera of deceased with sample seal of 'SGMH Mortuary Mangol Puri Delhi' alongwith 8 other sealed parcels relating to the deceased with same seal, in Malkhana vide entry No. 5315 Ex.PW10/B. On 17.09.2009, Inspector FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 17/74 Rajbir deposited a car No. DL8CNB3335, three sealed parcels sealed with the seal of SGMH NCT Delhi, stated to be containing blood sample, underwear and pubic hair, sample seal and articles of personal search of accused Vineet @ Kala in Malkhana vide entry No. 5323 Ex.PW10/C in Register No. 19. On 21.09.2009, Inspector Rajbir Singh deposited three sealed parcels sealed with the seal of SGMH qua accused Yashu alongwith sample seal in Malkhana vide entry No. 5336 Ex.PW10/D in Register No.19. On 04.12.2009, Inspector Rajbir Singh deposited a sealed parcel sealed with the seal of SGMH qua accused Yashu alongwith sample seal in Malkhana vide entry No. 5464 Ex.PW10/E in Register No.19. On 05.12.2009, Inspector Rajbir Singh again deposited a sealed parcel sealed with the seal of RSM, stated to be containing three live cartridges, in Malkhana vide entry No. 5465 Ex.PW10/F in Register No.19.
12.(b) Three sealed parcels, sent to FSL, Rohini through Ct. Balram vide RC No. 148/21/09 on 30.10.2009, were returned with two FSL report on 06.08.2010, for which entries were made at Sr. No. 5314 Ex.PW10/G in Register No. 19.
12.(c) On 08.10.2009, motorcycle was released to Superdar Poonam Rohilla and entry Ex.PW10/H was recorded in this regard. On 29.10.2009, viscera of FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 18/74 the deceased alongwith sample seal sent to FSL, Rohini vide RC No. 144/21/09 through Ct. Ballu Ex.PW10/J. On 29.10.2009, all the 19 parcels were sent to FSL, Rohini through Ct. Ballu vide RC No.143/21/09 and made entry Ex.PW10/K in this regard. On 17.06.2010, the parcel of viscera sealed with seal of FSL APS Rohini was received in Malkhana alongwith report through Ct. Manu and entry in this regard in Register No. 19 is Ex.PW10/L. On 17.06.2010, all the 19 parcels sealed with seal of DVS FSL Delhi, was received in Malkhana alongwith report through Ct. Manu and entry in this regard in Register No. 19 is Ex.PW10/M.
12.(d) On 12.10.2009 after taking photographs, white colour swift car bearing No. DL8CNB3335 was released to its owner Deepak Rana and entry in this regard is Ex.PW10/N.
12.(e) On 07.12.2009, a sealed parcel, sealed with the seal of SGM NCT Delhi sent to FSL, Rohini through HC Subhash vide RC No. 160/21/09 making entry at Sr. No. 5464, was returned from FSL on 17.06.2010, sealed with the seal of DS FSL Delhi alongwith report through Ct. Manu, for which entries were made at Sr. No. 5464 in Register No. 19 Ex.PW10/O. On 07.12.2009, a sealed parcel of three cartridges, sealed with the seal of RSM, sent to FSL, Rohini through HC Subhash vide RC No. 159/21/09 making entry at Sr. No. 5465, FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 19/74 was received back from FSL on 28.01.2010, sealed with the seal of FSL NPW Delhi alongwith report at Malkhana for which entries were made at Sr. No. 5465 in Register No. 19 Ex.PW10/P. Register no.19 alongwith Register No. 21 was produced in the court and entries qua RCs which was exhibited as Ex.PW10/Q1 to Ex.PW10/Q5.
13. PW11 Ct. Rajesh deposed that on 15.09.2009 he was on emergency duty with ASI Rampal and at about 3.30 PM on receipt of copy of DD No. 34A from Ct. Resham Singh he alongwith ASI Rampal reached at plot of Yashu near Jhod, Mundka village and found that the said plot was locked along with iron chain and a pistol and magazine were visibly lying inside the plot. He further deposed that ASI Rampal opened the gate by breaking the chain with hammer and they entered the plot. There were 23 room inside out of which foul smell was coming from a locked room. The lock was broken and dead body of a girl was found lying in a black polythene which was identified by one Vijender Singh as his daughter Nitika. He deposed that due to huge crowd, ASI Rampal directed him not to allow anyone to come inside. At about 6.00 pm, ASI Rampal sent him to PS Nangloi with one Rukka for registration of FIR and he came back at the spot at about 7.45 PM and handed over the original Rukka and copy of FIR to Inspector Rajbir Singh who was also present there.
FIR No. 375/2009PS Nangloi State Vs. Yashu & Ors. Page 20/74
14. PW12 HC Dinesh deposed that on 15.09.2009 at about 4.00 pm on getting information of a female dead body, he reached at the spot, i.e., Guga Jhod (pond), Mundka and found other police officials of his PS and a dead body was lying in the 'Ahata' of the house located near the pond. He was directed to control the public persons gathered outside the house. He deposed that after sometime, dead body of girl was handed over to him and as per direction, he took the dead body to mortuary, SGM Hospital in a govt. tempo and deposited it there. Dead body was preserved and on the next day, post mortem examination was conducted. The doctor handed over three plastic boxes, one plastic bag and four envelopes sealed with the seal of SGM Hospital alongwith sample seal to the IO which all are seized vide seizure memo Ex.PW12/A. The doctor has also handed over viscera box sealed with the seal of hospital and sample seal which was seized vide seizure memo Ex.PW12/B.
15. PW13 Ct. Subhash deposed that on 15.09.2009, duty officer handed over to him three envelopes containing copy of FIR for delivering the same to DCP, West, Joint CP and Ilaka Magistrate at their residences and he accordingly delivered the same.
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16.(a) PW14 Kuldeep deposed that on 14.09.2009, his niece Nitika left for her college situated at Bawana. At about 2.30/3.00 PM when he was passing through the plot of accused Yashu, the gate of which was open at that time, he saw accused Yashu, Sunil and Vineet standing near one white colour Ford Ikon car talking each other. On seeing him coming, they turned their faces to opposite direction. One Kuldeep Singh, relative of accused Sunil, was also standing with them. He deposed that at about 6.00pm, his brother Vijender Singh told him that Nitika had not returned from the college. They made every effort to search her and at about 9.00 PM, he lodged a missing report at PS Bawana and, when he was coming back to his house at 10:00 pm, he noticed that gate of plot of Yashu was locked which usually remained open. He deposed that they searched whole night and on the next day, at about 2.30 PM, his brother Vijender informed him that he received a telephonic call from Kurukshetra that Nitika had been murdered by Yashu in his plot who alongwith his associates were in process to dispose off the dead body. His brother called PCR upon which police visited the plot of Yashu and dead body of Nitika was recovered. He deposed that on 21.09.2009, he visited PS Nangloi for enquiry where IO Inspector Rajbir Malik told him about information of arrival of accused Yashu near Peera Garhi Pul and he joined investigation with police party and reached went near Peera Garhi bridge where he saw accused Yashu standing underneath the Peera Garhi bridge. At his pointing out, FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 22/74 accused Yashu was apprehended by the police party and after interrogation, he was arrested and personally searched vide memos Ex.PW9/K and Ex.PW9/L respectively. Disclosure statement Ex.PW9/H of accused Yashu was recorded.
16.(b) PW 14 replied that he had not raised suspicion against anyone in the missing report lodged at PS Bawana. PW 14 replied that on 14/09/2009 Nitika left home for college in his presence. He replied that he was shocked to see the dead body of his niece Nitika. He replied that police had not recorded his statement on 15/09/2009. He denied the suggestion that he and his brother Vijender had intentionally implicated the accused persons as culprits through their statements recorded on 16/09/2019. He replied that in Yashu's house there were about 5-6 rooms out of which 3-4 rooms were in possession of accused Sunil, whereas, 2-3 rooms were in possession of accused Yashu. He denied the suggestion that accused Yashu had left that house in the year 2006 and that the said house was lying vacant since 2006. PW 14 denied the suggestion that accused Sunil was not in possession of the plot of accused issue. He denied the suggestion that accused Sunil was not a tenant of accused Yashu in the said plot.
