State vs . (1) Mohinder Sharma on 24 January, 2012

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Delhi District Court

State vs . (1) Mohinder Sharma on 24 January, 2012

     IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
         JUDGEII(NORTHWEST): ROHINI COURTS: DELHI


Session Case No. 1150/09
Unique Case ID No.: 02404R0225912009

State                            Vs.              (1)     Mohinder Sharma
                                                          S/o Ram Naraian Sharma
                                                          R/o Ashram Wali Gali,
                                                          Pradhan Ka Makaan,
                                                          Village Budhpur, Delhi
                                                          (Convicted)

                                                  (2)     Arun Kumar
                                                          S/o Sh. Jagdish
                                                          R/o Jhuggi No. 6,
                                                          Vishwanathpuri,
                                                          Bhalswa Dairy, Delhi
                                                          (Acquitted)


FIR No.:                         249/09
Police Station:                  Saraswati Vihar
Under Section:                   302/394/397 IPC and 25/27 Arms Act 

Date of committal to Sessions Court: 24.9.2009

Date on which orders were reserved: 6.1.2012

Date of which judgment pronounced: 7.1.2012


JUDGMENT:

As per allegations, on the intervening night of 1819.5.2009 in between 9:30 PM to 6:30 AM at Footpath, Inner Ring Road, near St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 1 of113 CNG Pump on the road going from Britania Chowk to Wazirpur, Opposite F Block, Shakurpur, Delhi in furtherance of their common intention both the accused Mohinder Sharma and Arun Kumar robbed one Vadivale of his Nokia mobile phone No. 2600 bearing IMEI No. 356396026901613 and his purse containing some documents and money. It is further alleged that in that process the accused also attacked Vadivale with knife resulting into his death. On 24.5.2009 at about 6:30 AM from Ashram Wali Gali, Pradhan Ka Ghar, Budhpur Village, Alipur, Delhi the accused Mohinder Sharma was found in possession of one button actuated knife with which he had committed the murder of deceased Vadivale and the mobile stolen by him from the deceased was also found in his possession which he was using with a SIM of Devanand Prashad which he had earlier stolen and was using. CASE OF THE PROSECUTION/ BRIEF FACTS:

The case of the prosecution is that on 19.5.2009 at about 6:50 AM pursuant to DD No. 11A Inspector Sunil Kumar along with Ct. Devender Kumar reached at inner ring road footpath, near CNG Pump, F Block, Shakurpur where they found the dead body of one man in a pool of blood. At the spot they met one Perumal who informed them that the name of the deceased was Vadi Vale who was his father. Perumal further informed the police that his father was a Gardner (Maali) in DDA, Keshav Puram and on 18.5.2009 when his father did not return to home, at about 8:30 PM his father made a telephone call from his mobile St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 2 of113 no. 9873973918 on his (Perumal) mobile no. 9871420729 informing him that he would come late from the office. According to Perumal, when his father did not return till 10:00 PM he again called up his father who told him that he was just reaching the house but his father did not return on that night. On the next morning at about 6:30 AM when Perumal searched his father, he found the dead body of his father lying near CNG Pump, Britania Chowk. The police searched the body of Vadivale one blood stained small bag, two blood stained golden Khaini pouches, wrist watch and a handkerchief was found but the money and the mobile phone which Vadivale was using at the time of the incident, was found missing.

On the basis of statement of Perumal the present case was got registered and the investigations were kicked off. Perumal provided the copy of the bill of mobile phone used by his father Vadivale after which the IMEI No. 356396026901613 was put on surveillance and its call details were obtained which showed that the SIM connection no. 9718006863 was running on the said IMEI No. and the first SMS was received at 5:46 AM on 19.5.2009. The ownership of the aforesaid mobile no. 9718006863 on inquiry was found to be in the name of Devanand Prashad who was interrogated and it was found that Devanand Prashad had lost the said phone. Further, investigations revealed that a large number of calls had been made to phone no. 9350010957 from the SIM No. 9718006863 by using the mobile phone of the deceased having St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 3 of113 IMEI No. 356396026901613. The SIM No. 9350010957 was found in the name of Visheshwar Singh but it was revealed that the said connection was taken on falsely identity and further inquiries revealed that the said number was being used by one Ram Narain Sharma. During the investigations, Ram Narain Sharma disclosed that it was his son Mohinder Sharma who was using the SIM connection No. 9718006863. On 24.5.2009 pursuant to a secret information the accused Mohinder Sharma was arrested from near his house at village Budhpur while he was trying to start his two wheeler scooter bearing no. DDS 7045. From the possession of the accused the mobile phone of the deceased i.e. Nokia 2600 of Golden Colour was recovered in which the SIM connection no. 9718006863 was put. Further, one buttondar knife (blood stained) was also recovered from the pocket near knee of the right leg of the pant and another mobile phone without any SIM was recovered from the front diggi of the scooter. The accused Mohinder Sharma was arrested and during interrogation he admitted his involvement in the present case along with one Arun Kumar. After completion of the investigations the charge sheet was initially filed only against the accused Mohinder Sharma since the accused Arun Kumar was absconding. However, on 31.10.2009 the accused Arun Kumar was arrested pursuant to a secret information and the supplementary charge sheet was filed against him.

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 4 of113 CHARGE:

Charges under Sections 394/302/34 Indian Penal Code read with Section 397 Indian Penal Code were settled against both the accused Mohinder Sharma and Arun Kumar to which they pleaded not guilty and claimed trial. Further, charges under Section 25/27 of Arms Act were settled against the accused Mohinder Sharma to which he pleaded not guilty and claimed trial.

EVIDENCE:

In order to prove its case the prosecution has examined as many as Thirty witnesses as under:

Public witnesses:

PW3 Peru Mal is the son of the deceased who has deposed that he was doing private job in Karol Bagh and deceased Vadivale was his father who was doing the job of Maali (Gardener) in DDA Keshav Puram and in routine his father used to return home from duty till 6 pm. According to him on 18.5.2009 his father did not return home and at about 8:30 PM his father made a telephone call from mobile no. 9873973918 on his mobile no. 9871420729, that he would come late from the office but again he did not return. Thereafter, at about 10:00 PM he (Perumal) again called on his father's telephone and his father told him that he was just reaching at home but again his father did not St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 5 of113 return that night. Witness has further deposed that he searched his father and on the next day in the morning at about 6:30 am, he reached near CNG Petrol Pump near Britania Chowk where he found his father lying dead and thereafter police came at the spot. According to the witness, his father used to keep NOIKA Phone2600 of golden colour which was purchased in the name of his mother in December 2008 from JD Block, Pitampura. He has proved that police recorded his statement which is Ex.PW3/A and thereafter the police searched the dead body of his father during which from the pocket one blood stained small bag, two blood stained Golden Khaini pouches were found and the wrist watch of his father was lying near his father and one handkerchief was also recovered, which articles were seized vide memo Ex.PW3/B. According to him, the mobile phone of his father and the money were not found from the body of his father. He has proved that police lifted the blood stained earth, blood and earth control from the spot and put up the same in the pullandas and sealed after which it was seized vide memo Ex.PW3/C. He has testified that thereafter the dead body was sent to BJRM Hospital mortuary where he identified the dead body of his father vide statement Ex.PW3/D and after the postmortem examination dead body was handed over to them vide receipt Ex.PW3/E. The witness has proved that he handed over to the Investigating officer the bill of the mobile phone which was in the name St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 6 of113 of his mother Mani which bill was seized vide memo Ex.PW3/F. He has also proved that he handed over the cardboard box of the mobile phone which was seized vide memo Ex.PW3/G. The witness has identified the said bill in the Court which is Ex.P2 and has deposed that from the search of the dead body of his father election Icard and PAN card were not recovered as his father used to keep photocopy of the same and used to return on feet from his duty. He has correctly identified the case property i.e. one cardboard box of NOKIA 2600 on which IMEI No. 356396026901613 was written which said cardboard box is Ex.P3; phone of NOKIA2600 is Ex.P4; one small bag stained with blood, one blood stained handkerchief, two blood stained pouches of Golden Khaini and one wrist watch as found from the body of his father, are collectively Ex.P5.

In his cross examination by the Ld. Defence counsels witness has deposed that he had left house in search of his father after about 10:30 pm but he did not meet him and searched him on the way through which he used to come to the house. According to him, his father had not quarreled with anyone prior to this incident. He has deposed that he searched his father till 12:00 night and thereafter, he went to sleep and tried to contact his father on his phone but his phone was switched off. The witness has deposed that he he woke up in the morning at about 6:00 am and thereafter he went to search his father and he again searched on the same route. According to PW3, when he St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 7 of113 reached at the spot there were about about 1520 persons and police was already present there. He has also deposed that his father used to keep the original Icard of his office with him and used to keep original of voter I Card and PAN card at home.

PW7 Sh. Gaurav Kochhar has deposed that in the year 2008 he was doing the work of selling mobiles with the name of H.R. Enterprises at JD20A, Pitampura, DELHI and on 23.12.2008 he sold one mobile phone Nokia 2600 S gold with IMEI No. 356396026901613 to Mrs. Mani (wrongly typed as Mr. whereas it should be Mrs. and is liable to be read as such) for Rs.3,000/ and the invoice in this regard is Ex.P2. According to him, police had shown him the receipt Ex.P2 and he had identified the same belonging to his shop.

In his cross examination by Ld. Defence counsel the witness has deposed that he had brought the day book and vat return form but he had not brought the receipt book as the same was not traceable since he had closed down the business. According to the witness, he has deposed only on the basis of record.

PW15 Mani is the wife of the deceased who has deposed that on 23.12.2008 her son had purchased a sunehri (golden) color mobile phone make Nokia, model she did not remember from Pitampura in her name which he purchased for a sum of Rs.3,000/ which receipt of purchase is Ex.P2. According to her, the said phone was being used by her husband late Sh. Vadivale who had taken the mobile phone on St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 8 of113 18.05.2009 when he was on duty.

With the permission of the Court, leading questions were put to the witness by Ld. Addl. PP for the State wherein the witness was unable to tell whether the make of the mobile is Nokia 2600 or whether the mobile was purchased from HR Enterprises ID 20A, Pitampura, New Delhi or whether it was bearing IMEI NO. 356396026901613 or if the mobile was bearing No. 9873973918. Witness has also correctly identified the cardbox of Nokia 2600 containing the mobile make Nokia 2600 on which IMIE No. 356396026901613 was written which box is Ex.P3 and the phone is Ex.P4.

In her cross examination by Ld. Defence counsels the witness has deposed that she did not remember the number of the mobile of her husband nor she can tell the number of any of the mobile phone belonging to her family members. She has proved that her husband had only one mobile number and not two.

PW16 Gullu Malik has deposed that he was having a video game shop at A3/53, Sector 11, Rohini and one Arun Sharma was his friend. According to the witness, he used to meet Arun at Parhladpur in the factory where Arun was working and he (witness) met Ram Narain Sharma. The witness has testified that he was having a mobile No. 9873991531 whose connection was in the name of his wife Kanchan Malik and in the year 2009 he had taken the mobile number of Ram Narain Sharma i.e. 9350010957 with whom he had got acquainted and St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 9 of113 Ram Narain took his (witness) mobile No. 9873991531. This witness has proved that even as on date he was using this number of Ram Narain Sharma. He has also deposed that initially when he had taken this number from Ram Narain Sharma he used to call him frequently but now Ram Narain did not communicate with him.

During his cross examination by Ld. Defence counsel witness has deposed that he cannot produce any document to show that the number which he had given to Ram Narain Sharma 9873991531 was belonging to his wife Kanchan Malik. According to him, for the first time the police met him when he was unwell but he is unable to tell the date, month and states that it was in the year 2010 only. He has further deposed that he did not give any document to the police to show that the mobile phone belong to him or his wife, nor they demanded any document from him. The witness has also testified that he did not tell the Investigating Officer that his shop was situated at Janakpuri and had told them that it was at sector 11, Rohini. PW16 has stated that that prior to this he had never met the police in connection with the present case and he did not know the name of the owner of the factory where Arun Sharma was working but has voluntarily added that it was a factory where they make some machine because he saw a lot of sariyas lying there. Witness has further deposed that he did not have the mobile number of any other person working with Arun Sharma and is also unable to tell the name of other persons working with Arun Sharma. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 10 of113 On a specific court question the witness has deposed that that Ram Narain did not work with Arun Sharma, but he only used to come there after the factory work was over and they all used to meet outside.

The witness has further deposed that the shop he had constructed is on his own plot at Rohini and his residence is separate. According to him Arun Sharma resides at F1/5758, Sector 11, Rohini, Delhi and he had told the Investigating officer the address of Arun Sharma but he did not tell the address of Ram Narain Sharma since he had never seen his house. He has denied the suggestion that he was not having the mobile phone No. 9873991531 at any point of time or that he had deposed falsely to this effect that the above number belong to his wife. He has testified that the police did not read out any statement nor told him what to depose in the court. He has denied the suggestion that he never met Ram Narain Sharma at any point of time or that he was deposing in this case at the instance of police in order to to falsely implicate the accused Mohinder. He has also denied that Ram Narain Sharma was not having any mobile with the number as alleged by him or that he has never given his number alleged.

PW17 Bihari Lal has deposed that he was having a trading outlet at plot No.2, Khasra No. 24/17, Master Mohalla, Libaspur, Delhi42 where Ram Narain Sharma did the work of welding on temporary basis for about 2 2 ½ months on daily wages. According to St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 11 of113 him, Ram Narain Sharma had provided him with a mobile number which he was using at that time which is 9350010957 on which he (witness) used to call him (Ram Narain) from his land line number 27830009 whenever he required him on duty or whenever he did not come or report for duty. Witness has further deposed that the above mobile No. i.e. 9350010957 was being used by Ram Narain Sharma only. He has proved that he was interrogated by the police and his statement was also recorded.

During his cross examination by Ld. Defence counsels witness has deposed that he is running his trading outlet of iron from Libaspur since October, 2008 and there were 78 workers in his trading outlet but he is unable to show any documentary record to prove that Ram Narain Sharma was his worker and states that he was on temporary worker on daily wages. According to the witness he paid sales tax and besides Ram Narain Sharma, other workers namely Amarjeet, Sunil, Prem, Samder Singh, Lucky, Salim were also employed at the relevant point of time in his said trading outlet. He has testified that Amarjeet and Sunil were also having mobile phones but he did not remember their mobile numbers, however their mobile numbers he had feeded in his mobile. The witness has also deposed that he is not aware of the address of Ram Narain Sharma and he was not having any contact number of other employees as mentioned above except Amarjeet and Sunil because they were residing nearby his trading outlet. PW17 has St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 12 of113 testified that his mobile number is 9810617507 which he was having even at that time. He is unable to tell if he had made telephone phone call or not on Ram Narain Sharma from his mobile phone and states that police had met him in the month of March/April, 2010 in connection with this case. Witness has further deposed that he did not produce any documentary proof of the connection of his aforesaid land line phone to the police because police did not ask him for the same and he cannot tell the exact date, months or duration of employment of his employee Ram Narain Sharma. According to him, he had noted mobile No. 9350010957 in his telephone dairy and neither he was asked by the Investigating officer to hand over dairy to him nor he had given the same to Investigating officer of his own. He has deposed that he went to Police Station first time when he was called by the police on telephone and he visited Police Station only once but police did not visit his trading outlet or at his residence. He has denied the suggestion that Ram Narain Sharma was not having any mobile with the number as stated above or that he could not produce any proof of employment or any document showing the employment of Ram Narain Sharma in his trading outlet because he was never working there at any point of time. The witness has also denied that he was deposing falsely in this case because of the pressure mounted on him by the police. He has also denied that Ram Narain Sharma did not meet him or gave him any mobile number at any point of time. PW17 has further denied the suggestion that was no St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 13 of113 mobile number of Ram Narain Sharma was written in the telephone dairy and that is why the same was not handed over to Investigating Officer.

PW18 Suresh Mittal has deposed that he is having a shop of mobile phone and SIM card under the name and style of Kunal communication at Shop No. 2, Gali No.10, (90/10) main road Haiderpur where he is selling a mobile phone and SIM cards. According to him one customer by the name of Babloo had came to him along with his father Deva Nand Parshad whose name he came to know later to purchase a SIM on 20.12.2008 and he (witness) gave him a SIM connection number 9718006863 and one mobile set of Chinese company for Rs.3,200/. The witness has testified that he (witness) also took from him election identity card for identification and ascertaining of address which was in the name of Deva Nand Parshad. According to him, the customer ID form and the copy of the identity card were sent to the company which customer application form is Ex.PW18/A and the photocopy of the identity card attached with the application form is Ex.PW18/B. During his cross examination by Ld. Defence counsels witness has deposed that he knew Babloo prior to this but not his father. According to him, Babloo had came along with his father but he was not having any ID proof and therefore the same was purchased in the name of his father Deva Nand Parshad.

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 14 of113 PW19 Deva Nand Parshad has deposed that he is a resident of Bihar but his son Babloo is residing at House No. 212, Banjara Gali, Haiderpur, Delhi in the house of one Parminder Yadav on rent. According to the witness, he came to met his son in Delhi off and on and in December 2008 when he had came to Delhi, his son demanded a mobile phone from him on which he purchased a mobile phone of China set from Kunal Communications situated at Haiderpur and gave his Voter ID Card to obtain a connection in his name which number he does not remember. According to him, at the time of purchasing of SIM card he had given his photograph and signed the customer application form and also provided him the identity proof i.e. election ID Card. He has identified his signatures on the customer application form Ex.PW18/A bearing his photograph and also his signatures at point B and the copy of the election card provided by him is Ex.PW18/B. The witness has further deposed that he left for his village but he came to know that after about 45 days his son had lost this mobile phone.

With the permission of the Court leading questions were put by the Ld. Addl. PP for the State during which the witness has admitted that he had purchased this mobile and SIM card on 28.12.2008 and he was given mobile number 971800686. He has also admitted that he did not make any complaint to the police regarding the loss of mobile phone as he had to hurriedly leave for his native village for urgent work and he also did not make any report to the company to close the SIM/mobile St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 15 of113 number.

During his cross examination by Ld. Defence counsel witness has stated that his son Babloo aged 25 years is self employed who is making gas chullas and has a family. According to the witness, he had gone to his native village but his son was still in Delhi and has voluntarily added that his mobile was lost while he was still in Delhi. Witness has further deposed that he had told his son to got a case registered and also to got the phone closed but he did not ask his son if he had got the information registered with the police or got the phone closed. PW19 has also deposed that thereafter he came to Delhi only after 78 months of going back and had asked his son if he had done the needful after his return when his son had told him that he had spoken to customer care who had promised him to do the needful at their level but he did not make any separate complaint with the police or with the mobile company after his return to Delhi. He has testified that he had never seen the mobile thereafter and police had met him in this case after about two months after coming back from his native village to Delhi. He has denied the suggestion that he was deposing falsely with regard to missing of his mobile or that he was deposing as per the tutoring of the Investigating Officer.

PW22 Sh. Ishwar Murti has deposed that on 19.05.2009 he received a telephone call from Perumal the son of his brother in law (Saala) that his father had been murdered and his body was found in St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 16 of113 front of F block, Near CNG Pump, near Britania Chowk on which he went to the spot alongwith his other relatives and found that a dead body was lying soaked in blood on the foot path. According to him, he identified the dead body as that of his brother in law (Saala) namely Vadivale and thereafter they went to government hospital at Jahangir Puri where he identified the dead body and after postmortem the dead body was handed over to them. He has proved that the memo regarding dead body identification which is Ex.PW22/A and the memo regarding the receipt of the dead body which is Ex.PW3/E. He has not been cross examined by the Ld. Defence Counsel.