17.(a) PW15 HC Subhash deposed that on 15.09.2009, accused Sunil was formally arrested Ex.PW15/A with court permission and made disclosure FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 23/74 statement Ex.PW15/B. He further deposed that after taking two days PC remand of accused Sunil, they returned to PS where his statement was recorded by IO. On next day, accused Sunil was taken out from lockup who led them to his house situated at village Mundka from where he got recovered three live cartridges from the almirah. IO after preparing sketch of cartridges Ex.PW15/C, put them in a pullanda, sealed with seal of RSM and seized vide seizure memo Ex.PW15/D. He also deposed that on identification of accused, he prepared memo Ex.PW15/E and Ex.PW15/F and IO recorded his statement, thereafter, they came back to PS and case property was deposited in Malkhana.
17.(b) On 17.12.2009, on the directions of IO, he collected two sealed parcels from Malkhana alongwith papers and deposited the same with FSL, Rohini vide RC No. 359/21/09 and 360/21/09 and receipt of deposit was handed over to the MHC(M).
18. PW16 Ct. Balu Ram deposed that on 29.10.2009, on the direction of IO, he collected total 19 sealed pullandas sealed with different seals and sample seals from MHC(M) vide RC No. 143/21/09 and 144/21/09 and deposited the same with FSL, Rohini. Deposit receipt was handed over to MHC(M). He stated that case property had not been tampered with until remained in his possession. His statement was recorded by IO. FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 24/74
19.(a) PW17 ASI Ram Pal Singh deposed in corroboration to testimony of PW9 Ct. Resham Singh and PW11 Ct. Rajesh regarding reaching the spot upon receipt of DD No. 34A, the circumstances observed there and arrival of Mobile Crime Team at the spot. He further deposed that he made endorsement on DD No. 34A Ex.PW17/A, prepared Rukka Ex.PW17/B and handed over to Ct. Rajesh for registration of FIR at PS Nangloi. He made request in the Rukka that further investigation be assigned to Inspector Rajbeer Malik, the then SHO, PS Nangloi. He further deposed that two bedsheet with which the dead body was covered, one black colour plastic polythene on which dead body was lying, one lady's bag lying near the dead body and one empty shell which was found after removal of plastic sheet were converted into separate sealed pullandas and seized vide seizure memo Ex.PW17/C. The blood lying on floor and earth control were lifted and kept in a separate plastic jars. Sketches of pistol and magazine lying in 'Aangan' of the spot were prepared Ex.PW17/D and Ex.PW17/E and sketch of empty cartridge was prepared vide Ex.PW17/F. The total length of pistol was 21 cm, length of barrel 15 cm and length of butt was 12 cm. The length of magazine was 11.5 cm. The total length of empty cartridge was 2 cm and diameter was 2.2 cm, the sketch of which was Ex.PW17/F and same was kept in a plastic jar and seized vide seizure memo Ex.PW17/G. Dead body was shifted to SGM Hospital mortuary for post FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 25/74 mortem purpose. The lady's purse lying near the dead body found containing I Card of Aditi College, 7 papers, Cash of Rs.56/ and one comb was seized vide seizure memo Ex.PW17/C. The broken chain of main gate and broken lock of room were seized vide seizure memo Ex.PW17/H and Ex.PW17/J. The ladies wrist watch found on the hand of dead body was seized vide seizure memo Ex.PW17/K and the motorcycle bearing registration No. HR12C4031 standing at the plot was seized vide seizure memo Ex.PW17/L.
19.(b) He had identified the empty cartridge case Ex.P5, pistol with magazine as Ex.P6, bed sheet as Ex.P8, lock make Harrison with broken chain, lock make Lark Renew in broken condition and a lady's wrist watch was Ex.P9, Ex.P10 and Ex.P11, black colour lady's purse containing I card of Aditi college and some other documents Ex.P12 and empty cartridge as Ex.P13.
20. PW18 Sh. Ashu Garg, the then Ld. JSCCcumASCJ deposed that on 18.09.2009, as MM03, he recorded statement of witness Kuldeep Singh under Section 164 Cr.PC Ex.PW18/A. He deposed that on the application Ex.PW18C of IO, copy of proceedings u/s 164 Cr.PC Ex.PW18B had been supplied to him.
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21. PW19 Ms. Poonam deposed that she had got released the motorcycle No. HR12C4031 on Superdari on furnishing Superdaginama Ex.PW19/A. Photographs of the same are Ex.PW19/B to Ex.PW19/D.
22. Sh. Ashutosh Aggarwal, Section Officer, Aditi Mahavidhyalaya was also inadvertently examined as PW19. He deposed that on application of IO/SHO for verification of Admission Ticket/ Roll No. 3190148, he verified the same with his record, as per which Nitika Lakra was student of Aditi Mahavidhalaya and prepared report in this regard Ex.PW19/A.
23. PW20 Dr. Ish Kumar deposed that on 01.12.2009 one patient namely Sunil Kumar was examined by Dr. Deshratha (JR) who prepared the MLC Ex.PW20/A under his supervision.
24. PW21 HC Rajender Singh deposed in corroboration to deposition of PW9 Ct. Resham Singh regarding investigation dated 17.09.2009 qua arrest of accused Vineet. He also deposed in sync with deposition of PW9 Ct. Resham Singh regarding investigation dated 21.09.2009 qua arrest of accused Yashu. He further deposed that accused Yashu was taken to SGM hospital for medical examination by him and PW9 Ct. Resham Singh where his blood sample, undergarments and pubic hairs were taken by concerned doctor and sealed FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 27/74 with the seal of hospital. All the pullandas and hospital seal were handed over to this witness who returned to PS and handed over the same to IO Inspector Rajbir Singh who seized it vide seizure memo Ex.PW21/A.
25. PW22 Sh. Rajesh Gautam, Assistant Director, National Institute of Open Schooling deposed that as per their record, Nitika Lakra was studying at National Institute of Open Schooling which he verified through endorsement on I card Ex.PW22/A.
26. PW23 HC Balram deposed that on 30.10.2009, he collected three sealed pullandas from MHC(M) vide RC No. 148/21/09, deposited the same at FSL, Rohini and receipt of the same was deposited with MHC(M). He also deposed that no tampering took place while the pullandas remained in his possession.
27. PW24 SI Pawan Kumar, CIS Staff, Mohali, Camp Kharar, Punjab deposed that on 22.11.2009 ASI Charan Singh received secret information that Sunil Kumar, Sandeep Kumar, Sukhvinder Singh and Harvinder Singh who used to get financed the vehicles by preparing forged documents, were present opposite park near YPS Chowk and they could be apprehended if raid was conducted. He deposed that ASI Charan Singh sent HC Praveen to got case FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 28/74 registered at PS PhaseVIII. Thereafter, he alongwith HC Harminder Singh and HC Supinder Singh went to YPS Chowk in govt. vehicle PB65E0891 driven by Ct. Suresh Kumar. On seeing them, Sandeep sat on the driver seat of a Verna car and accused Sunil sat beside Sandeep, however, both were apprehended by him and HC Harminder Singh. Accused Sunil was having pistol in his right hand at that time for which ASI Charan Singh asked him to conduct separate proceedings regarding recovery of pistol. On unloading, pistol was found having six live cartridges. He conducted separate proceedings and prepared relevant documents including sketch and seizure memo etc and sealed the pullanda of pistol. Upon personal search of accused Sunil, one I card and an admission card for the year 200607, in the name of Neetika Lakra were recovered from left side pocket of his wearing shirt. Attested copy of personal search memo is Ex.PW24/A. Thereafter, through Ct. Suresh Kumar, case was got registered at PS PhaseVIII u/s 25 Arms Act vide FIR No. 234/2009. Thereafter, he handed over the custody of accused Sunil to ASI Charan Singh who arrested the accused Sunil in case FIR No. 233/2009. PW24 identified the admission ticket and Identity card of National Institute of Open Schooling, which were in the name of Neetika Lakra as the same that were recovered from the possession of accused Sunil during personal search conducted by him. Copy of Admission ticket is Ex.PW24/B. FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 29/74
28. PW25 Ms. Sheetal Aneja, Addl. Ahlmad from the court of Ms. Harpreet Singh, JMIC, Mohali, Punjab had produced the original record of case FIR No. 234/2009, PS PhaseVIII, Mohali, Punjab, which, on comparison with the photocopies of relevant documents available on judicial file of present case, was found correct. The copy of personal search memo of accused Sunil Ex.PW24/A, certified copy of Register No. 19 pertaining to FIR No. 233/2009 and 234/2009, DD No.18 dated 22.11.2009, arrest memo of accused Sunil in case FIR No. 234/2009 (arrival entry of case FIR No. 233/2009 and 234/2009 Ex.PW25/A. The judicial record was also found containing the original admission ticket in the name of Nitika Lakra, daughter of Shri Vijender Lakra.
29. PW26 ASI Bhupender Singh, SAS, PS PhaseVIII, Mohali, Punjab had produced the summoned record (police file) of case FIR No. 233/2009, PS PhaseVIII, Mohali, Punjab and attested copy of FIR no. 233/2009 and 234/2009, PS PhaseVIII, Mohali, Punjabi. He also deposed about recoveries made in the abovementioned case FIRs from accused Sunil Kumar (one of the accused herein) and his associates Sukhvinder Singh and Harvinder Singh.
30. PW27 Mr. Gulshan Deep Singh, Ahlmad from the court of Ms. Bisman Maan, Ld. JMIC, Mohali, Punjab produced the original record of FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 30/74 case FIR No. 233/2009, PS PhaseVIII, Mohali, Punjab, which, on comparison with the photocopies of relevant documents available on judicial file of present case, was found correct. The copy of chargesheet Ex.PW27/A, Rukka Ex.PW27/B, information regarding vehicle No. CH03M4171 Ex.PW27/C, Memo regarding vehicle No. CH18(T) 2758 Ex.PW27/D, Memo regarding vehicle No. PB65F4484 Ex.PW27/E, Memo regarding vehicle No. CH03M 4171 Ex.PW27/F, information regarding vehicle No. CH18(T) 2758 Ex.PW27/G, entry made by SI Pawan at PS PhaseVIII Ex.PW27/H, affidavit regarding sale of vehicle No. CH03M4171 Ex.PW27/I and detail of vehicle No. PB65F 4484 Ex.PW27/J.
31.(a) PW28 IO ACP Rajbir Malik deposed that on 15.09.2009 at about 3.25 PM, the duty officer informed him about PCR call regarding a dead body lying in the house of one Ishu (accused Yashu) near Gugga Johad (canal). The duty officer made entry in this regard in Rojnamcha register vide DD entry No. 34A and marked the inquiry to ASI Ram Pal, who alongwith Ct. Rajesh reached the spot. PW28 deposed that he also reached the spot where he met complainant Vijender and his brother namely Sh. Kuldeep. At the spot, he found an iron gate locked with chain and he saw, over the grill of the gate, one pistol and magazine lying in Baramdha (courtyard). He deposed that when he tried to open the lock of the gate, the chain broken up and he alongwith the FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 31/74 staff entered the house of Ishu. He found a motorcycle bearing registration no. HR12L4031 in the Baramdha and a locked room attached to the Baramdha, whose lock was broken open.
31.(b) In the room, they found dead body of a female lying in supine condi tion. He deposed that the head of the deceased was towards North and the legs were towards South. Complainant Vijender identified the deceased as his daughter Nikita. The crime team reached the spot and inspected the spot with him. The crime team members tried to develop the chance print from the pistol and magazine, but it could not be developed. He drew sketches of pistol and magazine vide memos Ex. PW17/D and Ex. PW17/E respectively, prepared their pullandas, sealed them with the seal of RSM and took into possession vide seizure memos Ex. PW28/A. He prepared site plan of the spot vide memo Ex. PW28/B. The broken lock with chain of the main gate/iron gate and bro ken lock of the room were taken into possession by preparing pullandas and were sealed with the seal of RSM. The pullandas were taken into possession vide seizure memo Ex. PW17/H and Ex. PW17/J respectively. He lifted blood near from the dead body in a gauge and took into possession the blood stained earth control, earth control, plastic sheet as well as two blood stained bed sheets on which the body was lying and bag (ladies) of the deceased containing its personal articles including comb, bangles etc. He took into possession the FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 32/74 said articles by preparing separate pullandas, sealed them with the seal of RSM and seized them vide memo Ex. PW17/C. He also seized the motorcycle vide memo Ex. PW17/L. He deposed that ASI Ram Pal endorsed DD No.34A, pre pared rukka and got the FIR registered through Ct. Rajesh. He took into pos session the wearing wrist watch of the deceased, sealed it with the seal of RSM and seized the same vide memo Ex. PW17/E. He deposed that there was entry and exit bullet wound on the temple of deceased. He deposed that at the spot he found an empty cartridge by the side of deceased and a bullet lead piece un der the bed sheet on which the body was lying. The sketch of the empty car tridge was prepared vide memo Ex. PW17/F. After preparing the pullandas of cartridge lead piece and empty cartridge, the same were sealed with the seal of RSM and were seized vide memos Ex. PW17/G. He deposed that in the mean time, Ct. Rajesh returned to the spot and handed him over original rukka and copy of FIR. He recorded statement of witnesses/police officials. He deposed that the complainant and his brother were in shock and, therefore, did not give their statements on that day. He alongwith the staff reached PS and deposited the seized articles in Malkhana. He deposed that before leaving the spot, the dead body was sent to SGM Hospital through a constable.
31.(c) PW28 deposed that postmortem of the dead body was got conducted on 16/09/2009 at SGM Hospital. Before postmortem, he prepared the inquest re FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 33/74 port Ex. PW28/C. He recorded dead body identification statements Ex. PW28/D and Ex. PW28/E respectively and after postmortem, the dead body was handed over to relatives of the deceased.
31.(d) PW28 deposed that the concerned doctor in SGM Hospital handed over to him the exhibits in sealed condition vide seizure memo Ex. PW12/A and the doctor who conducted postmortem handed over him viscera of deceased in sealed condition which he seized vide seizure memo Ex. PW12/B. He recorded the statement of witnesses and deposited the exhibits in Malkhana. He deposed that he tried to apprehend the culprits.
31.(e) PW28 deposed that on 17/09/2009 he received secret information that accused Vineet was present at Bakkarwala Chowk and could be apprehended, if raided. He alongwith other staff members left PS. He deposed that he shared the secret information with 4/5 passersby but none agreed to join proceedings. He deposed that at the instance of secret informer, accused Vineet was appre hended. He interrogated accused Vineet, who confessed his involvement in the present case vide disclosure statement vide memo Ex. PW9/A, arrested him vide memo Ex. PW9/C and personally searched him vide memo Ex. PW9/D respectively. On next day, he produced accused Vineet before the Court and obtained three days PC remand against him to apprehend other coaccused per sons and for effecting recovery of case property.
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31.(f) PW28 deposed that pursuant to his disclosure statement accused Vineet led them to Hirankoodna Mod from where he alongwith his associate namely Yashu took deceased in a car to the spot. He prepared the pointing out memo Ex. PW9/E. Accused Vineet also pointed out the place of occurrence to which he prepared pointing out memo Ex. PW9/F. He deposed that at the instance of accused Vineet, car no. DL8CNB3335 which was used for taking the de ceased victim to the spot, was taken into possession from near the house of ac cused Vineet vide pointing out memo Ex. PW9/B. He got the medical exami nation of accused Vineet conducted at SGM Hospital. He deposed that at his request, the concerned doctor took into possession blood sample, pubic hair and under garments of the accused. The doctor prepared separate pullandas of the collected exhibits, sealed them with the seal of SGMH and handed them over to him, which he seized vide memo Ex. PW9/G. Thereafter, PW28 along with accused Vineet returned to PS, deposited the sealed pullandas in Malkhana and recorded statement of witnesses.
31.(g) PW28 deposed that on 18/09/2009 at his request Ex. PW28/F through application, statement U/s. 164 CrPC of Kuldeep was recorded by the Court and he was supplied with copy thereof on application Ex. PW28/G.