Medical Evidence:

PW1 Dr. K. Goel, Chief Medical Officer, BJRM Hospital, Delhi has deposed that on 19.5.09 he conducted postmortem on the dead body of Vadi Vale S/o Taj Mani, aged about 50 years which was sent by Inspector Baljeet Singh PS Saraswati Vihar with alleged history of found dead by the police on 19.5.09 at 6.50 am. According to the witness, the clothes on the body were shirt, pant with belt having three cuts, underwear having two cuts, banian and a pair of chappal. He has proved that on external examination following injuries were found on the body:

1) Laceration 1.5 x 0.2 cm at lateral end of right eye brow with abrasions around, abrasions 1 x 0.5cm just below right lateral canthus, 2.5 x 1 cm abrasion right forehead just above eye brow and multiple over chin.

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 17 of113

2) Incised penetrating wound 5cm x 2 cm over middle of left thigh front about 12 cm below inguinal ligament area, placed vertically.

Upper angle of the wound was more acute. On exploration the underlying soft tissues and muscles were cleanly cut. The left femoral artery in that area was found cleanly cut completely transversely with massive clots in surrounding soft tissues. The total depth of the wound was about 78cm.

3) Incised wound 2x0.5 cm transversely placed over anterolateral aspect of left thigh muscle deep about 21 cm below inguinal ligament and 13 cm above the upper margin of left knee.

4) Incised wound 5cm x 2 cm muscle deep transversely placed over lateral aspect of left thigh about 13 cm above left knee and 23 cm below inguinal ligament.

5) Incised wound 3 x 1.5cm transversely placed muscle deep over lateral aspect of left thigh just adjacent and behind injury No. 4.

The witness has proved that all the injuries were antimortem in nature and the injuries no.1 was caused by blunt force impact whereas injuries no. 2 to 5 were caused by sharp cutting weapon. Cause of death was hemorrhagic shock as a result of injury to left femoral artery consequent upon injury No. 2 which was sufficient to cause death in ordinary course of nature and time since death was about 1516 hours. According to him, the clothes and blood sample in gauze piece of the deceased were sealed and handed over to St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 18 of113 police. The witness has proved his detailed postmortem report which is Ex.PW1/A and has deposed that on 22.6.09, Inspector Baljeet Singh tendered an application seeking opinion regarding weapon of offence and produced one sealed packet sealed with the seal of BSA. He has testified that on opening the packet it was found to contain one knife which rough sketch and description was drawn and as per his opinion the injuries No. 2 to 5 mentioned in postmortem report Ex.PW1/A are possible by this weapon or similar like other weapon. According to him, the weapon was resealed alongwith police seal with the seal of KG and handed over back to Inspector Baljeet Singh alongwith sample seal and his detailed opinion alongwith description of knife and its sketch is Ex.PW1/B. The witness has correctly identified the case property i.e buttondar knife which is Ex.P1.

During his cross examination by Ld. Defence counsel the witness has admitted that hemorrhagic shock is due to excessive bleeding.

PW20 Dr. Harpreet Kaur has deposed that pursuant to the directions of the Court, she examined the accused Arun on 10.12.2009 who had been produced from Judicial Custody and the blood sample from the accused Arun by her Lab Technician Anil Kumar. The witness has proved having prepared the report in respect of the same which is Ex.PW20/A and she handed over the blood sample to Inspector Satish St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 19 of113 Kumar which was duly sealed with the seal of Medical Officer Incharge, Distt. Jail, Rohini. She has also proved the seizure memo in this regard is Ex.PW20/B. She has not been crossexamined by the Ld. Defence Counsels.

Police/ official witnesses:

PW2 HC Sushil Kumar has deposed that on 19.5.2009 while posted as Duty Officer in Police Station Saraswati Vihar, at about 6:50 AM he recorded DD No. 11A copy of which is EX PW 2/A and after recording the same it was handed over to SI Sunil through Ct. Sunil. He has not been crossexamined by the Ld. Defence Counsel despite opportunity.

PW4 ASI Santosh has deposed that on 19.5.2009 he was posted as Duty Officer in Police Station Saraswati Vihar and was on duty from 9am to 5 pm. According to him, on that day at about 9:30 am he received a rukka through Ct. Narender which was sent by SI Sunil Kumar on the basis of which and on his instructions the present FIR 249/09 under Section 302 IPC was registered computer generated copy of which is Ex.PW4/A. He has proved that after registration of FIR he handed over the original rukka and copy of the FIR to Ct. Narender for handing over to Inspector Baljeet Singh for further investigations. He has also proved his endorsement on the rukka which is Ex.PW4/B and has deposed that he recorded kayami DD no. 15A and bandi DD no.16A which are Ex.PW4/C and Ex.PW4/D. In his cross examination the St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 20 of113 witness has denied the suggestion that FIR is antitime.

PW5 Sh. V. Shankaranarayanan SSA (Bio.) FSL has deposed that on 29.06.2009 six sealed parcels were received in the office of FSL in connection with the case FIR No.249/09 under Section 302, PS Saraswati Vihar and he had opened the above said parcels and examined the exhibits biologically. According to him on biological examination, blood was detected on exhibits Ia (cloth bag), Ib (handkerchief), Ic (wrist watch), 2 (cotton wool swab), 3 (blood stained earth material), 4a (shirt), 4b (banian), 4c (underwear), 4d (pants with belt), 4e (a pair of chappals), 5 (blood stained gauze cloth) and 6 (knife) and his detailed biological report in this regard which running into two pages is Ex.PW5/A. The witness has further deposed that the above said exhibits were also examined by him serologically and on serological examination exhibits 1a,1b,2,4a,4b,5 and 6 showed reaction for human blood group 'B' and his detailed serological report in this connection is Ex.PW5/B. He has testified that the the remnants of the above said exhibits after his examination were resealed with the seal of VSN, FSL, Delhi.

During his cross examination by Ld. Defence counsels witness has deposed that parcels were not received by him personally but received in the office from the police and he had gone through the contents of the letter sent by the police. According to him about 40% of the population are said to have 'B' blood group according to statistics St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 21 of113 taken 20 years ago.

The witness has recalled when he deposed that on 12.1.2010 one rubber stamped seal envelope was received in the office of FSL Rohini, Delhi in the above mentioned case which envelope was opened by him. He has deposed that he examined the exhibit Biologically and Serologically and his detailed Biological Report is Ex.PW5/C and the Serological report is Ex.PW5/D and the remnant of the above said exhibits, after my examination, was resealed with the seal of VSN FSL Delhi.

PW6 Sh. Sanjeev Lakra Nodal Officer, Reliance Communication has deposed that on 14.11.2009 a requested was received from Inspector Baljeet Singh for providing the call details of mobile no. 9350010957 from 1.5.2009 to 31.5.2009. The witness has proved that accordingly they supplied the computerized call details of the said mobile number which are collectively Ex.PW6/A. He has placed on record the certificate under Section 65 B of the Evidence Act which is Ex.PW6/B; the computer generated call details of above said phone which are Ex.PW6/C and the customer application form copy of which is Ex.PW6/D. During his cross examination by Ld. Defence counsel witness has deposed that the customer application form is stored in central ware house at Bombay and the server is situated at Mumbai and St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 22 of113 he had taken out the print of call details personally. According to him, he had passed over the request to his Mumbai office and they had taken out the data and put it on the computer after which he had taken out the print out of the call details which were taken out from the server. He has denied the suggestion that he cannot tell whether the information passed on by the Mumbai office is correct or not and has voluntarily stated that the information has been retrieved from the server where no alterations could be made in the authentic record maintained. He has admitted that the ID proof submitted by Visheshwar Singh the subscriber is attached along with the application form which is Ex.PW6/D. PW8 Sh. R.K. Singh, Nodal Officer, Bharti Airtel has proved the call details of mobile No. 9871420729 from 01/05/2009 to 31/05/2009 which is in the name of Perumal S/o Vadivale. Witness has also brought the customer application form with ID proof, and has also brought the call details of mobile Number 9971741087 from 01/05/2009 to 31/05/2009 this connection is in the name of Sh. Avdesh, S/o Sh. Surendera. He has placed before this Court the call details of phone number 9871420729 which are collectively Ex.PW8/A and the customer application form along with ID proof are collectively Ex.PW8/B. He has also placed on record the call details of phone number 9971741087 which are collectively Ex.PW8/C; the customer application form of Avdesh along with ID proof is collectively Ex.PW8/D; the Certificates St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 23 of113 under Section 65 B of Evidence Act for both the mobile phones which is Ex.PW8/E and the location chart is Ex.PW8/F. During his cross examination by Ld. Defence counsel witness has deposed that the site ID bearing No. 4431 is of Lohia Industrial Area, Lawrence Road and site ID No 847 is of Wazirpur Industrial area and 4898 is of Jahangirpuri D Block area.

PW9 Sh. Ajeet Singh, Asstt. Nodal Officer, Idea Cellular Ltd., has proved the call details of mobile number 9718006863 from 01/03/2009 to 31/05/2009. He has placed on record the customer application form of above phone which is in the name of Amit Singh, S/o Jaipal Singh which call details are collectively Ex.PW9/A; customer application form along with ID proof is Ex.PW9/B; cell ID chart which is Ex.PW9/C and the certificate under Section 65 B of evidence act which is Ex.PW9/D. He has not been crossexamined by the Ld. Defence Counsels.

Here, I may observe that the No. 9718006863 was allotted to Amit Singh in December 2009 i.e. after registration of the present case and arrest of the accused. The said allotment appears to have been made after six months of the number not being used as per the TRAI Regulations and is not relevant for purposes of present case. Only the Call Details Record for the period 1.3.2009 to 31.5.2009 are relevant. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 24 of113 PW10 Sh. Jyotish Chandra Moharana, Alternate Nodal Officer,Vodafone essar mobile services has proved the call details of mobile number 9873973918 from 01/05/2009 to 20/05/2009 and customer application form which is in the name of Perumal S/o Vadivale. He has placed on record the call details record from 1.5.2009 to 12.5.2009 which are Ex.PW10/A; customer application form along with ID proof which is Ex.PW10/B and the certificate under Section 65 B of Evidence Act which is Ex.PW10/C. According to him on 12.05.2009 the above number has been transferred in the name of Vadivali and the phone has been converted into post paid from prepaid. He has further placed on record the call details from 12.05.2009 to 18.05.2009 which are collectively Ex.PW10/D (there was no call entry after 18.05.2009) and the customer application form along with ID proof which is Ex.PW10/E. He has also placed on record the call details of mobile No. 9873991531 from 01.04.2009 to 30.04.2009 which is in the name of Kanchan Malik W/o Gullu Malik. The customer application form along with ID proof is Ex.PW10/F; Call details are Ex.PW10/G; Certificate under Section 65 B of Evidence Act in this regard is Ex.PW10/H and the cell ID Chart is Ex.PW10/J. The said witness has not been crossexamined by the Ld. Defence Counsel.

PW11 SI Rajiv Gulati has deposed that on 20.05.2009 he was and working as clerk of Sh. R.C. Saini, ACP and also working as a St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 25 of113 Nodal Officer. According to him, on that day he handed over to Investigating Officer the CDRs of IMEI No. 356396026901613 from 01.01.2009 to 20.05.2009 and on the analysis of the CDR it is found that on the above mobile with the above mentioned IMEI number the SIM number 9718006863 was running from 19.05.2009 at 5:46 AM till the time of taking out the call details. He has deposed that on inquiry it was revealed that above mentioned SIM No. was in the name of Deva Nand Parshad S/o Sh. Kuldeep Parshad, R/o 212, Banjara wali gali. He has proved the call details running into 10 pages which are collectively Ex.PW11/A; frequency chart which is Ex.PW11/B and the letter of the ACP marked to SHO which is Ex.PW11/C .

In his cross examination by Ld. Defence counsel witness has deposed that he had not signed any memo in this regard nor he had handed over any documents to the record showing that he had taken out these details. He has admitted that his name is not mentioned on any of the documents but has denied the suggestion that he had not got the above mentioned documents at the time and date mentioned by him.

PW12 SI Satpal Singh has deposed that on 19.05.09 he was posted as Incharge Crime Team, NorthWest District, Pitampura and on that day at about 7:30 AM he received a call from control room North West district on which he along with Ct. Mohinder, photographer, driver HC Ashok reached at Ring Road, near CNG Petrol Pump, Britannia, St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 26 of113 where he found the dead body of a person lying on the foothpath whose name he came to know later as Badriwal (Vadivale) and his blood was lying at the spot. He has proved having prepared his report which is Ex.PW12/A. He has not been crossexamined by the Ld. Defence Counsels and his testimony in this regard is incontroverted.

PW13 HC Mohinder Singh has deposed that on 19.05.2009 he was posted in Mobile Crime Team North West district, Pitampura as Photographer and on that day he along with the crime team reached at the spot i.e. in the ring road, F Block, Shakurpur, near patrol pump. He has proved that he he took the photographs of the deceased at the spot which photographs are Ex.PW13/A1 to A7 and the negatives of the same are Ex.PW13/B collectively. According to him he handed over the photographs to the Investigating officer after developing the same. He has not been crossexamined by the Ld. Defence Counsel.

PW14 HC Ram Charan has deposed that on 19.05.2009 Insp. Baljeet deposited five sealed pullandas with the seal of BS in the malkhana and after collecting the same he made entries in register No. 19 at serial No. 3738 copy of which is Ex.PW14/A. According to him on 29.06.09 he sent the above five pullandas to FSL Rohini through Ct. Amar Singh vide road certificate No. 47/21/09 and he made endorsement in the malkhana register and signed the same. The witness has further deposed that on 24.05.2009 Insp. Baljeet Singh got deposited in the malkhana one scooter bearing No. DDS7047 along with Key make St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 27 of113 LML Vespa; one mobile phone make Nokia 1600 without SIM; another mobile make Nokia 2600 with SIM; SIM of mobile No. 9718006863; buttondar knife and personal search articles recovered from accused Mohinder Sharma. According to him, the above articles were deposited in the malkhana vide entry at serial No. 3747 copy of which is Ex.PW14/B. The witness has also deposed that on 29.06.06 on the directions of the Investigating Officer he handed over the seven pullandas to Ct. Amar Singh for depositing the same at FSL Rohini and after depositing the same Ct. Amar Singh handed over to him the receipt which he pasted in the register No.21 at serial No. 21108 vide RC No. 47/21/09 copy of which Road Certificate and the receipt is Ex.PW14/C and Ex.PW14/D. The witness has further deposed that on 22.06.2009 Insp. Baljeet Singh deposited sample seal of mark KG which was deposited in the malkhana vide entry No. 3779A copy of which is Ex.PW14/E. According to him, Inspector Baljeet also deposited the personal search articles of accused Arun in the malkahan vide entry No. 3925 copy of the which is Ex.PW14/F. During his cross examination by Ld. Defence counsel witness has deposed that Investigating Officer got deposited the articles in the malkhana on 24.05.2009 with regard to this case at about 22:30 PM and within half an hour he recorded the details of the articles in the malkhana register No. 19. He has admitted that the time of deposit of articles is not mentioned in the register No.19 but has denied the St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 28 of113 suggestion that investigating officer did not deposit the articles on 24.05.2009 at the time mentioned or the same were deposited later at the instructions of the Investigating officer.

PW21 Ct. Amar Singh has deposed that on 29.06.2009 he was handed over six pulandas all of which were duly sealed and three of the pulandas were sealed with the seal of BSA and other three pulandas were sealed with the seal of KG and he was directed to deposit the same with FSL Rohini. According to him, he took these pullanda to the FSL Rohini where he deposited the same alongwith the RC bearing No. 47/21/09 and after getting the same received at FSL Rohini, he handed over the receipt of the same to MHC (M) Saraswati Vihar and his statement was recorded on the same day. Witness has proved that till such time the pulandas remained in his custody, they were kept intact.

In his cross examination by Ld. Defence counsels witness has deposed that he was handed over the pullanda by the MHC(M) and he was given oral directions by the Investigating officer Inspector Baljeet Singh to the exhibits to FSL Rohini.

PW23 Ct. Vijayan has deposed that on 21.09.2009 he was posted as constable at Police Station Saraswati Vihar and on that day he had collected two sealed pulandas from Babu Jagjeevan Ram hospital on the directions of the Duty officer and handed over the same to MHC(M) Saraswati Vihar. He has proved that till the time the pulandas were in his possession, they were intact and were not tampered. He has not been St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 29 of113 crossexamined by the Ld. Defence Counsels.

PW24 Ct. Devender Yadav has deposed that on 19.05.2009 he was posted as constable at Police Station Saraswati Vihar and on that day he was on emergency duty and at about 6.50AM they received a call vide DD No.11A regarding a dead body lying on the foot path, near CNG Pump, on inner Ring Road at Britania Chowk, Saraswati Vihar on which he alongwith SI Sunil Kumar reached the spot and found a dead body soaked in blood lying on foot path of inner ring road at F Block, Shakur pur, near CNG Pump. According to him, the said body appeared to be of a male about 50 years around the body there was a lot of blood and one golden colour wrist watch with a brown strap was lying on the body with ASIAN written on it. He has deposed that one boy was also standing near the dead body who informed them that his name is Perumal and the dead body belong to his father namely Vadivale. The witness has further deposed that SI Sunil Kumar immediately called up the SHO and informed him about the situation and the SHO Police Station Saraswati Vihar came at the spot in the official vehicle No. 3203 driven by ASI Bhupender Singh accompanied by Ct. Narender, Ct. Balwan and Ct. Satpal and inspected the spot and thereafter called the crime team through the wireless set. The witness has testified that the crime team came and inspected the spot and took the photographs of the place where the dead body was lying. According to the witness SI Sunil Kumar found on inspection of the dead body that there were four cut St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 30 of113 injuries on the left thigh and blood was oozing out of the same after which SI Sunil prepared a tehrir Ex.PW3/A and handed over the same to Ct. Narender and the SHO directed him to take the same to the police station for registration of FIR. He has proved that Ct. Narender left the spot with tehrir and after about half an hour to forty five minutes Ct. Narender came to the spot with Inspector Baljeet Singh to whom investigation of this case was handed over. The witness has also deposed that Inspector Baljeet Singh inspected the spot and lifted the blood lying at the spot with the help of a cotton and put the same in a plastic container and also lifted the earth form the spot and put the same in a plastic container and also lifted the blood stained earth and put the same in a plastic container and all the three plastic jars were thereafter converted into pulandas and sealed with the seal of BSA. The witness has further testified that the seizure memo of all the three plastic containers containing the above three exhibits lifted from the spot was prepared vide seizure memo Ex.PW3/C. According to him, Inspector Baljeet Singh thereafter conducted the Talashi of the dead body during which from the right side pocket of the deceased, two packets of Golden Khaini (Tambakoo) soaked with blood were found, a towel like handkerchief of orange colour with white stripes on the same was also found in the right side pocket along with one small plastic thaila of red and yellow colour soaked with blood was also found. He has also deposed that all these articles i.e. the small plastic thaila, towel St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 31 of113 handkerchief, two packet of khaini and the wrist watch were converted into a pulanda with the help of white cloth and sealed with the seal of BSA and seized vide memo Ex.PW3/B. According to PW24, he was directed by the Investigating Officer to take the dead body to the Babu Jagjeevan Ram Hospital and the dead body was formally identified by Perumal and thereafter Perumal took the dead body to the Babu Jagjeevan Ram Hospital and after some time SI Sunil Kumar accompanying with Perumal and other relatives reached the hospital and made a request to conducting the postmortem of the body and handed over the same to the doctor. He has also testified that he remained at the Mortuary and after getting the postmortem of dead body conducted, the dead body was handed over to the relatives of the deceased. According to him, SI Sunil left him at the spot and directed him to remain in the mortuary of the hospital and to collect the exhibits which doctor would handed over to him. He has deposed that he was handed over two pulandas and one sample seal by the doctor and both the pulandas were sealed with the seal of KG after which he came back to the Police Station and handed over the same to Inspector Baljeet Singh. He has proved that till the time the dead body remained in his custody it was not tampered and there was no tampering and his statement was recorded on the same day.