31.(h) PW28 deposed that on 21/09/2009 he received secret information that coaccused Yashu @ Ishu would come at Peeragari Chowk and could be ap FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 35/74 prehended, if raided. He deposed that in the meantime complainant Kuldeep also reached PS to know about progress of the case and he shared the secret in formation with Kuldeep and other staff members. He deposed that he along with complainant Kuldeep and other staff left PS to the spot and on the way to Peeragari he shared secret information with 4/5 passersby and requested them to join investigation but none agreed. He deposed that at about 04:00pm they reached Peeragari Chowk and at the pointing out of complainant Kuldeep, he with the help of other staff apprehended accused Yashu (correctly identified in Court by PW28), who already stood there. He interrogated accused Yashu, who confessed his involvement in the present case vide disclosure statement Ex. PW9/H. Accused Yashu was arrested vide arrest memo Ex. PW9/K and his personal search was conducted vide memo Ex. PW9/L. He got the medical ex amination of accused Yashu conducted at SGM Hospital. He deposed that at his request, the concerned doctor took into possession blood sample, pubic hair and under garments of the accused. The doctor prepared separate pullandas of the collected exhibits, sealed them with the seal of hospital and handed them over to him, which he seized vide memo Ex. PW21/A. He deposited the ex hibits in Malkhana and recorded statement of witnesses. He deposed that ac cused Yashu was produced before the Court and three days PC remand was obtained for apprehending the third accused namely Sunil. He deposed that during PC remand, accused Yashu led them to Heerankudna Mod, where he FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 36/74 (PW28) at the instance of accused prepared pointing out memo vide memo Ex. PW9/I. From Heerankudna Mod accused Yashu led them to place of occur rence and, at his instance, he (PW28) prepared pointing out memo Ex. PW9/J. PW28 deposed that in search of accused Sunil, accused Yashu led them to Ba hadurgarh but all in vain. After completion of PC remand, accused Yashu was sent to JC remand.
31.(i) PW28 deposed that he collected postmortem report from SGM Hospital and the collected exhibits were sent to FSL, Rohini, through Ct. Ballu Ram for expert opinion. He recorded statement of witnesses. He deposed that at his re quest SI Mahesh (Draftsman) visited the spot and he prepared scaled site plan.
31.(j) PW28 deposed that on 23/11/2009 he received information regarding ap prehension of accused Sunil by police officials of Punjab Police and upon in quiry through telephone he came to know that accused Sunil was apprehended by the staff of PS Mohali in case FIR No. 233/2009 and 234/2009. He deposed that on 23/11/2009 he moved an application before the Court for issuing pro duction warrants against accused Sunil, which was allowed by the Court upon his request Ex. PW28/H. He deposed that on 04/12/2009 accused Sunil was produced in Tis Hazari Courts by the concerned jail staff of Punjab and he moved an application Ex. PW28/I for interrogating accused Sunil. During in terrogation, accused Sunil confessed his involvement in the present case vide FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 37/74 disclosure statement Ex. PW15/B and he was arrested vide arrest memo Ex. PW15/A. In his disclosure statement, accused Sunil disclosed that he was us ing the property of accused Ishu i.e. the spot as Gher (place where the animals are tied) on rent. PW28 got accused Sunil medically examined at SGM Hospi tal, where the concerned doctor collected his blood sample and prepared pul landa. The doctor handed over the sealed pullanda and sample seal of the hos pital to PW28, which he seized vide memo Ex. PW9/M. He deposed that ac cused Sunil led them to the place where the victim was murdered and pointed out the place where the accused had put pistol and magazine. He prepared the pointing out memo Ex. PW15/E. He deposed that accused Sunil also led them to the room where the victim was murdered and he prepared pointing out memo Ex. PW15/F. PW28 deposed that pursuant to his disclosure statement, accused Sunil led them to his house at Mundka from where he got recovered three live cartridges stating that the same remained unused at the time of inci dent. He prepared sketch of the recovered cartridges vide memo Ex. PW15/C, prepared pullanda of the cartridges, sealed it with the seal of RSM vide point ing out cum seizure memo Ex. PW15/D, recorded statement of witnesses and deposited the case property in Malkhana. He deposed that the articles recov ered at the instance of accused Sunil were sent to FSL Rohini through Ct. Sub hash. He recorded statement U/s. 164 CrPC, Ex. PW7/A, of Kuldeep. The sup FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 38/74 plementary statement recorded on 18/09/2009 of witness Kuldeep is Mark 7B. He prepared the charge sheet and filed before the Court.
31.(k) PW28 deposed that, later on, he received information regarding recov ery of some documents of deceased victim Nitika from the possession of ac cused Sunil at the time of his apprehension by Punjab Police. On receipt of said information, he sent his staff to PS Mohali which got the articles of de ceased verified and collected relevant photocopies of memos/documents. He deposed that he also verified about ownership of motorcycle no. HR12L4031 from the concerned Transport Authority. Thereafter, he prepared supplemen tary chargesheet Ex. PW28/K (collectively).
31.(l) PW28 deposed that he obtained Sanction U/s. 39 Arms Act from the then Addl. DCP Sh. Vikramjeet Singh against accused persons Sunil Kumar and Yashu and filed it in the Court through application Ex. PW28/L. The vehi cles were released on supardari. He collected FSL reports and filed in the court through applications Ex. PW28/M and Ex. PW28/N. The ballistic expert report is Ex. PW28/O (running into four pages). The Biological report dated 31/05/2010 and other reports are Ex. PW28/P (Colly.).
31.(m) PW28 stated that he could identify the case properties, if shown to him. The record revealed that the case properties had already been exhibited during FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 39/74 testimony of other witnesses. Ld. Defence counsel also raised no objection in identification of case properties through PW28, therefore, the production of case properties during testimony of PW28 was dispensed with.
31.(n) In cross examination by Ld. Counsel for accused Vineet @ Kala, PW28 admitted that the information received vide DD No. 34A was that "Lad ki ne goli maar li". He voluntarily stated that the information might have been recorded wrongly. He replied that the father of deceased was present at the spot; however, he gave no statement, neither on 14/09/2009 nor on 15/09/2009. He voluntarily stated that the family of deceased had already lodged missing report with PS Bawana. He replied that on 15/09/2009 father of deceased did not give any statement or gave hint about involvement of accused Vineet @ Kala. He admitted that prior to 16/09/2009 father of deceased did not give any statement or gave any hint of involvement of accused Vineet @ Kala in the present case. He replied that despite efforts no chance prints could be devel oped from the spot by the crime team. He replied that he did not notice any tyre skid marks, either at the spot or nearby it. He replied that he found no eye witness at the spot till the time he remained there. He replied that he found no public person who had seen accused Vineet @ Kala going in or coming out from the place of incident, and who had seen his car near the spot on 15/09/2009. He replied that he also found no public person who saw the ac FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 40/74 cused persons locking the main gate of the spot with an iron chain. He stated that he made inquiries from the public persons present at the spot and asked them if they had seen anything or have knowledge about the present case but none came forward; he asked the public persons not to stay at the spot if they had no knowledge about the incident. He replied that no public person joined the investigation despite repeated requests on 15/09/2009.
31.(o) PW28 replied that he did not ask father of the deceased or other mem bers of the family to sign on documents prepared at the spot on 15/09/2009. He denied the suggestion that he did not do so as father of the deceased was not present at the spot. He denied the suggestion that he did not receive any secret information on 17/09/2009. He replied that he inquired from the shopkeepers at Hirankudna Mor regarding taking away of deceased by the accused in car, however, none disclosed anything. He denied the suggestion that accused Vi neet neither went to Hirankudna Mor nor picked up the deceased from there. He denied the suggestion that he did not join any public person at the time of arrest of accused Vineet @ Kala as he neither visited nor arrested the accused from Bakkarwala Chowk. He denied the suggestion that accused Vineet was called and arrested as PS or never made any disclosure statement and was forced to sign certain blank papers, which were later converted into docu FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 41/74 ments. He denied the suggestion that accused Vineet @ Kala neither took him to his house nor got the Swift Car No. DL8CNB3335 recovered.
31.(p) He replied that he did not call any FSL team/finger print expert at the time of seizure of car no. DL8CNB3335, nor asked them to examine it. He voluntarily stated that the vehicle was used by accused persons only for travel ling purpose alongwith the deceased and the incident did not take place inside the car, therefore, the vehicle was not got examined through the expert. He replied that accused Vineet was not owner of the said car. He voluntarily stated that during investigation it was revealed that maternal uncle (Mama) of ac cused Vineet was registered owner of the said vehicle. He replied that he did not call maternal uncle of the accused at the time of seizure of said vehicle. He admitted that he did not cite the maternal uncle (Mama) of accused Vineet as a witness in the present case. He denied the suggestion that accused Vineet @ Kala did not point out the place of occurrence nor led them to bus stop from where the accused persons had picked up the deceased.
31.(q) In cross examination by Ld. Counsel for accused Ishu @ Yashu, PW28 denied the suggestion that no pistol was recovered from the spot. He an swered that an empty magazine was lying near pistol at the spot. He replied that no missing report was lodged in their police station. He replied that the missing report was lodged in PW Bawana, therefore, he had not verified about FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 42/74 visit of the deceased in college on the date of incident. He denied to having verified the mobile no. 9255785505 from which the complainant received call at his no. 9810535131 on the day of incident. He replied that a DD No. 34A was recorded in PS Nangloi in that regard. He replied that he came to know from the public persons that the place of incident i.e. the house belonged to ac cused Ishu @ Yashu but was taken on rent by accused Sunil, however, public persons gave no statement in that regard. He replied that the mobile phone stated to be used by accused Ishu @ Yashu was found switched off at that time. He replied that he sent request to obtain Customer Application Form (CAF) and Call Detail Record (CDR) of mobile phone of accused Ishu @ Yashu, however, the said request was not filed in judicial file. He denied the suggestion that he deliberately did not file/place on record the CAF and CDR of mobile phone number of accused Ishu @ Yashu as there was nothing in criminating in it. He replied that he obtained cell tower location of mobile numbers being used by accused Ishu @ Yashu and the deceased at the time of commission of offence, however, it was not made part of chargesheet. He de nied the suggestion that he deliberately did not make cell tower location as part of the chargesheet because there was nothing incriminating against accused Ishu @ Yashu. He denied the suggestion that he had not conduced fair investi gation and all the evidences had been collected on the basis of hearsay evi dence.
FIR No. 375/2009PS Nangloi State Vs. Yashu & Ors. Page 43/74
31.(r) In cross examination by Ld. Counsel for accused Sunil, PW28 replied that the crime team members lifted the chance prints from the pistol and magazine. He admitted that the ballistic expert was not called at the spot. He denied to having obtained the specimen finger impressions of the hands of deceased Nikita to rule out the fact of selfinfliction of injury. He replied that he also did not obtain opinion regarding selfinfliction of injury by deceased from the doctor who conducted the postmortem. In answer to the question if Sh. Vijender, father of deceased had raised any suspicion against accused Sunil at the time of preparing rukka, PW28 replied that father of deceased was weep ing continuously and was not able to tell anything, and was saying "iss waqt meri halat theek nahi hai, main baad me bataunga". He replied that the rukka was prepared by ASI Ram Pal as the complainant was not in a position to tell anything at that time. He denied that by not sending the rukka on the statement of complainant, he had left open the scope of naming accused persons on his discretion illegally. He answered that he recorded the statement Vijender in verbatim on dated 16/09/2009 and did not twist the story by recoding any fact in DD No. 34A that "Issu S/o. Rajveer ne ladki ko goli maar di", instead of "ladki ne goli maar li". He denied the suggestion that the statement of Vijen der recorded U/s. 164 CrPC on 16/09/2009 was false. He replied that it was a matter of record that in the disclosure statement of accused Sunil there was no mention of I card and admission ticket of deceased Nikita. He replied that after FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 44/74 recording statement of Vijender on 16/09/2009, he did not verify the fact if de ceased Nikita had visited Aditi College, Bawana, on 14/09/2009. In answer to the question of conducting any inquiry about missing report lodged at PS Bawana on 14/09/2009, PW28 replied that on 15/09/2009 call regarding the in cident was recorded at PS Nangloi vide DD No. 34A, information of which was already there at PS Bawana. Therefore, Inspector Ram Avtar, the then Addl. SHO, PS Bawana came to the spot and shared the missing report with him.
31.(s) He denied the suggestion that he deliberately, intentionally and know ingly had not taken the copy of register no. 19 and copies of DD entries of FIR No. 234/09, PS Mohali, due to the fact that there was no mention of I card and admission ticket of Aditi College, Bawana, allegedly shown as having been re covered from accused Sunil. He answered it to be a matter of record that as per viscera report it was opined that deceased had consumed liquor. He admitted that CDRs as well as CAF of mobile phone of accused Sunil were not filed on record. He admitted that he did not make any site plan of the place of recovery at the house of accused Sunil. He answered it to be a matter of record that it was not written in the seizure memo from which room three live cartridges were recovered from the house of accused Sunil. He admitted that at the time of recovery of three live cartridges from the house of accused Sunil, he did not FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 45/74 call the crime team to lift the chance prints. He admitted that he had not filed any document to prove the ownership of the house from where three live car tridges were shown as recovered. He voluntarily stated that accused Sunil him self led them to his house. He denied all the suggestion put to him regarding going to accused Sunil's house on 05/12/2009, recovery of three live cartridges from his house, preparation of seizure memo and sketch of the recovered car tridges at the spot and that the signature of accused were taken on all the said papers by threatening him. He replied that accused Sunil Kumar disclosed that he obtained the pistol and magazine from one Chhotu but did not give any de tail about him. He answered it to be a matter of record that in the ballistic ex pert report at Sr. No.6 it was mentioned that the individual characteristics of striations present on the evidence deformed bullet marked Ex. EB1 are insuf ficient for comparison and opinion whether it has been discharged through the improvised pistol 9mm caliber Marked Ex. F1 or not. He replied that despite efforts, no rent receipt of the plot from where the dead body was found was provided to him by accused Sunil or accused Ishu @ Yashu. He answered it to be a matter of record that during initial stage of proceedings of present case Smt. Sarla Devi, mother of accused Yashu had filed an application for reclaim ing the possession of said plot from the police and a report in that regard was also sought from accused Sunil. He denied the suggestion that accused Sunil FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 46/74 Kumar has been falsely implicated in the present case and that he made no dis closure statement.
32. PW29 Sh. Vikramjit Singh, DCP (HQs) PHQ, Delhi Police, deposed that in the month of September 2010, when he was posted as Addl. DCPI, West District, his staff put the chargesheet of the present case alongwith state ment of witnesses under section 161 CrPC, FSL Report, seizure memos and other documents before him. He went through all the relevant documents and on 10/09/2010 gave sanction to prosecute accused Ishu @ Yashu S/o. Sh. Ra jveer Singh and accused Sunil S/o. Sh. Bhim Singh for offence punishable un der section 25 Arms Act vide his Sanction Ex. PW29/A and Ex. PW29/B re spectively.
33. Upon completion of prosecution evidence the statement of accused per sons were recorded separately under section 313 Cr.PC in answer to all the in criminating evidence received against them. The accused persons did not avail of the opportunity to lead evidence in defence. I have heard the elaborate final arguments from both sides.
Arguments and analysis:
34. (a) Ld. Defence Counsels argued that there is no direct evidence of murder of deceased Nitika, whereas, the circumstantial evidence do not connect FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 47/74 accused persons with the offence. As per defence submissions the prosecution case is that deceased Nitika left home on 14/09/2009 at around 09:00 am to attend classes at Aditi College, Bawana and was found murdered on 15/09/2009 at around 03:00 pm at house belonging to accused Yashu that he had partly rented out to accused Sunil. There was, admittedly no eye witness to murder.