In his cross examination by Ld. Defence counsels the witness has denied the suggestion that he had not joined the St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 32 of113 investigations and all the proceedings were prepared while sitting in the police station.

PW25 Inspector P. P. Singh has deposed that on 19.05.2009 he was posted at SHO Police Station Saraswati Vihar and on that day while he was at the police station at about 6.50 AM he received telephonic information from SI Sunil regarding a dead body lying on the foot path opposite CNG Pump, inner Ring Road, Shakurpur. According to him, on receipt of this information he along with his driver ASI Bhupender and three constables namely Ct. Balwan, Ct. Satpal and Ct. Narender reached the spot in his official gypsy bearing no. 3203 and when they reached at the spot he found SI Sunil and one more constable whose name he does not recollect were already present at the spot along with the son of the deceased. According to the witness, he found a dead body of a male aged about 50 years lying on the foot path soaked with blood and he also found a lot of blood lying around the dead body on the footpath and on inspection four deep wounds on the left thigh and one sharp cut injury mark above the right eye brow was found and the blood was dried. Witness has further deposed that he immediately sent a wireless message to the crime team and in the meanwhile the statement of the son of the deceased namely Perumal who was present at the spot was recorded by SI Sunil and made an endorsement on the same which statement is Ex.PW3/A which was thereafter sent to the police station by him for registration of FIR through Ct. Narender who came back to St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 33 of113 the spot after about 45 minutes to one hour along with copy of FIR and original rukka. The investigations of this case was handed over to Inspector Baljeet Singh his Addl. SHO at that time, who had already reached the spot in the meanwhile on his directions and crime team also reached the spot and he along with the crime team and SI Sunil inspected the spot and the dead body and the photographs of the spot were taken by the crime team. The witness has further deposed that Inspector Baljeet Singh lifted the blood lying at the spot with the help of cotton and put the same in a plastic container and he also lifted the blood stained earth and put the same in a plastic container and both the containers were thereafter converted into a pulanda with a white cloth and sealed with the seal of BSA and the seizure memo of the exhibits lifted from the spot was prepared after which the search of the dead body was also taken and one packet of khaini as noticed by him, one handkerchief and one thaila of cloth were found in the right side pocket of the pant of deceased which were taken into possession by the Investigating Officer and the dead body was thereafter sent to the mortuary of Babu Jagjeevan Ram Hospital. The witness has also deposed that thereafter he returned to the police station.

In his cross examination by Ld. Defence counsels witness has stated that he is am not an expert but he had carried out a casual inspection of the dead body. According to him, SI Sunil had received the message through the control room. He has admitted that the St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 34 of113 investigation of a case of murder is required to be carried out by an officer of the rank of an Inspector and has voluntarily added after registration of the case the investigations were handed over to Inspector Baljeet Singh and SI Sunil had only went to the spot to verify the call. According to him, prior to Inspector Baljeet Singh reaching the spot he only inspected the area and called the crime team and tried to make inquiries from some public persons who had started gathering at the spot. He has admitted that he did not do any writing work at the spot nor signed any document. The witness has deposed that he had carried out the inquiries from Perumal the son of the deceased along with SI Sunil and he only told the crime team that the dead body had not been removed and is in the same position it which it was found and also told them what ever details were given to him by Perumal regarding the employment, name and address of the deceased. According to the witness, SI Sunil had prepared the rukka but it was prepared in his presence and he remained at the spot for about one to one and a half hour and till such time he remained at the spot, the cause for murder was still unknown as the investigations were in initial stage. He has further testified that some arrests had taken place till the time he was SHO but he did not recollect the details since he was not a part of investigation. He has denied the suggestion that he was not present at the spot and it is for this reason that none of the documents bear his signatures. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 35 of113 PW26 Ct. Narender Kumar has deposed that on 19.05.2009 he was posted as Constable at Police Station Sarawati Vihar and on that day he along with SHO Inspector PP Singh, Ct. Balwan and Ct. Satpal reached at the spot i.e. CNG Pump, near Britania Chowk, in the official gypsy of SHO where they found a dead body of 50 years old male lying on the foot path at inner Ring Road and at that time the dead body was soaked with blood and blood was also lying on the foot path. According to him, they found SI Sunil and Ct. Devender and one public person namely Perumal who claimed himself to be the son of the deceased and the SHO Inspector PP Singh called the crime team on wireless set. Witness has further deposed that SI Sunil prepared a tehrir and handed over the same to him with the directions to take the same to the Police station for registration of FIR which tehrir is Ex.PW3/A. According to the witness, he took the same to the police station on the motorcycle of Ct. Devender and got the FIR registered and investigations were handed over to Inspector Baljeet Singh. He has further deposed that the duty officer handed over to him the copy of FIR which is Ex.PW4/A and original rukka which he handed over to Inspector Baljeet Singh and thereafter he along with Inspector Baljeet Singh came back to the spot. The witness has also deposed that Inspector Baljeet Singh inspected the spot and lifted the blood lying at the spot with the help of a cotton and put the same in a plastic container and he also lifted the earth along with small stones (without blood) from the spot and put the same St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 36 of113 in a plastic container. According to him, the Investigating Officer further lifted the blood stained earth and put the same in a plastic container and all the three plastic jars were thereafter converted into pulandas and sealed with the seal of BSA and the seizure memo of all the three plastic containers containing the above three exhibits lifted from the spot was prepared vide seizure memo Ex.PW3/C. Witness has further deposed that Inspector Baljeet Singh thereafter conducted the Talashi of the dead body and from the right side pocket of the deceased, two packets of Golden Khaini (Tobacco) soaked with blood were found and a towel like handkerchief of orange colour with white stripes on the same was also found in the right side pocket along with one small plastic thaila of red and yellow colour soaked with blood was also found; one wrist watch with ASIAN written on it, steel numa was also found lying near the dead body. He has testified that all these articles i.e. the small plastic thaila, towel handkerchief, two packet of khaini and the wrist watch were converted into a pulanda with the help of white cloth and sealed with the seal of BSA and seized vide memo Ex.PW3/B. According to the witness, Crime Team came to the spot and inspected the same and took photographs of the spot and the dead body was sent to the Babu Jagjeevan Ram Hospital and the dead body was formally identified by his son namely Perumal and one other relative of the deceased who came to the spot later. The witness has further deposed that on 24.05.2009 on the directions of Inspector Baljeet Singh, he St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 37 of113 alongwith Inspector Baljeet Singh, SI Sunil, HC Raj Pal and Ct. Narender went to G. T. Karnal Road as Inspector Baljeet Singh had received a secret information that the accused Mohinder wanted in the present case would be coming to his residence at village Budhpur where he was residing in the house of the Pradhan. He has testified that when they reached village Budhpur they met the secret informer who joined them in the police party and they were thereafter taken by the secret informer to the village Budhpur, Asharam Wali Gali and when they reached the said gali the secret informer pointed out towards one person who was starting his scooter as Mohinder the accused wanted in the present case. According to him, Inspector Baljeet Singh and Ct. Narender (other constable Narender by the same name) apprehended the said person and carried out his casual search during which a mobile phone of NOKIA2600 was recovered from the right pocket of his (accused) pant and one knife was recovered from the pocket on the side of the knees and the search of the back side pocket of the pant revealed a purse containing his four passport size photographs and four visiting cards and Rs.1,750/. He has proved that the knife was measured and its sketch was prepared which is Ex.PW26/A after which the investigating officer converted the knife into a pulanda and sealed with same with the seal of BSA and seized vide memo Ex.PW26/B. According to the witness, the scooter of grey colour, LML Vespa, DDS 7045 which the accused was starting at the time of his apprehension was also searched St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 38 of113 and the search of the dicky revealed another mobile NOKIA 1600 was present in the dicky and the Investigating officer prepared seizure memo of the scooter which is Ex.PW26/C and the seizure memo of mobile NOKIA 1600 which is Ex.PW26/D. He has proved the seizure memo of the mobile phone NOKIA 2600 which is Ex.PW26/E; the seizure memo of the SIM of the mobile phone NOKIA 2600 which is Ex.PW26/F after which the accused Mohinder was arrested by the Investigating officer vide memo Ex.PW26/G and his personal search was conducted vide memo Ex.PW26/H. Witness has further deposed that on the directions of the Investigating Officer he and HC Raj Pal brought the scooter to the police station and deposited the same in the Malkhana. According to PW26, on 12.01.2010 on the directions of Inspector Satish Kumar he collected the RC No. 3/21 from the MHC(M) PS Saraswati Vihar along with one sealed parcel sealed with the seal of Medical Officer of the Jail hospital which he took to FSL Rohini and deposited the same in the biological department, FSL Rohini and obtained the receipt which he brought to the Police station and handed over the same to the MHC(M).

With the permission of the Court leading questions were put by the Ld. Addl. PP for the State wherein the witness has admitted that the the accused Mohinder Sharma was interrogated and his disclosure statement was recorded which is Ex.PW26/I. He has admitted that the Investigating Officer had requested many public persons to join the proceedings but none agreed and left the spot without giving their names St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 39 of113 and addresses.

The witness has correctly identified the accused Mohinder Sharma as well as the case property i.e. buttondar knife which is Ex.P1; mobile phone Nokia 1600 which is Ex.P2; box of Nokia containing mobile phone 2600 which is Ex.P3; the Nokia2600 phone which is Ex.P4; one small bag of yellow and red color, one towel type hankey of orange color having white lining, two panni of golden khaini, one wrist watch of golden color having brown colored tape (strip) which are collectively Ex.P5; SIM of the mobile number 9718006863 which is Ex.P6; earth (without blood) container which is Ex.P7 and the scooter No. DDS7045 which is Ex.P8.

In his cross examination by Ld. Defence counsel the witness has deposed that he had joined the investigations of this case on 24.05.2009 at about 2/2:30 PM. According to him, the investigating officer made departure entry at the time of leaving the police station after which the police team left the Police Station for the purpose of arrest the accused Mohinder Sharma in the Maruti Zen belonging to SI Sunil Kumar. He has deposed that within 15 minutes of leaving police station they reached Karnal By Pass and he along with police team searched the Industrial Area Sanjay Gandhi Transport Nagar till 5:30 PM. According to him, the secret informer called the Investigating Officer Inspector Baljeet on his mobile phone and he himself, SI Sunil St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 40 of113 and Ct. Narender were having service revolver and except HC Rajpal and SI Sunil all the police officials were in uniform. He has further deposed that the secret informer met them at Tpoint of Sanjay Gandhi Transport Nagar and the secret informer came inside the car who led them to Budhpur but the Investigating Officer did not brief the police party regarding the secret informer. According to the witness, he came to know about the information only after secret informer came inside the car and they reached Village Budhpur within twenty minutes . He has deposed that the secret informer was sitting on the back seat of the Maruti Zen car and the police party was not aware about the spot and it is the secret informer who led them to the spot. He has further deposed that the police party did not enter the house of accused Mohinder. He is unable to tell as to who were the inhabitants present in the house of accused Mohinder and states that the Investigating Officer did not inquire from anybody regarding the ownerships/ tenants of the house of the accused Mohinder. According to the witness, he remained there till half an hour and came back to the Police station after half an hour of reaching the house of accused Mohinder. He is unable to tell the time when Investigating Officer Baljeet came to the police station and has deposed that the Investigating Officer conducted the writing work on the spot while sitting on the scooter of accused Mohinder and the spot from where the accused Mohinder was apprehended, is surrounded by residential houses and many public persons were present there. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 41 of113 According to him, investigating officer had asked many public persons to join the police party but they refused, however the investigating officer did not gave any notice to any such person who had refused to join the police party. He has deposed that the house in question was a single storied house and none of the residents gathered at the spot when they had apprehended the accused but he is unable to tell the names of the persons/ residents who are residing on either side of the house of the accused. The witness has further deposed that in his presence the investigating officer never called the pardhan. He does not remember if the documents of the scooter were also present in the dikki. According to the witness, his statement was recorded in the police station on 24.05.2009 at about 10:30 PM but he did not mention to the investigating officer this fact that he had been directed by him to bring the scooter to the police station and has voluntarily stated that since he had brought the scooter to the police station on his directions, he thought that it was not relevant to mention this fact. Witness has denied the suggestion that no public persons were joined by the investigating officer since nothing of this kind was happened since the accused was himself called to the Police Station on 21.05.2009 and was illegally detained in the Police station and all documentation was later on done by the Investigating officer in the police station itself. He has also denied the suggestion that nothing was recovered from the possession of accused or that accused was not arrested at the time, place and manner as deposed above or that St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 42 of113 no disclosure statement was made by the accused at any point of time.

PW27 Inspector Sunil Kumar has deposed that on 19.5.2009 he was posted as Sub Inspector at Police Station Saraswati Vihar and on that day after receiving the DD No. 11A at 6:50 AM, he along with Ct. Devender reached the spot i.e. Inner Ring Road, Footpath near CNG Pump F Block, Shakurpur and found one man aged about 50 years lying there who was already dead and smeared with the blood and there was also blood on the footpath. According to him, on the spot one Perumal S/o Vadivale met them who told that the deceased was his father on which he recorded the statement of Perumal which is Ex.PW3/A and thereafter the fact of the case was informed to the SHO who reached the spot along with the staff and the SHO called the crime team. The witness has further deposed that Crime Team reached the spot and got the spot inspected and photographed and upon the inspection of body it was found that there were four injury marks on the left thigh (Jaangh) and thereafter he prepared the rukka which is Ex.PW27/A and handed over the same to Ct. Narender for getting the FIR registered after which Inspector Baljeet Singh along with Ct. Narender reached the spot to whom the investigations were handed over. According to the witness in his presence Inspector Baljeet Singh completed the inquest proceedings and the investigating officer prepared the site plan, thereafter lifted earth control, blood sample, blood stained sand in three separate plastic container which were sealed by the St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 43 of113 Investigating Officer with the seal of BSA. Thereafter the investigating officer searched the dead body and seized the articles recovered and prepared the seizure memos. The witness proved that the plastic containers containing blood, earth control and earth control smeared with blood were taken into possession and seized vide memo Ex.PW3/C and the articles recovered from the dead body were also seized vide memo Ex.PW3/B after which the dead body was sent to Mortuary of Babu Jagjeevan Ram Memorial hospital through Ct. Devender. According to him, the statement of witnesses were recorded in his presence and thereafter they came to the police station where Perumal handed over one cardboard box of mobile phone and the mobile phone bill of NOKIA 2600. The witness has testified that the bill was in the name of Ms. Mani and both the articles were taken in to possession by the Investigating Officer and the cardboard box of mobile phone was seized vide memo Ex.PW3/G and the bill was seized vide memo Ex.PW3/F. He has deposed that thereafter Inspector Baljeet Singh got the postmortem on the dead body of the deceased conducted vide postmortem report Ex.PW1/A. According to him, they came back to the police station where Ct. Devender handed over the exhibits of the deceased duly sealed with the seal of hospital to Inspector Baljeet Singh who took the same into possession vide seizure memo Ex.PW27/B. The witness has further deposed that on 24.5.2009 he again joined the investigation of this case with the investigating officer Inspector Baljeet St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 44 of113 Singh and on that day he along with the Investigating Officer Ct. Narender (No.1311), Ct. Narender (No.1603) and HC Rajpal left for investigations in a private vehicle and reached at Karnal Bye Pass Bus Stop where one secret informer met the investigating officer Inspector Baljeet Singh who informed that he accused was about to come to his house village Budhpur to take his belongings and could be apprehended if raided on which investigating officer asked four to five passers by to join the raiding party but none agreed and left the spot without telling their names and addresses. According to him, thereafter the Investigating Officer formed a raiding party and reached at Budhpur near Ashram where one person was about to start his scooter but he was overpowered at the instance of secret informer. The witness has deposed that the accused was interrogated and his name was known as Mohinder (whom the witness has correctly identified in the Court) and his formal search was conducted during which one mobile phone make NOKIA 2600 of Golden Colour was recovered from the right side pocket of the pant of the accused and on checking it was found containing a SIM bearing no. 9718006863 and it was having a camera also. Thereafter the SIM was removed from the mobile phone and mobile as well as the SIM were separately converted into two parcels and taken into possession vide seizure memos Ex.PW26/E & Ex.PW26/F. According to him, on further checking of the accused one buttondar knife was also recovered from the pocket near knee of the right leg of the pant and investigating St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 45 of113 officer measured the same on which it was found 25 cm long, its blade was of 11 cm and its handle was of 14 cm and the width of the blade was 2.9 cm and there was a button of steel by which the knife is operated and having the alphabet HUI XIONG engraved on the blade. The witness has testified that the blade was having blood stains after which the investigating officer prepared the sketch of the same vide Ex.PW26/A and the knife was converted into a parcel and sealed with the seal of BSA and taken into possession vide memo Ex.PW26/B which seal after use was handed over to him. According to the witness the front site diggi of the scooter was checked and it was also having one mobile phone NOKIA - 1600 without any SIM and thereafter the scooter no. DDS7045 LML Vespa was also taken into possession vide seizure memo Ex.PW26/C and the mobile phone NOKIA 1600 was taken into possession vide seizure memo Ex.PW26/D. The witness has further deposed that the accused was arrested in this case vide memo Ex.PW26/G and personally searched vide memo Ex.PW26/H and disclosure statement of the accused was also recorded vide Ex.PW26/I. According to the witness, on 25.5.2009 he again joined the investigations of this case with Inspector Baljeet Singh when the accused Mohinder Sharma took the police party near CNG Pump Shakurpur, Ring Road pavement and pointed out the place of incident where he along with his coaccused Arun had committed robbery on 18.5.2009 on the point of knife on which investigating officer prepared the pointing out memo St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 46 of113 which is Ex.PW27/C. The witness has correctly identified the accused Mohinder Sharma as well as the case property i.e. buttondar knife which is Ex.P1; the mobile phone Nokia 1600 recovered from the Dikki of the scooter No. DDS7045 which is Ex.P2; box of Nokia phone containing mobile phone 2600 as recovered from the accused Mohinder Sharma which box is Ex.P3 and the phone is Ex.P4; one small bag of yellow and red color, one towel type hankey of orange color having white lining, two panni of golden khaini, one wrist watch of golden color having brown colored tape (strip) as seized by the Investigating officer from the dead body which are Ex.P5 collectively; SIM of the mobile number 9718006863 which was out from the aforesaid mobile 2600 which is Ex.P6; one plastic container containing earth (without blood) which is Ex.P7 and the Scooter No. DDS7045 as seized from the accused Mohinder Sharma which is Ex. P8.

During his cross examination by Ld. Defence counsels the witness has deposed that he had joined the investigations on 24.5.2009 at about 2:30 pm at police station and investigating officer hired one Maruti Zen car in which they left for investigations but the investigating officer did not disclose the destination and only told about the investigations. According to him, they were five police officials in total and first of all they reached Wazirpur Industrial Area after which they St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 47 of113 reached Karnal ByePass at about 5:00 pm straight away from Wazirpur Industrial Area. Witness has further deposed that they all were in police uniform and the secret informer also accompanied them in Maruti Zen for village Budhpur but the investigating officer did not brief the police party in his presence with regard to the secret information prior to meeting of secret informer and they reached village Budhpur at about 6:00 PM. He has also deposed that the secret informer told the investigating officer about the address from where the accused could be arrested and the secret informer left the spot after apprehending of the accused at about 6:00 pm but he does not remember if anyone of the police party including the investigating officer, entered the house of accused Mohinder. He also does not remember the exact house number of the accused Mohinder and if the house of the accused Mohinder is multistoried or single storied. The witness is also does not remember if the investigating officer made any inquiry with regard to the ownership of house of accused Mohinder. According to him, at the time of the incident the area was not very thickly populated and was having a scattered population and the house of accused Mohinder was surrounded by other houses. He has testified that two to four persons assembled at the time when accused was apprehended and the investigating officer asked those public persons to join the investigations after apprehending the accused but they refused. Witness has further deposed that all the documentation work was done by the Investigating officer on the bonnet St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 48 of113 of Maruti Zen and the entire proceedings took about two hours time. He has also deposed that they returned to police station at about 11:30 pm in the same Maruti Zen. He has denied the suggestion that he had not joined the investigations at the time and place mentioned by him in his examination in chief or that no secret information was received at the time and place mentioned. He has also denied the suggestion that the accused Mohinder was not arrested at the time and manner deposed by him or that nothing was recovered from his person or at his instance or that no disclosure statement was made by the accused. The witness has further denied that the articles were planted upon the accused in order to falsely implicate him in this false case.

PW28 SI Narpal has deposed that on 31.10.2009 he was posted at police station Saraswati Vihar and on that day he along with Ct. Ishwar Singh were on patrolling duty and were present in the area of Shakurpur JJ Colony when at about 8 PM a secret informer informed him that a person namely Arun wanted in this case would come near Samrat Cinema at about 9 PM and could be apprehended if raided. According to the witness, he verified the fact whether Arun is wanted or not in this case from the police station and found that proceedings under Section 82/83 Cr. P.C. were pending against him after which they took their position near Samrat Cinema. According to the witness, at about 9 PM the secret informer pointed out towards a person coming from ring road side towards Samrat Cinema as the same person on which they St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 49 of113 overpowered him and made inquiries from him on which he admitted that he along with his coaccused Mohinder committed robbery near CNG pump, ring road pavement on the point of knife about 5 ½ months back. The witness has proved that after being satisfied regarding his identity the accused Arun was arrested vide memo Ex.PW28/A and personally searched vide memo Ex.PW28/B. According to him, thereafter the accused was brought to the police station and was produced before Inspector Satish who was the investigating officer of this case who also interrogated the accused after which the accused Arun made his disclosure statement vide Ex.PW28/C. He has proved that the accused Arun took the police party at spot and Insp. Satish Kumar prepared the pointing memo vide Ex.PW28/D and thereafter the accused Arun was sent to the Bhagwan Mahavir Hospital for his medical examination through Ct. Ishwar Singh.

During his cross examination by the Ld. Defence counsels witness has denied the suggestion that the accused was not apprehended near Samrat Cinema or that accused Arun did not make any disclosure statement. He has also denied that the disclosure statement Ex.PW28/C was written by the investigating officer of his own or that he had been cited as a witness on the disclosure statement only at the instance of the investigating officer to link him with the present case.

PW29 Inspector Baljit Singh is the first Investigating Officer of the present case who has deposed that on 19.5.2009 he was St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 50 of113 posted as Inspector ATO at police station Saraswati Vihar and after registration of the present FIR, investigation of this case was taken by him. According to the witness, he along with Ct. Narender No. 1603 reached at the spot where ASI Bhupender, SHO Inspector P. P. Singh, Ct. Balwan, Ct. Satpal, and Ct. Devender met them and the crime team had already reached there and taken the photographs of the scene of crime. He has proved having prepared the site plan Ex.PW29/A at the instance of Peru Mal and the crime team had submitted its report which is Ex.PW12/A. Witness has further deposed that there were blood on the footpath and he lifted earth control, blood sample and blood stained sand in three separate plastic container which were sealed with the seal of BSA and seized vide memo Ex.PW3/C. According to him, he searched the dead body and seized the articles recovered and prepared the seizure memo which is Ex.PW3/B. He has proved having prepared the inquest documents i.e. brief facts which are Ex.PW29/B; application for postmortem which is Ex.PW29/C and the death report which is Ex.PW29/D. He has deposed that thereafter the dead body was sent to Mortuary of Babu Jagjeevan Ram Memorial Hospital through Ct. Devender. According to him thereafter they came to the police station and in the police station Perumal handed over one cardboard box of mobile phone and the mobile phone bill of NOKIA 2600 in the name of Ms. Mani which is Ex.P2 after which both the articles were taken in to St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 51 of113 possession by him and seized vide memo Ex.PW3/F and Ex.PW3/G. Witness has further deposed that thereafter he got the postmortem on the dead body of the deceased vide postmortem report Ex.PW1/A and came back to the police station where Ct. Devender handed over the exhibits of the deceased duly sealed with the seal of hospital to him and he took the same into possession vide seizure memo Ex.PW27/B. According to him, on 19.5.2009, he had given the IMEI number of the aforesaid mobile Nokia 2600 to HC Rajiv Gulati for keeping the same on surveillance, who had given a letter to him on 20.5.2009 written by Sh. R. C. Saini, ACP Ashok Vihar, showing the call detail record of mobile No. 9718006863 which is Ex.PW11/A reflecting the IMEI number 356396026901613 and showing that the SIM of mobile phone number 9718006863 and also showing the first SMS at 5:46 AM on 19.5.2009. The witness has testified that on checking its frequency it was found that the calls were made repeatedly on this mobile and he collected the call details Ex.PW11/B collectively, running into 10 pages and the letter written by ACP Ex.PW11/C. He has deposed that firstly he verified the ownership of the aforesaid mobile phone and the mobile phone number 9718006863 was found in the name of one Devanand Prasad S/o Kuldeep Prasad, R/o 202 Banjara Wali Gali, Haiderpur, Delhi, and the mobile phone number 9350010957 was found in the name of one Visheshwar Singh R/o A32, Wazirpur, Industrial Area and on inquiry it was revealed that the same had been taken on false identity. According to St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 52 of113 him, upon further investigation it was found that the same number was being used by one Ram Narain Sharma and the inquiries were made from Ram Narain Sharma who disclosed that the said mobile number was being used by his son Mohinder Sharma. He has proved having made efforts to trace the accused on 24.5.2009 when he along with SI Sunil Kumar, Ct. Narender No. 1311, Ct. Narender No.1603 and HC Rajpal left for investigations in a private vehicle and reached at Karnal Bye Pass Bus Stop where one secret informer met him who informed that the accused was about to come to his house village Budhpur to take his belongings and could be apprehended if raided. The witness has further testified that he asked 45 passers by to join the raiding party but none agreed and left the spot without telling their names and addresses after which he formed a raiding party and reached at Budhpur near Ashram where one person was about to start his scooter but he was overpowered at the instance of secret informer. According to the witness, he was interrogated and his name was known as Mohinder and during his formal search one mobile phone make NOKIA 2600 of Golden Colour was recovered from the right side pocket of the pant of the accused and on checking it was found a SIM bearing no. 9718006863 and was having a camera also. The witness has further deposed that the SIM was removed from the mobile phone and mobile as well as the SIM were separately converted into two parcels and taken into possession vide seizure memos Ex.PW26/E & Ex.PW26/F and on his further St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 53 of113 checking one buttondar knife was also recovered from the pocket near knee of the right leg of the pant. The witness has proved having measured the knife on which it was found to 25 cm long, its blade was of 11 cm, handle was of 14 cm, width of the blade was 2.9 cm and there was a button of steel by which the knife is operated and having the alphabet HUI XIONG engraved on the blade. According to him, the blade was having blood stains after which he prepared the sketch of the same which is Ex.PW26/A and the knife was also converted into a parcel and sealed with the seal of BSA and taken into possession vide memo Ex.PW26/B which seal after use was handed over to SI Sunil. He has also deposed that thereafter the front side diggi of the scooter was checked and it was also having one mobile phone NOKIA - 1600 without any SIM and the scooter no. DDS7045 LML Vespa was also taken into possession vide seizure memo Ex.PW26/C. According to him, the mobile phone NOKIA 1600 was taken into possession vide seizure memo Ex.PW26/D after which the accused was arrested in this case vide memo Ex.PW26/G and personally searched vide memo Ex.PW26/H and disclosure statement of the accused was also recorded vide Ex.PW26/I. According to PW29, on 25.5.2009 he again started the investigations of this case with SI Sunil Kumar, HC Rajpal and Ct. Narender when the accused Mohinder Sharma took the police party near CNG Pump Shakur Pur, Ring Road pavement and pointed out the place of incident where he along with his coaccused Arun had committed St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 54 of113 robbery on 18.5.2009 on the point of knife on which he prepared the pointing out memo which is Ex.PW27/C. The witness has proved having moved an application before CMO vide Ex.PW29/E seeking opinion regarding use of knife on which Dr. Kulbhushan Goyel had given his detailed report vide Ex.PW1/B. He has deposed that on 29.6.2009 he sent the exhibits to FSL Rohini through Ct. Amar Singh vide RC number of which he does not remember and he obtained the NBWs of coaccused Arun. According to him during the investigation he came to know that accused Mahinder Sharma had used continuously the phone Nokia 1600 for few days. He has proved having recorded the statement of witnesses, having collected relevant documents and after completion of the investigation having filed the charge sheet. The witness has testified that on 11.11.2009 he filed an application before the competent authority Airtel, Vodaphone, Reliance for obtaining the CDRs, certificate 65B of Evidence Act and customer application form and after obtaining the aforesaid documents, he thereafter recorded the statements of Deva Nand Prasad, Suresh Mittal, Gullu Malik, Bihari Lal and Avdhesh. According to him, after completion of the investigation, the case file was handed over inspector Satish Kumar who filed the supplementary charge sheet.

The witness has correctly identified the accused Mohinder Sharma as well as the case property i.e. one buttondar knife as recovered from the accused Mohender Sharma which is Ex.P1; the mobile phone St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 55 of113 Nokia 1600 as recovered from the Dikki of the scooter No. DDS7045 and taken into possession which phone is Ex.P2; box of Nokia containing mobile phone 2600 as recovered from the accused Mohinder Sharma which box is Ex.P3 and the phone is Ex.P4; one small bag of yellow and red color, one towel type hankey of orange color having white lining, two panni of golden khaini, one wrist watch of golden color having brown colored tape (strip) which are Ex.P5 collectively; mobile SIM of the mobile number 9718006863 as taken out from the aforesaid mobile 2600 which is Ex.P6; one plastic container containing earth (without blood) as lifted from the spot which container is Ex.P7 and the scooter No. DDS7045 as seized from the accused Mohinder Sharma which is Ex. P8.

During his cross examination by Ld. Defence counsels, witness has deposed that he reached the spot on 19.05.2009 at about 9:409:45 AM along with the copy of the FIR and met the complainant Peeru Mal and also made inquiries from him. He has admitted that the case was registered under Section 302 IPC initially and after arrest of accused Mohinder the sections of robbery were added later on i.e. on 24.05.2009. He has deposed that the statement of the father of the accused Mohinder Sharma was not recorded nor he has been cited as a witness. According to him, the mobile number 9350010957 was found in the name of Visheshwar Singh but they could not trace any person by this name due to which reason he has stated that the above mobile was St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 56 of113 obtained on a fake name. He has denied the suggestion that they did not make any efforts to trace out Visheshwar Singh. According to him he had gone to the address of Visheshwar as provided in the application filed by the Visheshwar Singh with Reliance and has voluntarily added that the company could not provide them with any document on the basis of which the address was mentioned in the application and their records. He has denied the suggestion that the truth in this respect was deliberately suppressed to shield the actual accused and implicate the accused Mohinder Sharma. According to the Investigating Officer, they they left the Police Station on 24.05.2009 with respect to investigation of this case at about 2:30 PM and at that time he was accompanied by other police staff i.e. SI Sunil, Ct. Narender, Ct. Narender and HC Rajpal and they were in maruti zen which was hired from private individual. The witness has testified that the secret informer met them at Bye Pass at about 5 PM and he got the telephone call from the secret informer at about 4:30 PM when he asked him to met him at bye pass at 5 PM. He has further deposed that from 2:30 to 4:30 PM he was searching for the accused in the factories and in the industrial area where it was possible but he has not mentioned his investigations from 2:30 PM to 4:30 PM in his case dairy. He has denied the suggestion that the same was not mentioned as he had not gone to Wazirpur Industrial area or no secret informer called him on telephone at the time mentioned by him. According to the witness, he was aware of the address of the house St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 57 of113 which he was to reach when he was at bye pass and they straight away reached the address and has voluntarily added that he had previously also visited this house on 21.05.2009 and on 22.05.2009. He has also deposed that the secret informed pointed out towards the accused from a distance of about 100 meters from the accused from where the secret informer was asked to leave. He has deposed that the house where they had reached belongs to Pardhan and said Pardhan was not present there nor he was called or made a witness. According to the witness the area from where the accused was apprehended is a residential area but the population is scanty and they had asked 23 passer byes who had collected to join the police party but they refused and left but they did not ask any neighbour to join the investigations. Witness has denied the suggestion that he did not join any public persons nor asked them to join the investigations and it is for this reason that he did not take any action against any public persons for not joining the investigations. According to the witness, the writing work was completed in front of the house of accused while standing and the entire proceedings took about two and a half hours and they reached back to the police station at about 11:30 PM and the entire staff returned back. Witness has further deposed that arrival entry was made in the rojnamcha by him which also mentioned the fact about the scooter being seized but states that he has not placed this entry on record. Witness has denied the suggestion that this case was deliberately given the color of robbery cum murder in order to plant St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 58 of113 false recoveries or to work out the case. He has also denied that nothing from the possession of the deceased was taken away that is why no complaint with regard to any missing article was made by any member of the family of the deceased or that the articles of the deceased including mobile was found on the spot which was used in order to planting the same with accused Mohinder Sharma to falsely implicate him in this case. The witness has further denied that nothing incriminating was recovered at the instance of the accused persons at the time, date, place and manner deposed in my examination in chief or that accused did not make any disclosure statement and nothing incriminating was recovered at his instance or from his possession. He has denied the suggestion that the signatures of the accused were taken on papers by using coercive methods or that both the accused persons had nothing to do with the alleged offence.

PW30 Insp. Satish Kumar has deposed that on 31.10.2009 he was posted at police station Saraswati Vihar as Inspector Investigations. According to him, the charge sheet against Mohinder has already been filed but the accused Arun could not be arrested and the proceedings under Section 82 Cr.P.C. were in the process. He has deposed that on 31.10.2009 SI Narpal and Ct. Ishwar Singh received a secret information that the accused Arun wanted in this case was about to come from ring road side after which the accused Raun was arrested by SI Narpal Singh in this case. The witness has testified that the St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 59 of113 accused was produced before him by SI Narpal Singh after which he interrogated him and accused made his disclosure statement Ex.PW28/C. According to PW30, the accused Arun took them near CNG petrol Pump, Shakurpur and pointed out the pavement where he along with his associate committed the crime then he prepared the memo to this effect vide memo Ex.PW28/D and the accused was got medically examined and sent to lock up. He has proved having collected the medical examination sheets of accused Arun vide Ex.PW30/A and on the next day i.e. on 01.11.2009 having collected the police remand of accused Arun for one day. He has deposed that the accused was again medically examined vide medical examination sheet Ex.PW30/B and during police remand the accused took them to various places in Vishwanath Puri jhuggies but he could not get the weapon of offence recovered after which the accused was again interrogated and his supplementary disclosure was recorded vide Ex.PW30/C. According to him, the accused was again interrogated but he repeated the same facts after which he was sent to judicial custody. The witness has testified that he moved an application for taking the blood sample of the accused Arun which application was allowed by Ld. MM and the medical officer at Rohini Jail collected the blood sample of accused Arun and sealed the same with the paper seal and the sealed parcel was handed over to him which he took into possession vide seizure memo Ex.PW20/B. According to PW30, on 12.01.2010 he got the exhibits sent to FSL St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 60 of113 Rohini through Ct. Narender vide RC number 3/21/2010 and thereafter he got collected the result from FSL Office and placed on record. He has deposed that Insp. Baljeet Singh handed over statements, CDRs and some CAF forms and certificate U/S 65 B of Evidence Act which were incorporated in the supplementary charge sheet. He has proved having made a request Ex.PW30/D before jail superintendent Tihar to which he received response from Jail superintendent vide Ex.PW30/E. The witness has correctly identified the accused Arun in the court.

During his cross examination by Ld. Defence counsel the witness has denied the suggestion that accused Arun was deliberately shown as an accomplice of accused Mohinder Sharma in connivance with the Investigating Officer of the case or that accused Mohinder Sharma was not involved in any incident with Arun. He has further denied that no disclosure to this effect was made by accused Arun or that the same were obtained by the use of pressure. The witness has also denied the suggestion that he had not fairly investigated the case and acted in collusion and at the directions of the Investigating officer to implicate accused Mohinder Sharma in this case or that he had manufactured false documents in order to implicate the accused. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:

After completion of prosecution evidence the statements of the accused Mohinder Sharma and Arun Kumar were recorded under St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 61 of113 Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. The accused Mohinder Sharma has stated that he is the BC (Bad Character) of the area and was called by the police at Police Station 21.5.2009 and he was illegally detained till

25.5.2009 and thereafter falsely implicated in the present case. According to him, nothing was recovered from his possession or at his instance nor did he make any disclosure statement. He has stated that his signatures were obtained by the police by use of force and he has nothing to do with the present case.

Similarly, the accused Arun Kumar has deposed that he was picked up by the police from Durga chowk Bhalswa Dairy and falsely implicated in this case. According to him, nothing was recovered from him or at his instance nor did he make any disclosure statement. He has further stated that his signatures were obtained by the police and he has nothing to do with the present case. However, the accused have not lead any evidence in their defence.

FINDINGS:

I have heard the arguments advanced by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. First I propose to deal with all the allegations/ averments made by the public witness individually in a St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 62 of113 tabulated form as under and later on comprehensively.

  Sr.      Name of the                             Details of deposition
 No.          witness
PUBLIC WITNESSES:
1.       Peru Mal (PW3)        He is the son of the deceased who has deposed on the  
                               following aspects:

1. That deceased Vadivale was his father who was doing the job of Maali (Gardener) in DDA Keshav Puram and in routine his father return home from duty till 6 pm.

2. That on 18.5.2009 his father did not return to their home and at about 8:30 pm his father made a telephone call from mobile no. 9873973918 on his mobile no. 9871420729, that he would come late from the office but he did not return and thereafter, at about 10:00 pm he again called on his father's telephone and his father told him that he was just reaching at home but his father did not return on that night.

3. That he searched for his father and on the next day in the morning at about 6:30 am, he reached near CNG Petrol Pump near Britania Chowk where he found that his father was lying dead and after sometime police came to the spot.

4. That his father used to keep NOIKA phone 2600 of golden colour which was purchased in the name of his mother in December 2008 from JD Block, Pitampura.

5. That police recorded his statement which is Ex.PW3/A and thereafter the police searched the dead body of his father in which one blood stained small bag, two blood stained Golden Khaini pouches were found in the pocket and the wrist watch of his father was lying near the body of his father and one handkerchief was also recovered, which articles were seized vide memo Ex.PW3/B. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 63 of113

6. That the mobile phone of his father and the money were not found on the body of his father.

7. That police had lifted the blood stained earth, blood and earth control from the spot and put up the same in the pullandas and sealed after which it was seized vide memo Ex.PW3/C.

8. That the dead body was sent to BJRM Hospital mortuary where he identified the dead body of his father vide statement Ex.PW3/D and after the postmortem examination the dead body was handed over to them vide receipt Ex.PW3/E.

9. That he handed over to the Investigating Officer the bill of the mobile phone which was in the name of his mother Mani which bill (Ex.P2) was seized vide memo Ex.PW3/F.

10. That he also handed over the cardboard box of the mobile phone which was seized vide memo Ex.PW3/G.

11. That from the search of the dead body of his father election Icard and PAN card were not recovered as his father used to keep photocopy of the same and used to return on feet from his duty.

He has correctly identified the case property i.e. one cardboard box of NOKIA 2600 on which IMEI No. 356396026901613 was written which said cardboard box is Ex.P3; phone of NOKIA2600 which phone is Ex.P4; one small bag stained with blood, one blood stained handkerchief, two blood stained pouches of Golden Khaini and one wrist watch as found from the body of his father, which are collectively Ex.P5.