34.(b) Absent the direct evidence of murder, the case remained dependent upon proof of circumstantial evidence; even that remained elusive on account of reasons mentioned hereinafter:
a. There is no evidence that deceased attended College on 14/09/2009. b. There is no evidence that deceased met accused persons on that day. c. There is no evidence that deceased accompanied accused persons to the place where she was found murdered, although it was just a few yards away from her own residence.
d. There were no chance prints at the spot.
e. The post mortem report of deceased does not indicate the proximate time
of her death.
f. PW 28 IO Insp. Rajbir Malik admitted that he obtained CAF and CDR
report of mobile phones of accused persons from mobile operators, yet he did not file them with charge sheet to substantiate their presence FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 48/74 at/near the place of occurrence on 14/09/2009.
g. The alleged informant Vikram, who called from Kurukshetra, Haryana on 15/09/2009 at around 02:30 pm to inform PW3 Vijender that his daughter had been murdered by accused Yashu and her dead body was lying in Yashu's house, was not traced and joined in investigation by the IO.
h. There is no evidence that the house in which dead body of Nitika was discovered, belonged to accused Yashu or that he partly rented it out to accused Sunil.
i. The motive of accused persons to kill deceased was not established. j. Police entered the house in question on 15/09/2009 by breaking open the locks of outer gate and inner room door. The IO did not care to find out who locked the door and retained the keys.
k. The weapon of offence i.e. the gun recovered from the spot could not be connected to accused persons.
l. The admission ticket and Identity Card of deceased were planted upon accused Sunil by Punjab Police at behest of IO Insp. Rajbir Malik. m. IO planted three live cartridges upon accused Sunil after obtaining his police custody remand.
n. The vehicles recovered from the courtyard of house in question were not owned or possessed by the accused persons. Similarly, the car allegedly FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 49/74 recovered at the instance of accused Vinit, was not owned or possessed by him.
o. IO deliberately delayed recording of statements of PW3 Vijender Singh and PW14 Kuldeep to cover up deficiency and lacunae in investigation.
35. On the other hand, Ld. Addl. PP argued that the circumstantial evidence conclusively proved that the accused persons murdered victim Nitika in pursuance of criminal conspiracy.
36. Indeed, the prosecution case relied heavily on proof through circumstantial evidence since there was no witness to murder of victim Nitika. The circumstantial evidence shall be analysed in the light of testimonies of the witnesses.
Information to Police :
37. PW3Vijender Singh, father of deceased Nitika stated that he received a call on his mobile phone no. 9810535131 from phone number 9255785505 on 15/09/2009 at around 2:30 pm. The caller informed him that his daughter Nitika had been shot and murdered by accused Yashu in his house. PW3 informed police and reached Yashu's house, that was a few yards away from his home, along with PCR officials.
FIR No. 375/2009PS Nangloi State Vs. Yashu & Ors. Page 50/74 The spot :
38. (a) Police officials of local police station joined Vijender Singh and PCR officials outside house of accused Yashu. Its main gate was locked from outside with chain and lock. The police officials arranged hammer and broke the chain to enter the house. In the courtyard, a pistol (Ex. P6) was found lying. At a short distance, an empty pistol magazine was also found. There was a tin shed in the courtyard to tether buffalos. There was no animal but animal fodder was found near tin shed. One white car of Ford company and a motorcycle HR 12L 4031 was found parked inside. One of the rooms on ground floor was locked from outside and foul smell was coming from it. As its lock was broken open, there came a gust of foul smell. The foul smell was coming from dead body of Nitika, that was wrapped in a black polythene. The polythene wrap was opened and it was discovered that she was shot on the left temple with her left eye protruding out. In addition, she had abrasion marks on left forearm and abdomen. There was blood on the polythene wrap and bed sheet. One empty bullet cartridge was lying near the dead body. One deformed bullet lead piece was also found beneath the dead body. One ladies purse was found lying beside the dead body.
38.(b) The complete absence of chance prints at the spot and on weapon of offence indicate towards conscious attempt to erase the evidence of offence. FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 51/74 The wrapping of dead body in polythene wrap was an unmistakable attempt of the murderer to dispose of the dead body. The cattle were removed from the tin shed and premises was locked from outside by the murderer. Possession of house in question :
39.(a) Accused Yashu raised the defence that he was no longer residing at the said house as he had already shifted to Rohtak, Haryana in the year 2008 and it was given on rent by mother of accused Yashu. The said suggestion was denied by PW3 Vijender Singh. PW14 Kuldeep was cross examined to the effect that accused Yashu had left the house in which Nikita was found murdered, in the year 2006 and the said house was lying vacant since then. PW14 deposed that there were about 56 rooms in said house, out of which 34 rooms were in possession of accused Sunil, whereas, 23 rooms were in possession of accused Yashu.
39.(b) Since accused Yashu was admittedly in possession of the house in which dead body of Nitika was discovered, albeit, till the year 2008, the onus was on accused Yashu to prove that he was not in possession and use of the said house at the time of incident. He led no evidence in this regard. As a natural inference, he shall be considered to be in conscious and exclusive possession of said house at the time of murder of victim Nitika. He was also in FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 52/74 conscious possession in the courtyard of his house the improvised pistol of 9mm calibre (Ex.P6) as well as empty cartridge shell (Ex.P5) of same calibre. Lodging of missing report at PS Bawana :
40. Vijender Singh cannot be faulted with for lodging missing report of his daughter Nitika in police station Bawana, instead of PS Nangloi under whose local jurisdiction his house was situated. On the fateful day, Nitika had gone to attend classes at Aditi College, Bawana, situated within local jurisdiction of PS Bawana. It was natural for Vijender Singh to lodge missing report Ex.PW3/DX in PS Bawana.
Not a case of suicide :
41. It's not a case of suicide by deceased Nitika. Her dead body was found wrapped in black polythene; there were abrasions on her forearm and abdomen; the room in which her body was lying was locked from outside; the pistol and cartridge case/magazine were lying separately in the courtyard; the chance prints were erased from the spot as well as from weapon of offence; the room and main gate of house were locked from outside. All these factors are inconsistent with and militate against the theory of suicide. FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 53/74 Hostile witness :
42.(a) A key prosecution witness PW7 Kuldeep Singh, aged around 18 years, turned hostile. He was cousin brother of accused Sunil and came to stay with him during the days when incident occurred. He had stated on oath under Section 164 Cr.PC (Mark 7A, also Ex.PW18/A) during investigation that on 14/09/2009 he saw accused Sunil, Yashu (Vishu) and Vineet accompanying a girl in a car parked in Yashu's house. Accused Sunil was carrying a gun like object. Accused Sunil asked him to go home. On the same day, at around 2:00 2:30 pm he noticed accused Sunil in a disturbed state; he was sweating and trembling. Sunil asked him to bring home the buffalos from Yashu's plot and remove articles from its courtyard without going inside the rooms. At Sunil's behest he brought home the buffalos tethered at Yashu's plot, whereas, younger brother and servant of Sunil removed several other articles from there.
42.(b) In his testimony recorded in the Court, PW7 Kuldeep turned hostile and stated that he saw nothing on the day of incident. In cross examination conducted by Ld. Addl.PP he stated that police met him for enquiry but he did not know the purpose. He again stated that police took him forcibly to police station and confined him there for 3 days. He stated that police pressurised him to give statement under Section 164 Cr.PC (Mark 7A, also Ex.PW18/A). He stated that police was not present in the room in which his statement was FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 54/74 recorded by Magistrate. He told the Magistrate that he would depose voluntarily without pressure. He admitted that he took oath before giving statement to the Magistrate and the Magistrate recorded whatever was stated by him. He replied that he did not know the difference between truth and falsehood. He denied the suggestion that he deposed falsely to save his cousin accused Sunil.
42.(c) The testimony of PW7 is indicative of opposite to what he deposed it was not police that coerced him to depose in a certain manner, rather, it was more likely the defence side that influenced him because of close relation with one of the accused. The averment of pressure on PW7 to depose under Section 164 Cr.PC is general in nature and not against a specific police official. No complaint was filed against police by PW7 for alleged wrongful confinement and pressure exerted by police.
Recovery of college I Card and Admission Card of deceased from accused Sunil :
43.(a) After the incident, accused Sunil evaded arrest as a suspect in this case.
For this reason NBW and process under Section 82 Cr.PC were issued against him by the Court. PW 24 SI Pawan Kumar, Punjab Police deposed that on 22/11/2009, he apprehended accused Sunil in area of Mohali, Punjab while he FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 55/74 was in possession of an illicit pistol and six live cartridges. He arrested accused Sunil in case FIR No. 234/09, PS Phase 8, Mohali, Punjab, under Section 25 Arms Act. He conducted personal search of accused Sunil vide personal search memo Ex. PW24/A and discovered NIOS identity card (Ex.PW22/A) and B.A. course annual examination 2009, Delhi University Admission Ticket (Ex. PW24/B) of victim Nitika in his personal search. He denied the defence suggestion of falsely planting documents of deceased upon accused Sunil at behest of IO of this case.