2. Gaurav Kochhar This witness has proved that in the year 2008 he was (PW7) doing the work of selling mobiles under the name and style of H.R. Enterprises at JD20A, Pitampura, DELHI and on 23.12.2008 he sold one mobile phone Nokia 2600 S gold with IMEI No. 356396026901613 to Mrs. Mani for Rs.3,000/ and the invoice in this regard is Ex.P2. According to him, the police had shown him St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 64 of113 the receipt Ex.P2 and he had identified the same as belonging to his shop.

3. Smt. Mani She is the wife of the deceased who has deposed as (PW15) under:

1. That on 23.12.2008 her son had purchased a sunehri color mobile phone make Nokia, model she did not remember from Pitampura in her name which he purchased for a sum of Rs.3,000/ which receipt of purchase is Ex.P2.

2. That the said phone was being used by her husband late Sh. Vadivale who had taken the mobile phone on 18.05.2009 when he was on duty.

3. She is unable to tell whether the make of the mobile is Nokia 2600 and whether the mobile was purchased from HR Enterprises ID 20A, Pitampura, New Delhi or whether it was bearing IMEI NO.

356396026901613 or that the mobile was bearing No. 9873973918.

She has correctly identified the cardboard box of Nokia 2600 containing the mobile make Nokia 2600 on which IMIE No. 356396026901613 was written which box is Ex.P3 and the phone is Ex.P4.

4. Gullu Malik This witness has deposed on the following aspects:

(PW16)

1. That he was having a video game shop at A3/53, Sector 11, Rohini and one Arun Sharma was his friend.

2. That he used to meet Arun at Parhladpur in the factory where Arun was working and he (witness) met Ram Narain Sharma.

3. That he was having a mobile No.9873991531 whose connection was in the name of his wife Kanchan Malik and in the year 2009 he had taken the mobile number from Ram Narain Sharma i.e. 9350010957 with whom he had got acquainted and Ram Narain took his (witness) mobile No. 9873991531.

4. That he used to communicate with Ram Narain Sharma on this number and initially when he had taken this number from Ram Narain Sharma he St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 65 of113 used to call him frequently but now Ram Narain did not communicate with him.

5. Sh. Bihari Lal This witness has deposed on the following lines:

(PW17) 1. That he was having a trading outlet at plot No.2, Khasra No. 24/17, Master Mohalla, Libaspur, Delhi42 where Ram Narain Sharma did the work of welding on temporary basis for about 2 2 ½ months on daily wages.

2. That Ram Narain Sharma had provided him with a mobile number which he was using at that time which is 9350010957 on which he (witness) used to call him (Ram Narain) from his land line number 27830009 whenever he required him on duty or whenever he did not come or report for duty.

3. That the above mobile No. i.e. 9350010957 was only being used by Ram Narain Sharma.

6. Suresh Mittal This witness has deposed as under:

(PW18) 1. That he is having a shop of mobile phone and SIM card under the name and style of Kunal communication at Shop No. 2, Gali No.10, (90/10) main road Haiderpur where he is selling a mobile phone and SIM cards.

2. That one customer by the name of Babloo had came to him along with his father Deva Nand Parshad whose name he came to know later to purchase a SIM on 20.12.2008 and he (witness) gave him a SIM connection number 9718006863 and one mobile set of Chinese company for Rs.3,200/.

3. That he (witness) also took from him election identity card for identification and ascertaining of address which was in the name of Deva Nand Parshad.

4. That the customer ID form and the copy of the identity card were sent to the company which customer application form is Ex.PW18/A and the photocopy of the identity card attached with the application form is Ex.PW18/B. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 66 of113

7. Devanand Prashad This witness has deposed on the following aspects:

(PW19) 1. That he is a resident of Bihar but his son Babloo is residing at House No. 212, Banjara Gali, Haiderpur, Delhi in the house of one Parminder Yadav on rent.

2. That he came to meet his son in Delhi off and on and on 28.12.2008 when he had came to Delhi, his son demanded a mobile phone from him on which he purchased a mobile phone of China set from Kunal Communications situated at Haiderpur and gave his Voter ID Card to obtain a connection in his name which number is 971800686 .

3. That he left for his village but he came to know that after about 45 days his son lost this mobile phone.

4. That he did not make any complaint to the police regarding the loss of mobile phone as he had to hurriedly leave for his native village for urgent work and he also did not make any report to the company to close the SIM/mobile number.

5. That at the time of purchasing of SIM card he had given his photograph and signed the customer application form and also provided him identity proof i.e. election ID Card.

He has identified his signatures on the customer application form Ex.PW18/A bearing his photograph and also his signatures at point B and the copy of the election card provided by him is Ex.PW18/B.

8. Ishwar Murti He is the brother in law (Jija) of the deceased who has (PW22) deposed as under:

1. That on 19.05.2009 he received a telephone call from Perumal the son of his brother in law (Saala) that his father had been murdered and his body was found in front of F block, Near CNG Pump, near Britania Chowk on which he went to the spot alongwith his other relatives and found that the dead body was lying soaked in blood on the foot path.

2. That he identified the dead body as that of his brother in law (Saala) namely Vadivale and St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 67 of113 thereafter they went to government hospital at Jahangir Puri where he identified the dead body and after postmortem the dead body was handed over to them.

3. That the memo regarding dead body identification is Ex.PW22/A and the memo regarding the receipt of the dead body is Ex.PW3/E. MEDICAL EVIDENCE

9. Dr. K. Goel This witness has proved having conducted the (PW1) postmortem examination on the dead body of the deceased on 19.5.2009 vide report Ex.PW1/A. He had observed the following injuries:

1. Laceration 1.5 x 0.2 cm at lateral end of right eye brow with abrasions around, abrasions 1 x 0.5cm just below right lateral canthus, 2.5 x 1 cm abrasion right forehead just above eye brow and multiple over chin.

2. Incised penetrating wound 5cm x 2 cm over middle of left thigh front about 12 cm below inguinal ligament area, placed vertically. Upper angle of the wound was more acute. On exploration the underlying soft tissues and muscles were cleanly cut. The left femoral artery in that area was found cleanly cut completely transversely with massive clots in surrounding soft tissues. The total depth of the wound was about 78cm.

3. Incised wound 2x0.5 cm transversely placed over anterolateral aspect of left thigh muscle deep about 21 cm below inguinal ligament and 13 cm above the upper margin of left knee.

4. Incised wound 5cm x 2 cm muscle deep transversely placed over lateral aspect of left thigh about 13 cm above left knee and 23 cm below inguinal ligament.

5. Incised wound 3 x 1.5cm transversely placed muscle deep over lateral aspect of left thigh just adjacent and behind injury No. 4.

He has proved that all the injuries were antimortem in nature and the injuries no.1 was caused by blunt force St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 68 of113 impact whereas injuries no. 2 to 5 were caused by sharp cutting weapon. Cause of death was hemorrhagic shock as a result of injury to left femoral artery consequent upon injury No. 2 which was sufficient to cause death in ordinary course of nature and time since death was about 1516 hours.

This witness has further proved that on 22.6.09 pursuant to the application of Inspector Baljeet Singh he examined the weapon of offence and gave his opinion according to which the injuries No. 2 to 5 mentioned in postmortem report Ex.PW1/A are possible by this weapon or similar like other weapon which opinion alongwith description of knife and its sketch is Ex.PW1/B. He has correctly identified the case property i.e buttondar knife which is Ex.P1.

10. Dr. Harpreet Kaur This witness has proved that pursuant to the directions (PW20) of the Court, she examined the accused Arun on 10.12.2009 who had been produced from Judicial Custody and the blood sample from the accused Arun by her Lab Technician Anil Kumar. She has proved her report in respect of the same which is Ex.PW20/A and states that she handed over the blood sample to Inspector Satish Kumar which was duly sealed with the seal of Medical Officer Incharge, Distt. Jail, Rohini and seized vide memo Ex.PW20/B. FORENSIC EVIDENCE:

11. Sh. V. Shankara This witness has proved having examined the exhibits Narayanan, SSA of this case and proved his reports which are (Bio.) FSL (PW5) Ex.PW5/A & Ex.PW5/B. He has proved that on biological examination of the exhibits, blood was detected on exhibits Ia (cloth bag), Ib (handkerchief), Ic (wrist watch), 2 (cotton wool swab), 3 (blood stained earth material), 4a (shirt), 4b (banian), 4c (underwear), 4d (pants with belt), 4e (a pair of chappals), 5 (blood stained gauze cloth) and 6 (knife). As per the serological examination report exhibits 1a, St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 69 of113 1b,2,4a,4b,5 and 6 showed reaction for human blood group 'B'.

He has also proved that on 12.1.2010 he examined one sample of this case and his detailed Biological Report is Ex.PW5/C and the Serological report is Ex.PW5/D. POLICE/ OFFICIAL WITNESSES (Proving investigations)

12. HC Sushil Kumar This witness has proved that on 19.5.2009 while posted (PW2) as Duty Officer in Police Station Saraswati Vihar, at about 6:50 AM he recorded DD No. 11A copy of which is Ex.PW2/A and after recording the same it was handed over to SI Sunil through Ct. Sunil.

13. ASI Santosh He is a formal witness being the Duty Offrice who has (PW4) proved having received a rukka through Ct. Narender at about 9:30 AM which was sent by SI Sunil Kumar on the basis of which and on his instructions the present FIR 249/09 under Section 302 IPC was registered computer generated copy of which is Ex.PW4/A. He has also proved his endorsement on the rukka which is Ex.PW4/B and the kayami DD no. 15A and bandi DD no.16A which are Ex.PW4/C and Ex.PW4/D.

14. Sh. Sanjeev Lakra He is the Nodal Officer from Reliance Communication (PW6) who has deposed that on 14.11.2009 a request was received from Inspector Baljeet Singh for providing the call details of mobile no. 9350010957 from 1.5.2009 to 31.5.2009. He has proved the computerized call details of the said mobile number which are collectively Ex.PW6/A; the certificate under Section 65 B of the Evidence Act which is Ex.PW6/B; the computer generated call details of above said phone which are Ex.PW6/C and the customer application form copy of which is Ex.PW6/D.

15. R.K. Singh He is the Nodal Officer from Bharti Airtel who has (PW8) proved the call details of mobile No. 9871420729 from 01/05/2009 to 31/05/2009 which is in the name of Perumal S/o Vadivale which call details are collectively Ex.PW8/A and the customer application form along with ID proof are collectively Ex.PW8/B. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 70 of113 This witness has placed on record the call details of mobile Number 9971741087 from 01/05/2009 to 31/05/2009 which connection is in the name of Sh.

Avdesh, S/o Sh. Surendera which call details are collectively Ex.PW8/C; the customer application form of Avdesh along with ID proof is collectively Ex.PW8/D; the Certificates under Section 65 B of Evidence Act for both the mobile phones which is Ex.PW8/E and the location chart is Ex.PW8/F.

16. Ajeet Singh He is the Assistant Nodal Officer from Idea Cellular (PW9) Ltd. and placed on record the call details of mobile number 9718006863 from 01/03/2009 to 31/05/2009 which is in the name of Amit Singh, S/o Jaipal Singh which call details are collectively Ex.PW9/A; customer application form along with ID proof Ex.PW9/B; cell ID chart which is Ex.PW9/C and the certificate under Section 65 B of evidence act which is Ex.PW9/D.

17. Jyotish Chandra He is the Alternate Nodal Officer from Vodafone Essar Moharana (PW10) mobile services who has proved the call details of mobile number 9873973918 from 01/05/2009 to 20/05/2009 and customer application form which is in the name of Perumal S/o Vadivale, which call details record from 12.5.2009 to 12.5.2009 which are Ex.PW10/A; customer application form along with ID proof which is Ex.PW10/B and the certificate under Section 65 B of Evidence Act which is Ex.PW10/C. He has also proved that on 12.05.2009 the above number has been transferred in the name of Vadivale and the phone has been converted into postpaid from prepaid and the call details from 12.05.2009 to 18.05.2009 are collectively Ex.PW10/D (there was no call entry after 18.05.2009) and the customer application form along with ID proof which is Ex.PW10/E. This witness has further placed on record the call details of mobile No. 9873991531 from 01.04.2009 to 30.04.2009 which is in the name of Kanchan Malik W/o Gullu Malik, the customer application form along St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 71 of113 with ID proof is Ex.PW10/F; Call details are Ex.PW10/G; Certificate under Section 65 B of Evidence Act in this regard is Ex.PW10/H and the cell ID Chart is Ex.PW10/J.

18. SI Rajiv Gulati This witness has deposed on the following aspects:

(PW11) 1. That on 20.05.2009 he was and working as clerk of Sh. R.C. Saini, ACP and also working as a Nodal Officer.

2. That he handed over to Investigating Officer the CDRs of IMEI No. 356396026901613 from 01.01.2009 to 20.05.2009 and on the analysis of the CDR it is found that on the above mobile with the above mentioned IMEI number the SIM number 9718006863 was running from 19.05.2009 at 5:46 AM till the time of taking out the call details.

3. That on inquiry it was revealed that above mentioned SIM No. was in the name of Deva Nand Parshad S/o Sh. Kuldeep Parshad, R/o 212, Banjara wali gali.

He has proved the call details running into 10 pages which are collectively Ex.PW11/A; frequency chart which is Ex.PW11/B and the letter of the ACP marked to SHO which is Ex.PW11/C .

19. SI Satpal Singh He is the Incharge of Crime Team who has proved that (PW12) on 19.05.09 at about 7:30 AM pursuant to a call from Control Room North West District he along with Ct. Mohinder, photographer, driver HC Ashok reached at ring road, near CNG patrol pump, Britannia, where he found the dead body of a person lying on the footpath whose name he came to know later as Badriwal (Vadivale) and his blood was lying at the spot. He has proved having prepared his report which is Ex.PW12/A.

20. HC Mohinder He is the photographer posted in Mobile Crime Team Singh (PW13) and has proved that on 19.05.2009 he along with the crime team reached at the spot i.e. in the ring road, F St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 72 of113 Block, Shakurpur, near patrol pump where he took the photographs of the deceased at the spot which photographs are Ex.PW13/A1 to A7 and the negatives of the same are Ex.PW13/B collectively.

21. HC Ram Charan He is the MHCM and has proved the various entries (PW14) made by him in the Register No. 19 and 21 in respect of the case properties. The entry in register No. 19 at serial No. 3738 is Ex.PW14/A; entry at serial No. 3747 is Ex.PW14/B; RC No.47/21/09 and the receipt which are Ex.PW14/C & Ex.PW14/D; entry No. 3779A which is Ex.PW14/E and entry No. 3925 which is Ex.PW14/F.

22. Ct. Amar Singh He is a formal witness who has proved that on (PW21) 29.06.2009 he took the pullanda to the FSL Rohini where he deposited the same alongwith the RC bearing No. 47/21/09 and after getting the same received at FSL Rohini, he handed over the receipt of the same to MHC (M) Saraswati Vihar. He has also proved that till such time the pulandas remained in his custody, they were kept intact.

23. Ct. Vijayan He is also a formal witness who has proved that on (PW23) 21.09.2009 he had collected two sealed pulandas from Babu Jagjeevan Ram hospital on the directions of the Duty officer and handed over the same to MHC(M) Saraswati Vihar. He has proved that till the time the pulandas were in his possession, they were intact and were not tampered.

24. Ct. Devender This witness had gone to the spot along with SI Sunil Yadav (PW24) Kumar and has proved the various proceedings conducted by the Investigating Officer. He has proved the following documents:

                               Ex.PW3/A           Tehrir
                               Ex.PW3/B           Seizure   memo   of   articles   recovered  
                                                  from the dead body of the deceased
                               Ex.PW3/C           Samples of earth lifted by the IO


St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar               Page No. 73 of113
 25.     Insp. PP Singh         This witness has also proved having visited the spot of  
        (PW25)                 incident   being   the   SHO   of   Police   Station   Saraswati

Vihar at that time. He has proved the Tehrir Ex.PW3/A on the basis of which the present case was registered.

26. Ct. Narender This witness has proved having accompanied the SHO Kumar (PW26) Inspector P.P. Singh to the spot of the incident. This witness also joined investigations along with Inspector Baljeet Singh and has proved the following documents:

                               Ex.PW3/A           Tehrir
                               Ex.PW3/B           Seizure   memo   of   articles   recovered  
                                                  from the dead body of the deceased
                               Ex.PW3/C           Seizure   memo   of   the   earth   samples  
                                                  lifted by the IO from the spot
                               Ex.PW4/A           Copy of FIR
                               Ex.PW26/A          Sketch of the knife
                               Ex.PW26/B          Seizure memo of the knife
                               Ex.PW26/C          Seizure memo of the scooter
                               Ex.PW26/D          Seizure memo of phone Nokia1600
                               Ex.PW26/E          Seizure   memo   of   mobile   phone  
                                                  Nokia2600
                               Ex.PW26/F          Seizure memo of the SIM of the mobile  
                                                  phone NOKIA 2600 
                               Ex.PW26/G          Arrest   memo   of   accused   Mohinder  
                                                  Sharma
                               Ex.PW26/H          Personal   search   memo   of   accused  
                                                  Mohinder Sharma
                               Ex.PW26/I          Disclosure   statement   of   the   accused  
                                                  Mohinder Sharma
27.     Inspector Sunil        He is the initial investigating officer who had reached  
        Kumar (PW27)           the spot.  This witness has also joined the investigations

along with Inspector Baljeet Singh and apart from the documents proved by the various witnesses, he has proved the following documents:

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 74 of113 Ex.PW27/A Rukka Ex.PW27/B Seizure memo of the samples of the deceased preserved by the doctors Ex.PW27/C Memo of pointing out by the accused Mohinder Sharma

28. SI Narpal (PW28) This witness has proved the apprehension and arrest of the accused Arun Kumar on 31.10.2009. He has proved the following documents:

                               Ex.PW28/A          Arrest memo of accused Arun
                               Ex.PW28/B          Personal search memo of accused Arun
                               Ex.PW28/C          Disclosure statement of accused Arun
                               Ex.PW28/D          Memo of pointing out by accused Arun
29.     Inspector Baljeet      He is the Investigating Officer of the present case to  
        Singh (PW29)           whom   investigations   were   handed   over   after   the  
                               registration   of   FIR.     He   has   proved   the   various

investigation proceedings conducted by him and apart from the documents proved by various witnesses, he has proved the following documents:

                               Ex.PW29/A          Site plan
                               Ex.PW29/B          Brief Facts
                               Ex.PW29/C          Application for postmortem
                               Ex.PW29/D          Death report
                               Ex.PW29/E          Application for seeking opinion on the  
                                                  weapon of offence i.e. knife
30.     Inspector Satish       This witness has proved having investigated the present  
        Kumar (PW30)           case after the arrest of accused Arun Kumar and has  
                               proved the following documents:
                               Ex.PW30/A          Medical   examination   sheet   dated  
                                                  30.10.2009 in respect of accused Arun
                               Ex.PW30/B          Medical   examination   sheet   dated  
                                                  1.11.2009 in respect of accused Arun
                               Ex.PW30/C          Supplementary disclosure statement of  
                                                  accused Arun


St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar               Page No. 75 of113
                                Ex.PW30/D          Application   to   Superintendent   Jail,  
                                                  Tihar
                               Ex.PW30/E          Response   of   the   Superintendent   Jail,  
                                                  Tihar

Coming now to the microscopic evaluation of the evidence against the accused persons.

OCULAR EVIDENCE:

Ocular evidence/ eye witness count is the best evidence in any case. Unfortunately, in the present case there is no direct ocular evidence and the entire evidence on record is scientific/ electronic and circumstantial.

MEDICAL EVIDENCE:

PW1 Dr. K. Goel has proved the postmortem report of the deceased which is Ex.PW1/A shows that on external examination five injuries were found on the body of the deceased i.e. (1) Laceration 1.5 x 0.2 cm at lateral end of right eye brow with abrasions around, abrasions 1 x 0.5cm just below right lateral canthus, 2.5 x 1 cm abrasion right forehead just above eye brow and multiple over chin. (2) Incised penetrating wound 5cm x 2 cm over middle of left thigh front about 12 cm below inguinal ligament area, placed vertically. Upper angle of the wound was more acute. On exploration the underlying soft tissues and muscles were cleanly cut. The left femoral artery in that area was found cleanly cut completely transversely with massive clots in surrounding St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 76 of113 soft tissues. The total depth of the wound was about 78cm. (3) Incised wound 2x0.5 cm transversely placed over anterolateral aspect of left thigh muscle deep about 21 cm below inguinal ligament and 13 cm above the upper margin of left knee. (4) Incised wound 5cm x 2 cm muscle deep transversely placed over lateral aspect of left thigh about 13 cm above left knee and 23 cm below inguinal ligament. (5) Incised wound 3 x 1.5cm transversely placed muscle deep over lateral aspect of left thigh just adjacent and behind injury No. 4.

He has proved his opinion that all the injuries were antimortem in nature and the injury no.1 was caused by blunt force impact whereas the injuries no. 2 to 5 were caused by sharp cutting weapon and the cause of death was hemorrhagic shock as a result of injury to left artery consequent upon injury no.2 which was sufficient to cause death in ordinary course of nature. The weapon of offence i.e. buttondar knife Ex.P1 which was recovered at the instance of the accused Mohinder Sharma, has been shows to the witness Dr. K. Goel who had given his opinion that the injuries no. 2 to 5 mentioned in the postmortem report are possible by this weapon or similar like other weapon. He has proved his opinion with regard to the weapons of offence along with the detail description and sketch of the knife which is Ex.PW1/B. He has identified the knife Ex.P1 as the same which was produced before him for giving the subsequent opinion. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 77 of113 In his crossexamination he has admitted that hemorrhagic shock was due to excessive bleeding.

In view of the above it stands established that the dead of the deceased had been caused on account of injuries caused by the weapon Ex.P1 or similar such type of weapon which was so recovered from the possession of the accused Mohinder Sharma and the injury no. 2 i.e. the incised penetraing wound 5cm x 2cm over middle of left thigh front about 12 cm below inguinal ligament area, placed vertically was sufficient to cause death in the ordinary course of nature. FORENSIC EVIDENCE:

PW5 Sh. V. Shankaranarayanan has duly proved the Biological Report in respect of the exhibits which report is Ex.PW5/A and the Serological Report which is Ex.PW5/B. He has not been cross examined by the defence counsels and his testimony has gone uncontroverted. It is evident that the blood stained handkerchief lying near the body of the deceased; clothes of the deceased including shirt, pants, underwear & baniyan; one cloth bag; one writ watch; a pair of chappal along with the blood sample were sent to FSL. As per report Ex.PW5/A blood was detected on the cloth bag, wrist watch, shirt, baniyan, underwear, pants with belt and also on the blood sample collected at the BJRM Hospital. Further, the knife Ex.P1 which had been so recovered at the instance of the accused Mohinder Sharma was St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 78 of113 also sent for FSL examination and blood was detected on the same. The Biological Report Ex.PW5/B shows that the blood group of the deceased was of 'B' Group and the knife so recovered from the possession of the accused which is Ex.P1 (Ex.6 before the FSL) was also detected to be containing the blood group 'B' thereby conclusively connecting the said knife Ex.P1 (so recovered from the person of the accused Mohinder Sharma) with the deceased Vadivale (as the said knife was detected with blood stains of the same group as of the deceased). ELECTRONIC EVIDENCE:

The entire evidence on record in the present case is electronic evidence in the form of call details record which is briefly discussed as under:

Ownership of mobile phone bearing no. 9718006863 in the name of Devanand Prashad:

The case of the prosecution is that the the phone of the deceased Vadivale i.e. Nokia - 2600 having IMEI No. 356396026901613 was put on surveillance and its call details record was obtained which is Ex.PW11/A. The analysis of the call detail record shows that the aforesaid IMEI No. was found running on SIM No. 9718006863 from 19.5.2009 at 5:46 AM. On inquiry it was revealed that the said SIM is in the name of Devanand Prashad S/o Kuldeep Prashad R/o 212, Banjara Wali Gali. The said Devanand Prashad has been examined as PW19 who has deposed that he had purchased a Chinese mobile phone and SIM St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 79 of113 Card bearing no. 9718006863 on 28.12.2008 from Kunal communications. According to Devanand Prashad, thereafter he had gone to Bihar and when he came back, he came to know that his son had lost the said mobile phone in respect of which he did not made any police complaint. The fact of purchase of the mobile phone and SIM card No. 9718006863 by Devanand Prashad also stands established from the testimony of Suresh Mittal (PW18) who has deposed that he is having a shop under the name and style of Kunal Communications at Shop No.2, Gali no. 10 (90/10) Main Road, Haiderpur and on 20.12.2008 he had sold the SIM connection number 9718006863 and one Chinese mobile to Devanand Prashad. He has proved the customer application form in the name of Devanand Prashad which is Ex.PW18/A and photocopy of the identity card attached with the application form which is Ex.PW18/B. I may mention that Ajeet Singh, Assistant Nodal Officer, Idea Cellular Ltd. (PW9) has inadvertently placed before this Court the customer application form of SIM connection no. 9718006863 which is in the name of one Amit Singh S/o Jaipal Singh. I may observe that as per the customer application form Ex.PW9/B the said connection was issued in favour of Amit Singh on 18.12.2009 i.e. after seven months of the arrest of accused Mohinder Sharma who was using the SIM No. 9718006863 at that time. The SIM connection having been remained used for about seven months, in view of the guidelines issued by TRAI St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 80 of113 the same had been reissued by Idea Cellular Ltd. to another customer i.e. Amit Singh which is not relevant for the present case. The witness Suresh Mittal (PW18) has, however, proved having sold the aforesaid SIM connection no. 9718006863 to Devanand Prashad.

Therefore, it stands established that Devanand Prashad (PW19) had purchased the SIM connection bearing No. 9718006863 along with the Chinese mobile phone on 20.12.2008 from Kunal Communication which mobile along with SIM was lost. Frequency chart of IMEI No. 356396026901613 belonging to the deceased Vadivale:

The entire investigation leading to the accused Mohinder Sharma were on the basis of the Call Details Record (Frequency Chart) of the mobile phone of the deceased Vadivale bearing IMEI No. 356396026901613. For the sake of convenience, the details of the frequency chart Ex.PW11/B and the manner in which it led the Investigating Agency to the accused Mohinder Sharma is being shown in a tabulated form and the relevant entries have been given due indications by the Court which are specified as under:

Sr. Time & Location SIM used Details of call Proved by/ No. duration of Remarks call

1. 20:28:39 ND Keshav 9873973918 Vadivale (deceased) Perumal (PW3) (8:28 PM) Puram made a call to his son Shows the 15 seconds on his phone no. presence of Dt. 18.5.09 9871420729 (Court deceased at St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 81 of113 Indication Point X1 Keshav Puram on Ex.PW11/A) where he was on duty

2. 22:14:13 ND Shakur 9873973918 Perumal made a call Perumal (PW3) (10:14PM) Pur to his father Shows the 1 second Colony, P (deceased) which it presence of Dt. 18.5.09 appears never through deceased at Block (Court Indication Shakurpur (near Point X2 on his house) Ex.PW11/A)

3. 22:14:51 ND Shakur 9873973918 Perumal made a call Perumal (PW3) (10:14PM) Pur to his father Show the presence 21 seconds Colony, P (deceased) (Court of deceased at Dt. 18.5.09 Indication Point X3 Shakurpur near Block on Ex.PW11/A) his house

4. 22:17:17 ND Shakur 9873973918 SMS received from CDR (10:17PM) Pur the Service provider Shows the Dt. 18.5.09 Colony, P with SIM No. presence of 9953405730 (Court mobile set at Block Indication Point X4 Shakurpur area on Ex.PW11/A)

5. 22:42:17 ND Haider 9873973918 SMS received from CDR (10.42PM) Pur the Service provider Shows the Dt. 18.5.09 with SIM No. presence of 9953405730 (Court mobile user at Indication Point X5 Haiderpur. While on Ex.PW11/A) body of Vadivale was at Shakurpur the person who robbed the mobile was at Haiderpur establishing that the offence was committed between 10:17 to 10:42 PM

6. 5:46:24 AM Alipur 9718006863 After the incident, CDR Dt.19.5.09 (used by first SMS received on It is at this point of accused the phone of the time that the user Mohinder deceased Vadivale changed the SIM Sharma on (Court Indication card being used by St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 82 of113 the handset Point X6) the deceased and a of deceased) fresh SIM bearing No. 9718006683 belonging to Devnand Prashad was inserted.

Further, it is noted that the presence of user shown in the area covered by the tower at Alipur. Here, it is observed that the accused Mohinder Sharma resides at village Budhpur and the tower installed at Alipur covers the area of village Budhpur.

7. 11:15:10 AM Alipur 9718006863 Father of the accused CDR 248 seconds Mohinder Sharma User is using the Dt. 19.5.09 namely Ram Narain SIM of Devanand Sharma made a call to Prashad and is at a his son from his place covered by phone No. Alipur Tower, on 9350010957 (Court which Ram Narain Indication Point X7) Sharma, father of accused called.

(The possibility of Devanand Prashad using the phone is ruled out because father of the accused namely Ram Narain Sharma does not know Devanand Prashad and frequency of calls show that it was being used by a known person i.e. his son accused St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 83 of113 Mohinder Sharma)

8. 12:08:07 PM Alipur 9718006863 Father of the accused The CDR 171 seconds Mohinder Sharma indicates and Dt. 19.5.09 namely Ram Narain proves the Sharma made a call to frequent his son from his communication phone No. between Ram 9350010957 (Court Narain Sharma Indication Point X8) and his son Mohinder Sharma on mobile.

9. 2:10:16 AM Alipur 9718006863 Accused Mohinder The CDR 118 seconds Sharma made a call to indicates and Dt. 20.5.09 his father Ram Narain proves the Sharma on his phone frequent No. 9350010957 communication (Court Indication between Ram Point X9) Narain Sharma and his son Mohinder Sharma on mobile.

10. 8:13:28 AM Alipur 9718006863 Father of the accused The CDR 220 seconds Mohinder Sharma indicates and Dt. 20.5.09 namely Ram Narain proves the Sharma made a call to frequent his son from his communication phone No. between Ram 9350010957 (Court Narain Sharma Indication Point and his son X10) Mohinder Sharma on mobile.

Frequency chart/ call details record proving that the mobile phone no. 9350010957 was being used by the father of accused namely Ram Narain Sharma:

I may observe that incidentally when the call detail records were placed on record, the relevant entries/ portions had not been highlighted due to which reason it became slightly difficult to find the St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 84 of113 relevant entries in the call details record. For the sake of convenience the various entries showing the relevant detail of the calls have been put in a tabulated form and the indications have been given by the Court as under:

Sr. Details of the entry Exhibit no. put Court No. in the Court Indication Point

1. Frequency Chart of phone no. Ex.PW11/B X11 9718006863 from 1.1.2009 till 20.5.2009 showing that maximum number of contacts were made on phone no. 9350010957 (i.e. 29 times) which no. was being used by Ram Narain Sharma

2. Call details of phone no. 9350010957 Ex.PW6/C X12 to X37 used by Ram Narain Sharma showing the calls made to Gullu Malik (PW16) and Bihari Lal (PW17)

3. Call details of phone no. 9873991531 Ex.PW10/G X38 to X60 (used by Gullu Malik) showing the frequent calls by/ from the SIM used by Ram Narain Sharma (9359910957) Mobile phone bearing no. 9530010957 used by the father of accused namely Ram Narain Sharma:

The case of the prosecution is that though the SIM No. 9530010957 was issued in the name of Visheshwar Singh, the inquiries revealed that it was on a fake name and address but the said connection i.e. bearing no. 9530010957 was being used by Ram Narain Sharma. In this regard the testimonies of Gullu Malik (PW16) and Bihari Lal (PW17) are relevant. PW16 Gullu Malik has proved that he was using St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 85 of113 the mobile phone no. 9873991531 which was in the name of his wife Kanchan Malik. He has also proved that in the year 2009 he got acquainted with Ram Narain Sharma through one Arun Sharma and he had taken the mobile number of Ram Narain Sharma i.e. 9350010957 on which he used to talk Ram Narain Sharma frequently. Further, the witness Bihari Lal (PW17) has also testified that he is having a trading outlet at plot No.2 Khasra No. 24/17, Master Mohalla, Libaspur, Delhi and Ram Narain Sharma did the work of welding on temporary basis for about two to two and a half months on daily wages. According to Bihari Lal, Ram Narain Sharma provided him with his mobile number 9350010957 which he was using at that time and he (Bihari Lal) used to call him (Ram Narain Sharma) from his land line number 27830009 whenever he required him on duty.

The aspect that the Gullu Malik (PW16) was regularly in touch with the father of accused Mohinder Sharma on his mobile no. 9350010957 stands proved from the call details record Ex.PW10/G of the SIM connection No. 9873991531 which was used by Gullu Malik showing the various calls by/ from Ram Ram Narain Sharma through his phone having SIM No. 9350010957 (Court Indication Points X38 to X60). Gullu Malik has further proved that he was in regular touch with Ram Narain Sharma for professional reasons on the above number initially when the number was given to him but lately he has no communication with him. This fact that Bihari Lal (PW17) was making St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 86 of113 calls to Ram Narain Sharma on his mobile no. 9350010957 through his land line number 28730009 also stands proved from the call details record Ex.PW6/C (Court Indication Point X12 to X37) and here I may observe that the accused Mohinder Sharma has not produced his father Ram Narain Sharma in the Court as his witness to controvert the testimony of Gullu Malik and Bihari Lal and hence, there is no reason to disbelieve what they have stated.

Details of various IMEI and SIM numbers:

For the sake of convenience, the ownership/ user of various mobile numbers are reflected in a tabulated form as under:

     Sr.     IMEI No./ SIM No.           Owned by/ used by             Proved by
  No.

1. IMEI No. 3563960269 Handset owned by Smt. ➔ Perumal (PW3) 01613 Mani (wife of the ➔ Gaurav Kochar deceased) being used by (PW7) the deceased Vadivale ➔ Smt. Mani (PW15)

2. SIM No.9873973918 In the name of Perumal ➔ Perumal (PW3) (son of the deceased) till ➔ Jyotish Chandra 11.5.09 and on 12.5.09 Mohrana (PW10) the connection was transferred in the name of Vadivale (deceased) and was converted into postpaid from prepaid.

3. SIM No. 9871420729 In the name of Perumal ➔ Perumal (PW3) and was being used by ➔ R.K. Singh (PW8) Perumal himself St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 87 of113

4. SIM No. 9718006863 In the name of Devanand ➔ Suresh Mittal Prashad (PW18) ➔ Devanand Prashad (PW19)

5. SIM No. 9873991531 In the name of Kanchan ➔ Gullu Malik Malik but was being (PW16) used by her husband ➔ Jyotish Chandra Gullu Malik Mohrana (PW10)

6. Land line no.28730009 Being used by Bihari Lal ➔ Bihari Lal (PW17)

7. SIM No. 9350010957 As per record, in the ➔ Gullu Malik name of one fictitious (PW17) person namely ➔ Bihari Lal (PW18) Vishveshwar Singh on ➔ Sanjeev Lakra fictitious address but (PW6) being used by Ram Narain Sharma, the father of accused Mohinder Sharma Use of SIM connection no. 9718006863 (belonging to Devanand Prashad) by the accused Mohinder Sharma on the mobile phone of the deceased Vadivale bearing IMEI No. 356396026901613:

The case of the prosecution is that after committing the murder of Vadivale, the accused Mohinder Sharma had put the SIM connection no. 9718006863 (stolen SIM of Devanand Prashad) in the mobile phone of the deceased which was having IMEI No. 356396026901613. The detail analysis of Call Detail Record of the mobile phone of deceased Vadivale having IMEI No. 356396026901613 which call details are Ex.PW11/A (Court Indication Point X6) revealed that on 19.5.2009 at about 5:46 AM a SMS was received on the SIM connection no. 9718006863 which was running on the said mobile St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 88 of113 phone having IMEI No.356396026901613. The initial inquiry revealed that the mobile phone belonging to Devanand Prashad had been stolen soon after its purchase and therefore, in order to ascertain who was using the SIM connection belonging to Devanand Prashad, the Frequency Chart of the no. 9718006863 was taken showing that 9350010957 was one of the most frequently used number on the said SIM. However, when the said number was traced it was found to be in the name of Visheshwar Singh R/o A32, Wazirpur Industrial Area which on inquiry was found to be a fictitious name. Therefore, the frequency chart of 9350010957 was retrieved and the other numbers reflected in the chart i.e. 9873991531 and 27830009 were traced and found to be used by one Gullu Malik and by Bihari Lal. It was only when the police traced this Gullu Malik and Bihari Lal that it was revealed that telephone no. 9350010957 was being used by one Ram Narain Sharma (though the number had been taken in the name of Visheshwar Singh). When the police reached Ram Narain Sharma and interrogated him through this Gullu Malik and Bihari Lal that it unfolded that the no. 9718006863 which was being frequently reflected in the Call Detail Records/ Frequency Chart of the 9350010957 and viceaversa was being used by the son of Ram Narain Sharma namely Mohinder Sharma. This is how police was able to finally track down the accused Mohinder Sharma.

I may specifically observe that from the perusal of the Frequency Chart Ex.PW11/B it was revealed that frequent calls (as St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 89 of113 many as 29 calls) have been made to phone no. 9350010957 from the mobile phone of the deceased having IMEI No.356396026901613 on which SIM connection no. 9718006863 was running. The inquiry by the Investigating Agency revealed that the mobile phone no. 9350010957 was in the name of one Visheshwar Singh R/o A32, Wazirpur Industrial Area but further inquiry revealed that the same had been taken on falsely identity. It was only on a sustained probe when the frequency charts of the other numbers so reflected in the Call Detail Records of 9718006683 were retrieved that it was found that the said mobile no. was being used by one Ram Narain Sharma and it was Ram Narain Sharma who disclosed that the aforesaid said mobile no. 9718006863 was being used by his son Mohinder Sharma. It is also evident from the Call Detail Record of IMEI No. 356396026901613 which is Ex.PW11/A that even on 19.5.2009 & 20.5.2009 Ram Narain Sharma had made calls to the accused on mobile phone no. 9718006863. Court Indication Point X7 shows that Ram Narain Sharma made a call to the accused Mohinder Sharma on 19.5.2009 at about 11:15 AM from his mobile phone no. 9350010957 which call lasted for 248 seconds. Further, the Court Indication Point X8 shows that Ram Narain Sharma again made a call to his son i.e. accused Mohinder Sharma on 19.5.2009 at about 12:08 PM from his mobile phone no. 9350010957 which call lasted for 171 seconds. The accused Mohinder Sharma further made a call to his father Ram Narain Sharma on 20.5.2009 at 2:10 AM which call lasted for 118 St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 90 of113 seconds (Court Indication Point X9) and on the same day i.e. on 20.5.2009 at about 8:13 AM Ram Narain Sharma made another call to accused Mohinder Sharma. (Court Indication Point X10). All the aforesaid four calls were made by using the phone of the deceased Vadivale having IMEI No.356396026901613 (or 356396026901610).

Therefore, it stands establishes from the above call detail record that the accused Mohinder Sharma was using the SIM connection bearing no. 9718006863 (belonging to Devanand Prashad) by putting the same in the mobile phone of the deceased Vadivale having IMEI No. 356396026901613 (or 356396026901610) on 19.5.2009 and 20.5.2009. It is writ large that after having committed the murder of Vadivale, the accused destroyed/ threw away the SIM used by the deceased and put the SIM of Devanand Prashad bearing no. 9718006863 since at 5:46 AM the first SMS received on the phone of the deceased having IMEI No. 356396026901613 with the SIM of Devanand Prashad and the location has been shown in the area of the tower Alipur which covers village Budhpur where the residence of the accused is situated and from where he was apprehended.