43.(b) I find no substance in the defence argument that IO met PW24 at Punjab and handed over college documents of deceased Nitika to plant upon accused Sunil in FIR No. 234/09, PS Phase 8, Mohali, Punjab, under Section 25 Arms Act to create false evidence for this case. The defence raised in this regard is completely speculative and vacuous. It is noteworthy that no defence suggestion was put to PW3 Vijender Singh that he handed over the college ID card and examination admission card of deceased Nitika to the IO. In fact, PW3 Vijender deposed that when his daughter Nitika left home on 14/09/2009, she carried with her some college documents of second year for annual examination as the same were required to be shown in the college. He identified the admission ticket Ex. PW 24/B (also mark A) that Nitika carried when she left home for college.
FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 56/74 Delayed recording of statements of PW3 Vijender Singh :
44. Learned defence counsels raised the defence that Vijender Singh, the father of deceased Nitika, was available at the time of sending of rukka from the spot on 15/09/2009, but the rukka was not sent upon his statement that left ample scope for improvement of his version and covering up of deficiencies and lacunae left in investigation. In this regard, PW3 Vijender Singh explained in his statement that he could not bear the sight of his young daughter lying dead in the pool of blood with one of her eyes protruding out because of gunshot injury. Because of disturbed state of mind, he was not in a position to give statement to police on 15/09/2009. Similar was the reply of IO Inspector Rajbir Malik, who stated that father of deceased was continuously weeping and crying and he was not able to give statement. The explanation given by PW3 Vijender Singh and IO Inspector Rajbir Malik sounds reasonable. It was natural for Vijender Singh, as father of deceased Nitika, to be extremely disturbed at the sight of her deformed dead body. His inability to give statement on 15/09/2009 is justified, and it does not seem to be a conscious attempt of IO to delay his statement.
Improvements in the version of PW3 Vijender Singh:
45.(a) Learned defence counsels argued that PW3 Vijender Singh materially FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 57/74 improved upon his statement given under section 161 Cr.PC and introduced new facts in his testimony. He deposed that in the morning of 14/09/2009, when his daughter Nitika left for college, he went to close the door of his house and saw accused Yashu and Sunil standing in front of Sunil's shop that was located close to his house. In the meantime, accused Vineet also came there in a Maruti Swift car of white colour bearing number 3335. All the said three accused persons started talking to each other, whereas, PW3 went inside his house. The said fact was not stated by PW3 Vijender in his statement recorded under section 161 Cr.PC.
45.(b) It is observed that PW3 Vijender Singh comes across as a very honest witness. He had no intention to falsely implicate the accused persons for murder of his daughter which is evident from the fact that he did not give statement against the accused persons at the time of registration of FIR, despite opportunity. What has been objected as material improvement in the testimony of PW3 Vijender by Ld. defence counsels, seems to be a natural recall of events of the fateful day by PW3. PW3 deposed that in the evening of 14/09/2009 he observed that the shop of accused Sunil was unusually closed, whereas, all the three accused persons could be seen sitting together outside the shop in the evenings.
FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 58/74
45.(c) It is observed that the facts which otherwise do not seem significant and could be dismissed as routine, assume significance in a specific context. Such facts need not have been specifically mentioned in the statement recorded under section 161 Cr.PC. In the morning of 14/09/2009, PW3 Vijender may not have suspected that accused persons intended to murder his daughter Nitika. In the evening of same day, PW3 may not have suspected that accused Sunil kept his shop closed as he had done something wrong to his daughter. If PW3 wanted to exaggerate facts or improve upon or add new facts, there was no limit to which he could go to falsely implicate the accused persons.
45.(d) PW14 Kuldeep stated about presence of accused persons near the spot of occurrence on 14/09/2009. He stated that on that day, at around 2:30 PM - 3 PM he passed through accused Yashu's plot while going to his house. He noticed all the three accused persons standing outside Yashu's home near one Ford Icon car of white colour. They were talking to each other. On seeing PW 14 approaching, they turned their face in opposite direction. He noticed Kuldeep Singh (PW7), a relative of accused Sunil, standing near the gate of Yashu's house. At around 10 PM on the same day, while going back to his home after lodging missing report at PS Bawana, PW 14 noticed a lock on the outer gate of Yashu's plot, which usually remained open. PW 14 stated that deceased Nitika left home for college on 14/09/2009 in his presence. PW 14 FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 59/74 was not cross examined by defence to the effect that on 14/09/2009, at around 2:30 PM - 3 PM he did not see the accused persons and PW7 Kuldeep standing outside Yashu's plot or that at around 10 PM on the same day he did not see the lock on outer gate of Yashu's plot, although it usually remained open.
45.(e) The testimony of PW 14 Kuldeep buttressed the deposition of PW3 Vijender. Whereas PW3 Vijender saw the accused persons standing near his home (in front of accused Sunil's shop) in the morning of 14/09/2009, PW 14 Kuldeep saw them standing together outside Yashu's plot at around 2:30 PM - 3 PM on the same day. Similarly, whereas PW3 Vijender noticed that the shop of Sunil was unusually closed in the evening of 14/09/2009, PW 14 Kuldeep noticed that Yashu's plot was unusually locked from outside in the same evening.
Deficiency in investigation deliberate or negligent. Justice cannot suffer in hands of an IO :
46.(a) Of course, some material deficiencies remained in investigation related to local investigation at Aditi college, Bawana to discover if deceased Nitika actually attended college on that day; local investigation to discover if anyone FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 60/74 saw deceased Nitika meeting or accompanying the accused persons to Yashu's plot on 14/09/2009; filing of CAF and CDR records of mobile phones of accused persons although IO obtained them from the respective mobile operators; to gather information about alleged informant Vikram, who called from Kurukshetra, Haryana on 15/09/2009 at around 02:30 pm to inform PW3 Vijender that his daughter had been murdered by accused Yashu and her dead body was lying in Yashu's house.
46.(b) The lapses committed by police in investigation are serious and affected the prosecution case as well as defence of accused persons equally. The lapses could be deliberate or negligent.
46.(c) In this regard, Hon'ble Supreme Court in Ram Bihari Yadav Vs. State of Bihar (1998) 4 SCC 517, while dealing with the effect of shoddy investigation of cases held that if primacy was given to such negligent investigation or to the omissions or lapses committed in the course of investigation, it will shake the confidence of the people not only in the law enforcing agency but also in the administration of justice.
46.(d) In Amar Singh versus Balwinder Singh (2003) 2SCC 518, Hon'ble Supreme Court observed that it would not be right to completely throw out the FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 61/74 prosecution case on account of defects in investigation, for doing so would amount to playing in the hands of the investigating officer who may have kept the investigation designedly defective.
In this case too, the prosecution case shall not be allowed to fail merely because of shoddy investigation conducted by the investigating officer in particular aspects. In the same breath, it is observed that even the accused persons did not avail of the opportunity to prove the CDR of their mobile phones to show that they were not present at or near the spot on the day of incident. No witness in defence was examined by them to prove that they were present elsewhere on the day of incident.
Postmortem report of deceased Nitika and time of her death :
47. The postmortem report Ex.PW8/A was proved by Dr. Manoj Dhingra, SGM Hospital. As per postmortem report deceased Nitika died because of cranio cerebral damage consequent to gunshot injury on her left temple. She sustained abrasion injuries on her left forearm and abdomen, which reflect mark of struggle/resistance injuries. The postmortem report does not mention time since death, although, it mentions that rigor mortis was present all over the body the usual duration of which is 24-36 hours from death. It is observed that on 15/09/2009 at around 3:00 pm deceased Nitika was found wrapped in FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 62/74 black polythene that could have affected the process of decomposition of dead body. Her dead body was emitting foul smell when her father and police officials entered the room in which her dead body was lying. The exact or approximate time of death of Nitika could not be determined conclusively but foul smell from dead body indicates that considerable hours must have already elapsed since her death before her dead body was discovered at 3 PM on 15/09/2009.