The question which has now been raised is whether it was Devanand Prashad using the stolen phone of deceased Vadivale bearing IMEI No. 356396026901613 by putting his SIM No. 9718006863 or was it the accused Mohinder Sharma who was using the stolen phone of Vadivale bearing IMEI No. 356396026901613 and the stolen SIM of St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 91 of113 Devanand Prashad bearing no. 9718006863. The Ld. Defence Counsel has vehemently argued that no theft case/ complaint has been got registered by Devanand Prashad in respect of his stolen mobile phone containing the SIM No. 9718006863 and therefore the possibility of some other person using the mobile phone of Devanand Prashad cannot be ruled out. Here, I may observe that Devanand Prashad (PW19) who has appeared before the Court has deposed that he had purchased the mobile phone for his son and had obtained the SIM number 9718006863 in his name and after four to five days of its purchase his son lost the phone. He has offered an explanation that after purchasing the phone for his son, he himself left for Bihar due to which reason the police complaint could not be lodged. Whether the police complaint had been lodged or not will not be immaterial in view of the fact that the frequency chart of the SIM No. 9871806863 Ex.PW11/B shows that most frequented number on the above SIM No. 9871806863 (belonging to Devanand Prashad) was 9350010957 (belong to Vishveshwar Singh) and it has been duly proved by Gullu Malik (PW16) and Bihari Lal (PW17) that this number 9350010957 was being used by Ram Narain Sharma and not Vishveshwar Singh. There is no reason to disbelieve their testimonies in this regard as both of them were acquainted with Ram Narain Sharma and have proved that the number given to them by Ram Narain Sharma. Further, there is nothing on record to show that Ram Narain Sharma who was using 9350010957 was known to St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 92 of113 Devanand Prashad and therefore were frequently communicating with each other. Rather, the said SIM No. 9718006683 (of Devanand Prashad) was found in the mobile set bearing IMEI No. 356396026901613 which mobile was recovered from the possession of the accused Mohinder Sharma at the time of his arrest. Ram Narain Sharma the most important witness who could have discredited the testimonies of Gullu Malik, Bihari Lal and the other prosecution witnesses with regard to the user of the above number has not appeared in the Court to depose despite the fact that he is the father of the accused and would have been interested in securing his release in case of any false implication. Therefore, under these circumstances there is no reason to discredit and discard the testimonies of Gullu Malik and Bihari Lal.

It is not the case of the accused that Devanand Prashad was known to Ram Narain Sharma. Rather, they both are unknown to each other and hence, being the most frequently used number it is only his son Mohinder Sharma who would have contacted him regularly from the SIM of Devanand Prashad. Even otherwise Devanand Prashad is a permanent resident of Bihar and his son is residing at Haiderpur whereas Mohinder Sharma is residing at village Budhpur within the coverage of Alipur tower and keeping in view the possession of the mobile phone of the deceased bearing IMEI No. 9718006683 at Alipur, it stands established and proved the case of the prosecution that it was being used St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 93 of113 by Mohinder Sharma and not by Devanand Prashad or anybody else. Avdhesh Kumar not examined as a witness:

The case of the prosecution is that one Avdhesh Kumar S/o Surender was using phone no. 9971741087 and being a friend of accused Mohinder Sharma, he used to talk with the accused on his mobile connection no. 9718006863. The said Avdhesh Kumar was cited as a witness but he could not be examined since he was not traceable. However, the fact that Avdhesh Kumar was using the mobile connection no. 9971741087 has been proved by PW8 R.K. Singh, Nodal Officer, Bharti Airtel Ltd. who has placed on record the customer application in the name of Avdhesh Kumar along with the ID proof which are Ex.PW8/D. He has also placed before this Court the call detail record of the mobile phone of Avdhesh Kumar bearing no. 9971741087 which is Ex.PW8/C showing that there were frequent calls between the number 9971741087 and 9718006863 belonging to Devanand Prashad and was recovered from the accused Mohinder Sharma.

The fact that Avdhesh Kumar used to call up Mohinder Sharma over phone no. 9718006863 and none else, also stands established from the call detail records of IMEI No. 356396026901613 (or IMEI No. 356396026901610) wherein the SIM connection no. 9718006863 was being used and the calls of the number used by Ram Narain Sharma i.e. 9350010957 are also shown. The possibility of there St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 94 of113 being a link between Avdhesh Kumar (not examined), Visheshwar Singh (non existing) and Devnanad Prashad is not possible in view of the specific deposition of Bihari Lal (PW16) and Gullu Malik (PW17) who have both specifically deposed before this court that they used to call Ram Narain Sharma on his mobile no. 9350010957. Discrepancy with regard to the IMEI no.:

It is evident from the record that as per the testimony of Perumal (PW3); Gaurav Kochar (PW7) and SI Rajeev Gulati (PW11) the IMEI No. of the mobile phone of the deceased was 356396026901613. However, in the call details record the IMEI No. was shown as 356396026901610. With regard to the aforesaid discrepancy relating to IEMI numbers not tallying pertaining to the last digit of the numbers, it is relevant to note that the first fourteen digits of the IEMI Nos. written in the seizure memo tallies with the first fourteen digits of the IEMI Nos. recorded in the call records Ex.PW11/A. The controversy pertains to the last digit recorded in the seizure memo when the handset was recovered and the last digit recorded in the call details provided by the service provider.

The same question arose before the Supreme Court, in the case of State (NCT of Delhi) Vs. Navjot Sandhu 2005 reported in Cri L.J. 3950 at page 4026, the Supreme Court dealt with the said issue as under: St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 95 of113 "One more point has to be clarified. In the seizure memo , the IMEI number of Nokia phone found in the truck was noted as ...52432. That means the last digit '2' varies from the call records wherein it was noted as ...52430. Thus, there is a seeming discrepancy as far as the last digit is concerned. This discrepancy stands explained by the evidence of PW 78 a computer Engineer working as Manager, Siemens. He stated, while giving various details of the 15 digits, that the last one digit is a spare digit and the last digit, according to GSM specification should be transmitted by the mobile phone as '0'......."

In view of the decision in Navjot Sandhu's case I hereby hold that the factum of the fifteenth digit of the IEMI Nos. recorded in the seizure memo Ex.PW26/F as Zero is on account of the GSM specification it has transmitted as '0' and I hold that there is no variation in the IMEI number.

MOTIVE FOR THE OFFENCE:

The case of the prosecution is that the murder of Vadivale who was a Gardner in the DDA Keshavpuram was robbery. In this regard the testimony of Peru Mal (PW3) the son of the deceased is relevant. It is evident from his testimony that on 18.5.2009 his father did not return home and at about 8:30 PM his father made a telephone call from mobile no. 9873973918 on his (Peru Mal) mobile no. 9871420729 that he would come late from the office but thereafter he did not return. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 96 of113 Again at about 10:00 PM Peru Mal again called on the telephone of his father who told him that he was just reaching at home but his father did not return on that night and on next day morning he started searching his father and at about 6:30 PM when he reached near CNG Petrol Pump near Britania Chowk he found that his father was lying dead in a pool of blood. Here, I may observe that CNG Petrol Pump near Britania Chowk is on the way of the deceased to his residence at Shakurpur and it is the Tower installed at Shakurpur which covers the said place. Peru Mal (PW3) has specifically deposed that his father used to keep Nokia phone, 2600 model of golden colour which phone was purchased in the name of his mother in December 2008 from JD block, Pitampura and when the body of his father was searched one blood stained small bag, two blood stained Golden Khaini pouches were found and the wrist watch and handkerchief were lying near the dead body but the mobile phone and the money were not found on the body of his father. According to the prosecution both the accused were not known to the deceased and on 18.5.2009 when the deceased was returning home in late night hours, with the sole motive to commit robbery and the murder of the deceased had been committed with this motive.

Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. Motive is indicated only to heighten the probability that the offence was committed by the person St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 97 of113 who was impelled by such motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others.

Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

Applying these settled principles of law to the facts of the present case it is evident that Peru Mal (PW3) has specifically deposed that the deceased Vadivale was using the mobile phone Nokia2600 with the number 9873973918 which mobile was purchased in the name of his mother and his testimony in this regard finds due corroboration from the testimony of his mother Smt. Mani who has also proved the said aspect St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 98 of113 and has identified the said mobile which is Ex.P4 as the same which was being used by her late husband. This mobile had been purchased from HR Enterprises, Pitampura and was bearing IMEI No. 356396026901613 and the receipt of the said mobile is Ex.P2. This bill was handed over to the Investigating Officer by Peru Mal (PW3) which bill was seized vide memo Ex.PW3/F which fact stands established and has gone uncontroverted. It has also been established that no money had been found on the body of the deceased Vadivale showing that the mobile phone and the cash amount had been robbed from him. Though no cash amount had been recovered but the stolen mobile phone used by Vadeivel had been recovered from the accused Mohinder Sharma. The sale of said mobile phone has been duly proved by PW7 Gaurav Kochhar who was working on the shop of HR Enterprises at JD20A, Pitampura as Salesman and has specifically deposed that on 23.12.2008 he sold one mobile phone Nokia 2600 S gold with IMEI No. 356396026901613 to Mrs. Mani for Rs.3,000/ which invoice is Ex.P2 bearing the signatures of his employer Mr. Dalbir Singh. In his crossexamination the witness has specifically deposed that he had brought the day book showing the above sale which day book is presumed to be correct having been maintained in the official course of business as per the provisions of Section 114 of Evidence Act and the accused has failed to controvert the aforesaid presumption. Further, SI Rajiv Gulati (PW11) has proved the Call Detail Record of the IMEI No. 356396026901613 from 1.1.2009 to St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 99 of113 20.5.2009 which call details are Ex.PW11/A and the frequency chart is Ex.PW11/B. I have gone through the Call Detail Record which is Ex.PW11/A showing that the deceased Vadivale had made three calls to the mobile phone of his son bearing no. 9871420729, first he made a call at 20.28.29 (8:28 PM) which lasted for 15 seconds (Court Indication Point X1); second call was received at 22.14.13 (10:14 PM) which lasted for only one second (Court Indication Point X2) and the third call was received at 22.14.51 (10:14 PM) which lasted for 21 seconds (Court Indication Point X3). Here, I may observe that as per the call detail record Ex.PW11/A the first call which was made at about 8:28 PM which was for 15 seconds, the location of the deceased was at Keshavpuram and the second call which was for one second (showing that it was never through) the location of the deceased has been found at Shakurpur Colony P Block (Cell Tower no. 1651) which is at the same place where the body of the deceased was found.

The aforesaid facts find due corroboration from the Call Details Record of the mobile phone of Perumal i.e. no. 9871420729 which record is Ex.PW8/A showing that Vadivale had made a call to him at 20:28 PM and thereafter Perumal had made two calls to his father Vadivale at 22.14 PM.

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 100 of113 It is further evident from the call detail record Ex.PW11/A that the last SMS received on the phone/ SIM of the deceased was from no. 9953403730 at 22:42 PM and the location was shown at Haiderpur. Further, during investigations when the call details record of IMEI No. 356396026901613 belonging to the deceased was obtained (Ex.PW11/A), it was found that the first SMS was received on the aforesaid IMEI No. through SIM No. 9718006863 at 5:46 AM on 19.5.2009 at Alipur (Court Indication Point X4) and thereafter throughout the day till 12:08 PM the location is at Alipur which changes to Swaroop Nagar at 2:52 PM and again at Alipur at 6:27 PM, thereafter to Azadpur Industrial Area at 9:54 PM and throughout the night at Alipur. It is further evident from the CDRs that this phone was being used by the accused Mohinder Sharma during late night hours i.e. till 2:00 AM, 3:00 AM during which period the location has been shown to Wazirpur Industrial Area or Shakurpur etc. thereby proving the location of the accused in the area during the late night hours.

In view of the above and also keeping in view the fact that the mobile phone belonging to the deceased and his money were not found with the dead body and also the fact that the mobile phone of the deceased was being used by accused Mohinder Sharma from the very morning of 19.5.2009, it stands established that the main motive for committing the murder of Vadivale was armed robbery and to silence the victim in case of resistance.

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 101 of113 APPREHENSION AND ARREST OF THE ACCUSED:

The case of the prosecution is that on 24.5.2009 pursuant to a secret information, the accused Mohinder Sharma was arrested from in front of his house at village Budhpur while he was about to start his scooter. In this regard the testimonies of Ct. Narender (PW26), SI Sunil Kumar (PW27) and Inspector Baljeet Singh (PW29) are relevant. They have specifically deposed that on 25.4.2009 on receipt of a secret information the accused Mohinder Sharma was apprehended and he was interrogated after which his formal search was conducted during while one mobile phone make NOKIA 2600 of Golden Colour was recovered from the right side pocket of the pant of the accused and on checking it was found a SIM bearing no. 9718006863 and was having a camera. The SIM was removed from the mobile phone and mobile as well as the SIM were separately converted into two parcels and taken into possession vide seizure memos Ex.PW26/E & Ex.PW26/F. On his further checking one buttondar knife was also recovered from the pocket near knee of the right leg of the pant which knife was measured and it was found to be 25 cm long, its blade was of 11 cm, handle was of 14 cm, width of the blade was 2.9 cm and there was a button of steel by which the knife was operated and having the alphabet HUI XIONG engraved on the blade. The blade was having blood stains after which the sketch of the knife was prepared which is Ex.PW26/A and the knife was seized vide memo Ex.PW26/B. Further, the front side diggi of the scooter was St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 102 of113 checked and it was also having one mobile phone NOKIA - 1600 without any SIM which the scooter no. DDS7045 LML Vespa and the mobile phone NOKIA 1600 were also seized vide memos Ex.PW26/C and Ex.PW26/D. All the above witnesses have deposed that the accused was thereafter arrested in this case vide memo Ex.PW26/G and personally searched vide memo Ex.PW26/H and his disclosure statement was also recorded which is Ex.PW26/I. The only defence raised by the accused Mohinder Sharma is that he is a BC (Bad Character) of the area and he was picked up by the police on 21.5.2009 and illegally detained till 25.5.2009 after which he was implicated in the present case. In this regard I may observe that the accused has not lead any evidence in his defence to prove his illegal detention in the police station. He has also not examined his father Ram Narain Sharma to controvert the evidence adduced before the Court which shows that it was Ram Narain Sharma who was using mobile no. 9350010957. Further, in his statement under Section 313 Cr.P.C. the accused Mohinder Sharma has contradicted himself. At one place he has stated that being a BC (Bad Character) of the area he was called by the police to Police Station on 21.5.2009 whereas at another place he stated that he was picked up the police.

Ld. Counsel for the accused Mohinder Sharma has vehemently argued that despite the availability of large number of public persons, no witness has been joined during investigations and arrest of St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 103 of113 the accused. In this regard, I may observe that a valid explanation is forthcoming from the testimony of Inspector Baljeet Singh (PW29) who has testified that he made efforts to join public persons during the proceedings but they did not join the proceedings and left without disclosing their names and addresses. The accused being a Bad Character of the area it is only natural that none of the neighbours would have been prepared to join the investigations. Therefore, I hold that non joining of public persons will not be fatal to the case of prosecution.

In view of the above, I hereby hold that the apprehension and arrest of the accused stands duly proved and established. RECOVERY OF THE ROBBED MOBILE PHONE OF THE DECEASED AND THE WEAPON OF OFFENCE FROM THE POSSESSION OF THE ACCUSED:

The case of the prosecution is that pursuant to a secret information the accused Mohinder Sharma, who was about to start his two wheeler scooter bearing registration No. DDS 7045 LML Vespa, was apprehended on 24.5.2009 and on his formal search a mobile phone make Nokia - 2600 of Golden Colour was recovered from the right side pocket of his pant. On checking the said mobile phone, the SIM bearing no. 9718006863 was found inside the said mobile phone which mobile phone along with the seal was seized vide memo Ex.PW26/E. Further, one buttaondar knife was also recovered from the pocket near knee of the right leg of the pant worn by the accused. The blade of the knife was St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 104 of113 having blood stains and after preparing the sketch of the knife (Ex.PW26/A), it was seized vide memo Ex.PW26/B. The LML scooter was also searched and another mobile phone make Nokia1600 without any SIM was found which was seized vide memo Ex.PW26/D and the scooter was taken into possession vide memo Ex.PW26/C. Thereafter the accused was interrogated wherein he admitted his involvement in the present case.

Ld. Counsel appearing on behalf of the accused has vehemently argued that nothing incriminating was recovered from the accused Mohinder Sharma and the mobile phone and knife was planted upon him. I have considered the submissions made before me. It is evident from the record that the knife Ex.P1 so recovered from the possession of the accused Mohinder Sharma (from the pocket of the pants near the legs) was produced before the Autopsy Surgeon Dr. K. Goel (PW1) for giving opinion and after examining the same Dr. K. Goel has opined that the injuries no. 2 to 5 mentioned in the postmortem report Ex.PW1/A could be possible by the said weapon or similar kind of weapon, which opinion along with the sketch of knife is Ex.PW1/B. Further, the FSL report (Biological Report) Ex.PW5/B also shows that blood of the deceased (B Group) was found on the blade of the knife. This conclusively connects the accused Mohinder Sharma with the commission of offence.

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 105 of113 WHETHER SECTION 302 IPC OR SECTION 304 IPC:

The Ld. Defence Counsel has vehemently argued that if we go by the evidence put forward by the prosecution, the case at the most falls within the provisions of Section 304 Indian Penal Code the stab injury being given on the leg and not on any vital organ. I have considered the submissions made before me by the Ld. Defence Counsel and I am not inclined to agree with the same. Firstly the background of the accused shows that he is a habitual criminal having involved himself in many other cases of theft, robbery and even murder; Secondly in view of the fact that the main motive of the offence was to commit robbery and in order to facilitate the same he had brought with him the knife which he used for stabbing the deceased which proves the intention so attributed to the accused which is to silence his victim in case of any resistance, and lastly in view of the fact that as many as four stab injuries had been given to the deceased damaging his femoral artery resulting into his death. Keeping in view the aforesaid, under no circumstances, it can be held that the case of the accused can be brought under any of the explanations so provided under Section 299 Indian Penal Code or exceptions to Section 300 Indian Penal Code more so since the opinion of the doctor also shows that the injury no.2 i.e. incised penetrating wound 5cm x 2 cm over middle of left thigh front about 12 cm below inguinal ligament area, placed vertically was sufficient to cause death. In my considered opinion, the case of the accused cannot be covered St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 106 of113 under Section 304 IPC and I hereby hold the accused Mohinder Sharma guilty of the offence under Section 302 IPC.

ALLEGATIONS AGAINST THE ACCUSED ARUN KUMAR:

The case of the prosecution is that in furtherance of their common intention both the accused Mohinder Sharma and Arun Kumar committed robbery upon Vadivale and robbed his mobile phone and money. However, the only incriminating material against the accused Arun Kumar is his disclosure statement and the disclosure statement of main accused Mohinder Sharma. Not even a single witness has deposed against him and nothing incriminating has been recovered from the possession of the accused or at his instance. Therefore, under these circumstances, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Arun Kumar. FINAL CONCLUSION:

In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 107 of113

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Applying the above principles of law to the present case it is evident that it stands established from the record that the deceased Vadivale who was working as a Gardner in DDA, Keshavpuram was going towards his house on the night of 18.5.2009 and on the way he was robbed by the accused Mohinder Sharma of his mobile phone and the money on the point of knife. It also stands established that in the process of committing robbery, the accused Mohinder Sharma caused as many as four stab injuries with the help of knife and one injury by blunt force. It has also been proved and established that thereafter accused Mohinder Sharma threw/ destroyed the SIM in the phone of deceased and put another SIM bearing no. 9718006863. The prosecution has duly proved that the son of the deceased namely Perumal provided the copy of the bill of mobile phone used by his father Vadivale after which the IMEI St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 108 of113 No. 356396026901613 was put on surveillance and its call details were obtained which showed that the SIM connection no. 9718006863 was running on the said IMEI No. and the first SMS was received at 5:46 AM on 19.5.2009. It has also been established that on verification the aforesaid mobile no. 9718006863 was found in the name of Devanand Prashad who was interrogated and it was found that Devanand Prashad had lost the phone containing the above SIM. It has also been proved and established that a large number of calls were made to phone no. 9350010957 from the SIM No. 9718006863 by using the mobile phone of the deceased having IMEI No. 356396026901613 which SIM No. 9350010957 was found in the name of Visheshwar Singh but it was revealed that the said connection was taken on falsely identity and it was in fact being used by one Ram Narain Sharma. It further stands established that Ram Narain Sharma disclosed that it was his son Mohinder Sharma who was using the SIM connection No. 9718006863. It further stands conclusively proved that on 24.5.2009 pursuant to a secret information the accused Mohinder Sharma was arrested from near his house at village Budhpur while he was trying to start his two wheeler scooter bearing no. DDS 7045 and from the possession of the accused the mobile phone of the deceased i.e. Nokia 2600 of Golden Colour was recovered in which the SIM connection no. 9718006863 was put. It also stands established that one buttondar knife (blood stained) was recovered from the pocket near knee of the right leg of the pant and another mobile St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 109 of113 phone without any SIM was recovered from the front diggi of the scooter. Further, it stands established from the forensic evidence that the knife so recovered from the possession of the accused was having blood group of the deceased Vadivale which connects the accused Mohinder Sharma to the commission of offence. The medical evidence on record shows that the cause of death was hemorrhagic shock as a result of injury to left femoral artery consequent upon injury No. 2 (i.e. incised penetrating wound 5cm x 2 cm over middle of left thigh front about 12 cm below inguinal ligament area, placed vertically) which was sufficient to cause death in ordinary course of nature. It has also been established and proved beyond reasonable doubt that the injuries No. 2 to 5 mentioned in postmortem report were possible by the weapon so recovered from the accused Mohinder Sharma or similar like other weapon.

In so far as the accused Mohinder Sharma is concerned the prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 110 of113 corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.

It has been proved that the handset having IEMI No. 356396026901613 was being used by the deceased Vadivale just before his death as evident from the call record and that the said handset was in the possession of the accused soon after the death of the deceased, inasmuch as, call detail record shows that the mobile number 9718006863 which number was being used by the accused Mohinder Sharma, was being used in the said handset with effect from 19.5.2009. Further, the factum of the possession of the said handset by the accused Mohinder Sharma is reinforced by the fact that the said handset was recovered from his possession. Further, independent of the actual recovery of the handset from the accused, there is unimpeachable evidence to prove that the mobile phone of the deceased came in possession of the accused within seven hours of the death of the deceased as reflected from the Call Detail records. In view of the aforesaid, I hereby hold the accused Mohinder Sharma guilty of the offence under Section 394/397 read with Section 302 Indian Penal Code. Further, it stands established from the record that the knife, in contravention of the Gazette Notification issued by the Delhi Administration was recovered from the possession of the accused Mohinder Sharma and hence, I hold him guilty of the offence under St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 111 of113 Sections 25/27 of Arms Act.

In so far as the accused Arun Kumar is concerned, the only incriminating material against the accused Arun Kumar is his disclosure statement and the disclosure statement of main accused Mohinder Sharma. Not even a single witness has deposed against him and nothing incriminating has been recovered from the possession of the accused or at his instance. I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. The materials brought on record by the prosecution are insufficient to hold that the accused Arun Kumar was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused Arun Kumar. Crucially, the materials and evident on the record do not bridge the gap between "may be true"

and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Arun Kumar, beyond reasonable doubt and hence, benefit of doubt is being St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 112 of113 given to them who are acquitted of the charges under Section 394/397/302 Indian Penal Code.

Case be listed for arguments on the point of sentence qua the convict Mohinder Sharma on 12.1.2012.

Announced in the open court                                        (Dr. KAMINI LAU)
Dated: 7.1.2012                                                    ASJII(NW)/ ROHINI 




St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar       Page No. 113 of113
      IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
         JUDGEII(NORTHWEST): ROHINI COURTS: DELHI


Session Case No. 1150/09
Unique Case ID No.: 02404R0225912009

State                            Vs.              (1)     Mohinder Sharma
                                                          S/o Ram Naraian Sharma
                                                          R/o Ashram Wali Gali,
                                                          Pradhan Ka Makaan,
                                                          Village Budhpur, Delhi
                                                          (Convicted)

                                                  (2)     Arun Kumar
                                                          S/o Sh. Jagdish
                                                          R/o Jhuggi No. 6,
                                                          Vishwanathpuri,
                                                          Bhalswa Dairy, Delhi
                                                          (Acquitted)
FIR No.:                         249/09
Police Station:                  Saraswati Vihar
Under Section:                   302/394/397 IPC and 25/27 Arms Act 

Date of Conviction:              7.1.2012
Arguments heard on:              12.1.2012/ 18.1.2012
Date of sentence:                24.1.2012

APPEARANCE:

Present:        Sh. Taufique Ahmed, Additional Public Prosecutor for the 

                State.

Convict Mohinder Sharma in Judicial Custody with Amicus St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 114 of113 Curiae Sh. Sachin Dev Sharma Advocate.

ORDER ON SENTENCE:

Vide my detailed judgment dated 7.1.2012, the accused Mohinder Sharma has been held guilty of the offence under Sections 394/397 read with 302 Indian Penal Code and Sections 25/27 of Arms Act. However, the accused Arun Kumar has been acquitted of the charges under Sections 394/397/302 Indian Penal Code.

The deceased Vadivale a Gardner (Maali) in DDA Keshavpuram had been murdered by the accused Mohinder Sharma a habitual criminal and robbed of his mobile phone and cash. On 18.5.2009 the deceased Vadivale had got late in his office at Keshav Puram and after 10:00 PM while Vadivale was walking towards his house at Shakurpur and reached near CNG Petrol Pump, he was robbed by the accused Mohinder Sharma of his mobile phone and the money on the point of knife as a result of which the death of Vadivale was caused.

In the process of committing robbery, the accused Mohinder Sharma caused as many as four stab injuries with the help of knife and one injury by blunt force. Thereafter accused Mohinder Sharma threw/ destroyed the SIM in the phone of deceased and put another SIM bearing no. 9718006863. The son of the deceased namely Perumal provided the copy of the bill of mobile phone used by his father Vadivale after which the IMEI No. 356396026901613 was put on surveillance and its call details were obtained which showed that the SIM connection no. St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 115 of113 9718006863 was running on the said IMEI No. and the first SMS was received at 5:46 AM on 19.5.2009. On verification the aforesaid mobile no. 9718006863 was found in the name of Devanand Prashad who was interrogated and it was found that Devanand Prashad had lost the phone containing the above SIM. A large number of calls were made to phone no. 9350010957 from the SIM No. 9718006863 by using the mobile phone of the deceased having IMEI No. 356396026901613 which SIM No. 9350010957 was found in the name of Visheshwar Singh but it was revealed that the said connection was taken on falsely identity. Thereafter the frequency chart of 9350010957 was retrieved and the other numbers reflected in the chart i.e. 9873991531 and 27830009 were traced and found to be used by one Gullu Malik and by Bihari Lal. It was only when the police traced this Gullu Malik and Bihari Lal that it was revealed that telephone no. 9350010957 was being used by one Ram Narain Sharma (though the number had been taken in the name of Visheshwar Singh). When Ram Narain Sharma was interrogated, he disclosed that it was his son Mohinder Sharma who was using the SIM connection No. 9718006863.

On 24.5.2009 pursuant to a secret information the accused Mohinder Sharma was arrested from near his house at village Budhpur while he was trying to start his two wheeler scooter bearing no. DDS 7045 and from the possession of the accused the mobile phone of the deceased i.e. Nokia 2600 of Golden Colour was recovered in which the St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 116 of113 SIM connection no. 9718006863 was put. One buttondar knife (blood stained) was also recovered from the pocket near knee of the right leg of the pant and another mobile phone without any SIM was recovered from the front diggi of the scooter. The forensic evidence on record established that the knife so recovered from the possession of the accused was having blood group of the deceased Vadivale which connects the accused Mohinder Sharma to the commission of offence. The medical evidence on record shows that the cause of death was hemorrhagic shock as a result of injury to left femoral artery consequent upon injury No. 2 (i.e. incised penetrating wound 5cm x 2 cm over middle of left thigh front about 12 cm below inguinal ligament area, placed vertically) which was sufficient to cause death in ordinary course of nature.

There was no eye witness to the incident and the conviction of the accused Mohinder Sharma is purely on the basis of conclusive electronic and forensic evidence. The accused Arun Kumar has been acquitted whereas the accused Mohinder Sharma has been held guilty of the offence under Sections 394/397 read with 302 Indian Penal Code and Sections 25/27 of Arms Act and accordingly convicted.

Heard arguments on the point of sentence. The convict Mohinder Sharma is aged about 33 years and having a family comprising of aged father, two younger brothers and one unmarried sister. The convict has stated that he is eight class pass and was doing St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 117 of113 the work of iron fabrication. As per the report of the Investigating Officer, apart from the present case, the convict has involvements in as many as 15 other cases details of which are as under:

1. FIR No. 162/06, PS Model Town, under Section 379/356/34 IPC wherein he has been discharged.

2. FIR No. 167/06, PS Jahangir Puri, under Section 379/356/34 IPC wherein he has been acquitted.

3. FIR No. 177/06, PS Adarsh Nagar, under Section 25/54/59 of Arms Act (fate of the case is unknown).

4. FIR No. 180/06, PS Adarash Nagar, under Section 25/54/59 of Arms Act wherein he has been acquitted.

5. FIR No. 297/04, PS Adarsh Nagar, under Section 25/54/59 of Arms Act wherein he has been convicted (for period already undergone) .

6. FIR No. 361/02, PS Mukherjee Nagar, under Section 25/54/59 of Arms Act wherein he has been acquitted.

7. FIR No. 527/07, PS Adarsh Nagar, under Section 457/380 IPC (fate of the case is unknown).

8. FIR No. 163/01, PS Adarsh Nagar, under Section 27/54/59 of Arms Act wherein he has been convicted (for one month).

9. FIR No. 529/2000, PS Adarsh Nagar, under Section 27/54/59 of Arms Act wherein he has been acquitted.

10. FIR No. 427/99, PS Adarsh Nagar, under Section 25/54/59 of St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 118 of113 Arms Act wherein he has been acquitted.

11. FIR No. 73/1996, PS Mukherjee Nagar, under Section 302 IPC wherein he has been acquitted.

12. FIR No. 137/1996, PS Model Town, under Section 329/356 IPC (fate of the case is unknown).

13. FIR No. 136/1996, PS Model Town, under Section 307/302 IPC wherein he has been acquitted.

14. FIR No. 129/96, PS Model Town, under Section 386/329 IPC (fate of the case is unknown).

15. FIR No. 691/1996, PS Mukherjee Nagar, under Section 307/34 IPC wherein he has been acquitted.

The Ld. Amicus Curiae appearing on behalf of the convict Mohinder Sharma has vehemently argued that though the convict is involved in other cases but in most of the cases he has been acquitted or discharged and he has not been convicted for any heinous offence. He requests that a lenient view be taken against the convict.

On the other hand, the Ld. Additional Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts Mohinder Sharma. It is also stated that the convict St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 119 of113 has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life. He has prayed that a strict punishment be awarded to the convict Mohinder Sharma.

I have considered the submissions made before me. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.

The necessity of there being a proportion between the offences and punishment has been long felt. However off late various judgments of the higher courts of the land and various jurists have tried to provide certain rules to this moral arithmetic.

(i) The punishment sought to be inflicted for any given offence should be such that the evil of the punishment must be made to exceed the advantage of the offence.

ii) The more deficient in certainty a punishment is, the severer it should be.

iii) The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it, and

iv) Same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some regard to the circumstances which effect sensibility.

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 120 of113 However, at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.

In criminal appeal no.528/2009 and death reference number 1/2009 Hon'ble High Court of Delhi in its judgment dated 31/8/2009 observed that the Court has to see as to whether the case falls in the category of the Rarest of Rare i.e an extreme form of being extremely rare within the larger category of rare or not. Thus, it has to be established that the case falls in the category of the rarest of the rare. Making a reference to their earlier decision as rendered in death reference number 1/2008, titled State Vs. Raj Kumar Khandelwal Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Ms. Justice Indermeet Kaur of the Delhi High Court further referred to the summary of various judicial pronouncements as made by them while considering the mitigating factors and the aggravating factors. The various judicial pronouncements in this regard are summarized as under: A bird's eye view of various judicial decisions reveal that Courts have considered the under noted circumstances, as mitigating: lack of any prior criminal St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 121 of113 record as held in the decision reported as 2006 EWHC 1555 (OQ) In Re. Butters'; the age of the offender being too young or too old as held in the decision reported as AIR 1974 SC 799 Ediga Anamma Vs. State of Andhra Pradesh; the character of the offender i.e how the offender is perceived in the society by men of social standing; the probability of the offenders' rehabilitation, reformation and readaptation in the society; whether the offence was committed under a belief by the assailant that he was morally justified in doing so; or that the accused acted under the duress or domination of another person as held in the decision reported as 1982 (3) SCC 24 Bachan Singh Vs. State of Punjab; commission of the offence at the spur of the moment without any premeditation; or the offender being provoked (for instance by prolonged stress) in a way not amounting to the defence of provocation, as held in the decisions reported as 2008 EWHC 36 (QB) Re. Rahman and AIR 1998 SC 2821 A. Devendran Vs. State of Tamil Nadu; a belief by the offender that the murder was an act of mercy as held in the decision reported as 1994 (Supply) 3 SCC 143 Janki Dass Vs. State (Delhi Administration); a guilty plea by the offender or his voluntarily surrendering before the authorities and his being genuinely remorseful as held in the decisions reported as (2008) EWHC 92 (QB) In Re. Rock and (2006) EWHC 1555 (QB) In Re.

Butters'; that the offender acted to any extent in self defence; that his intention was merely to cause serious bodily harm rather than to kill; that the victim provoked or in any way contributed to the crime, as held in the decision reported as AIR 1999 SC 1699 Kumudi Lal Vs. State of U.P. Lastly, in the decisions reported as St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 122 of113 AIR 2007 SC 2531 Swami Shradhanand @ Murali Manohar Mishra Vs. State of Karnataka and 2007 Cri. L.J. 1806 Shivu & Anr. Vs. High Court of Karnataka & Anr., it was held that in cases of conviction being based on circumstantial evidence a lenient view should be taken on the issue of sentence. Aggravating factors/circumstances have been opined to be; the accused having undergone previous convictions and his proving to be a future danger/threat or menace to the society considering aspects like criminal tendencies, vagabond lifestyle, drug abuse etc. as per the decision reported as (2008) EWHC 719 (QB) In Re. Miller; offender being in a dominating position to the victim or in a position of trust and has abused the trust; anti social or socially abhorrent nature of the crime i.e where the offence arouses social wrath and shakes the confidence of the people in any social institution; a crime committed for a motive which evinces total depravity and meanness for instance, a financial gain; where the magnitude of the crime is large i.e there are more than one victim; where the crime is committed in an extremely brutal, grotesque, diabolical revolting or dastardly manner so as to arouse extreme indignation of the community as held in the decision reported as 1983 (3) SCC 470 Machhi Singh Vs. State of Punjab;

significant degree of planning or premeditation and lack of remorse as held in the decision reported as AIR 2005 SC 2059 Holiram Bordoli Vs. State of Assam; the victim being vulnerable due to age or physical infirmity as held in the decision reported as 2008 (110) Bom. LR. 373 State of Maharashtra Vs. Haresh Mohandass Rajput; mental or physical suffering inflicted on the victim before the death; victim being a public service provider or performing a public duty at the time when St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 123 of113 the crime was committed, as held in the decision reported as (1977) 431 US 633 Roberts Vs. Louisiana. Lastly, the offender attacking sovereign democratic institutions as held in the decision reported as 2003 (6) SCC 641 Navjyot Sandhu @ Afsan Guru Vs. State".

Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009 examined another important facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249 wherein the Hon'ble Supreme Court of India had observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through the instrumentality of law. That ought not to be done, save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.

The Hon'ble Mr. Justice Pradeep Nandrajog further considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 124 of113 i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a higher category, where the Court, in a rare case, but not the rarest of the rare, would clip said benefit being extended by directing that the accused shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of rare cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years. It is, therefore, evident that the courts are required to draw a virtual balance sheet listing the mitigating and the aggravating circumstances against each other and then forming an opinion as to St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 125 of113 where does the fulcrum rest. The various aggravating circumstances are to be considered in the light of the aforesaid mitigating circumstances which also includes in itself the aspect of young age of the convict and his conduct during the course of trial.

Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors in the present case is that the convict Mohinder Sharma is a young unmarried man of 33 years with aged father and unmarried sister. The aggravating factors are that the murder of deceased Vadivale a poor Gardner working with the DDA had been committed in cold blood only for money without any instigation. There was no previous animosity between the convict and the victim and the intent was solely monetary gain. The convict Mohinder Sharma is a desperate criminal for whom life has no value and he does hesitate to take law in his hands and ruthlessly silences his victims at slightest resistance as has happened in the present case. The details of the involvements of the convict Mohinder Sharma show how he has graduated in crime over the years from being a local criminal involved in petty thefts, chain snatching and extortions to a professional robber and killer. His large scale involvements coupled with high rate of acquittal is indicative of the extent of the desperation of the convict and his fear in the minds of his victims.

St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 126 of113 The Courts of law cannot ignore the conditions prevailing in the Country where the law and order situation has deteriorated and worsened in the resent past. Young persons robbing innocent victims by putting them in fear of death with unhesitant and indiscriminate use of dangerous weapons on them whether or not they offer any resistance, thereby spreading terror in the society and adversely affecting the social order and faith of the people in the system. There cannot be a disconnect between the sentences so imposed by the Court on such persons involved in criminal activities and the aspirations of those who have faith in the Justice System. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463). No leniency can be shown to persons who have no respect for life. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced.

In view of my aforesaid discussion, I am of a considered opinion that this case cannot be put on the same pedestal as other St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 127 of113 ordinary murder cases. It is also true that punishment in every case does send a message to the community at large. Thus besides a number of other factors to be considered one of the relevant factor also to be kept in mind by the court while deciding or awarding any punishment to a convict for any given offence is the sentiments of the community or the message which may travel to the community at large and the fact that it may deter similar other such like offenders. Hence, the present case can be easily classified as a 'Rare Case' which calls for the exercising of alternative options by the court. I therefore, award the following sentences to the convict Mohinder Sharma:

1. The convict Mohinder Sharma is sentenced to Rigorous Imprisonment for life with the direction that he shall not be considered for grant of remission till he undergoes an actual sentence of twenty (20) years and fine for a sum of Rs.1,00,000/ for the offence under Section 394/397 read with 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one year. The total fine of Rs.1,00,000/ (Rs. One lac) if recovered, shall be given to the family of the deceased Vadivale as compensation under Section 357 Cr.P.C.

2. Further the convict is sentenced to Rigorous Imprisonment for a period of Three (3) Years and fine of Rs.2,000/ for the offence St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar Page No. 128 of113 under Section 25/27 of Arms Act. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.

Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.

The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.

One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his jail warrant.

File be consigned to Record Room.

Announced in the open court                                     (Dr. KAMINI LAU)
Dated: 24.01.2012                                             ASJ (NW)II: ROHINI




St. Vs. Mohinder Sharma, Etc., FIR No.249/09, PS Saraswati Vihar         Page No. 129 of113

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State vs . (1) Mohinder Sharma on 24 January, 2012