Ballistic Report :
48. As per Ballistic Report No. FSL 2009/F - 4555 dated 3/8/2010, the empty cartridge Ex. P5 (recovered from the spot) was fired from the pistol 9MM calibre Ex.P6 (recovered from the spot). However, the lead piece of discharged bullet Ex.P4, recovered from the spot, was found deformed and no ballistic opinion could be given on it.
Recovery of three live cartridges at the instance of accused Sunil:
49.(a) PW15 HC Subhash and PW 28 IO Inspector Rajbir Malik deposed that after accused Sunil was formally arrested in this case vide memo exhibit PW 15/A, he made a disclosure statement exhibit PW 15/B about this case. IO obtained two day police custody remand of accused Sunil during which he got FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 63/74 recovered three live cartridges from the almirah of his house. The cartridges were allegedly removed by accused Sunil from the cartridge case/magazine of the pistol that was used to kill diseased Nitika. The recovered cartridges were seized vide memo exhibit PW15/D.
49.(b) Learned defence counsels argued that the recovery of cartridges was falsely planted upon accused Sunil by the IO. PW 15 and PW 28 admitted in crossexamination that no public person was asked to join the investigation at the time of recovery from house of accused Sunil. The cartridges were stated to be recovered from the ground floor but this fact was not mentioned in the seizure memo. No site plan of place of recovery was prepared by the IO. PW 15 HC Subhash did not remember if the almirah from which the cartridges were recovered, was standing freely or was affixed to the wall. The lapses in proceedings conducted by IO at the time of visiting the house of accused Sunil do not rule out prospect of planting of recovery of cartridges upon him. Seizure memo exhibit PW 15/D remained unproved.
Motive to kill Nitika:
50. (a) Learned defence counsels argued that the prosecution has not proved motive of the accused persons to kill Nitika. Considering that there was no direct witness to the incident of murder, it was incumbent upon the prosecution FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 64/74 to prove possible motive of the accused persons to kill Nitika; from the prosecution evidence no motive could be attributed to the accused persons to commit her murder.
50.(b) In this regard PW3 Vijender Singh deposed that he had some land dispute with accused Sunil and his family; he had called police at 100 number when family of accused Sunil attempted to lay foundation in the disputed land.
He was not aware of any other motive of the accused persons to kill his daughter Nitika. Accused Sunil did not cross examine PW3 Vijender Singh to the effect that he had no land dispute with accused Sunil and his family. Still, the exact motive of the accused persons to kill victim Nitika remained hazy and unclear.
Replies of accused persons under Section 313 Cr.PC and defence evidence:
51. The accused persons offered no specific explanation to the incriminating evidence put to them under section 313 Cr.PC. Their replies constituted mainly of casual denial or ignorance of all the incriminating evidence put to them. The accused persons led no evidence in their defence.
Proof of circumstantial evidence and special circumstances of this case : FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 65/74
52.(a) It is well established law that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ( Ref. :
Hanumant and Ors. vs. State of Madhya Pradesh, AIR 1952 SC 343).
52.(b) In Tulshiram Sahadu Suryawanshi and Ors. vs. State of Maharashtra, (2012) 10 SCC 373, Hon'ble Supreme Court observed thus:
"It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 66/74 likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382: "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:
"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 67/74 disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are pre eminently or exceptionally within his knowledge."
52.(c) In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681, Hon'ble Supreme Court dealt with a similar case of homicidal death in the confines of the house. There was no eye witness to murder and the case rested on circumstantial evidence. The following observations are considered relevant to the facts of the present case:
"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 68/74 of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
53.(a) In the present case, PW3 Vijender Singh and PW14 Kuldeep are the most important witnesses who deposed about presence of accused persons and their conduct on the date of incident.
FIR No. 375/2009PS Nangloi State Vs. Yashu & Ors. Page 69/74
53.(b) PW3 deposed that in the morning of 14/09/2009, when his daughter Nitika left for college, he went to close the door of his house and saw accused Yashu and Sunil standing in front of Sunil's shop that was located close to his house. In the meantime, accused Vineet also came there in a Maruti Swift car of white colour bearing number 3335. All the said three accused persons started talking to each other, whereas, PW3 went inside his house. PW3 deposed that in the evening of 14/09/2009 he observed that the shop of accused Sunil was unusually closed, whereas, all the three accused persons could be usually seen sitting together outside the shop in the evenings.
53.(c) PW14 Kuldeep stated about presence of accused persons at the gate of Yashu's plot i.e. spot of occurrence on 14/09/2009. He stated that on that day, at around 2:30PM - 3:00PM while passing through accused Yashu's plot he noticed all the three accused persons standing outside Yashu's home and talking to each other. On seeing PW14 approaching, they turned their face in opposite direction. He noticed Kuldeep Singh (PW7), a relative of accused Sunil, standing near the gate of Yashu's house. At around 10:00PM on the same day, while going back to his home after lodging missing report at PS Bawana, PW 14 noticed a lock on the outer gate of Yashu's plot, which usually remained open. In all likelihood, only the murderer(s) would have put lock on FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 70/74 the room in which dead body of Nitika was lying as well as on the outer gate of the house.
54. From the evidence it is established that the house in which Nitika was found murdered was in accused Yashu's exclusive and conscious possession and regular use till 15/09/2009. He was also in conscious possession in the courtyard of his house the illicit improvised pistol of 9mm calibre (Ex.P6), as well as empty cartridge shell (Ex.P5) of the discharged bullet. The spot of murder was sanitised and all chance prints were erased from the spot by the offender(s) to obliterate evidence. The buffalos were removed and the room in which murder was committed as well as outer gate of the house was locked by the offender(s). All three accused were seen together by PW3 Vijender near his house in the morning of 14/09/2009 when his daughter Nitika left home to go to college. Again, on the same day all the accused persons were seen together by PW14 Kuldeep at the gate of Yashu's plot at around 2:30 PM - 3 PM. They turned their face away from PW14 to avoid him. Considering the circumstances, the conduct of the accused persons becomes important. PW14 Kuldeep deposed that PW7 Kuldeep, a relative of accused Sunil, was also present there. PW7 turned hostile to prosecution case. As observed herein above, it was more likely that he did so under influence of defence side because of his close relation with one of the accused.
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55. Another vital circumstance coming in evidence against the accused persons is that the college I card and exam. admission card of deceased Nitika were recovered from possession of accused Sunil by Punjab police on 22/11/2009, regarding which the defence of false planting of documents has been rejected hereinabove. The natural inference is that he is one of the murderers because Nitika carried the said documents with her on the day of incident i.e. 14/09/2009. Only the murderer(s) could have access to the said documents.
56. The prosecution led all circumstantial evidence that it could to bring home the offence against the accused persons. However, considering that murder of victim Nitika was committed in the secrecy of Yashu's house, where the assailants had all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it would naturally be difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the court. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.
57. Considering the peculiar circumstances of case at hand, the prosecution has sufficiently discharged initial burden to prove its case but the nature and FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 72/74 amount of evidence to be led by it to establish the charge could not be of the same degree as is required in other cases of circumstantial evidence; the burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there was a corresponding burden on the accused persons to give a cogent explanation as to how the crime was committed. They could not get away by simply keeping quiet or offering fancy, incredulous and unsubstantiated explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there was no duty at all on the accused to offer a cogent explanation. Absent a reasonable explanation in defence, the circumstantial evidence is fully established and the conclusion is inevitable that it was accused persons and none else that murdered victim Nitika.
58. In conclusion, accused Yashu, Sunil and Vineet are convicted for the offence under Section 302/120B IPC for committing murder of victim Nitika between 14/09/2009 and 15/09/2009 in pursuance of their criminal conspiracy to murder her. Accused Yashu is additionally convicted for the offence under Section 25 Arms Act, for consciously possessing in the courtyard of his house an illicit improvised pistol and empty/discharged cartridge shell, both of 9mm calibre. The charge under Section 25 Arms Act remained unproved against accused Sunil and he is acquitted of the said charge. The sentence shall be FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 73/74 announced after hearing submissions of accused persons.
59. File be consigned to record room after completion of all necessary formalities.
Announced in the open court dated: 30/07/2020 (VISHAL SINGH) ASJ03, WEST/DELHI FIR No. 375/2009 PS Nangloi State Vs. Yashu & Ors. Page 74/74