Delhi District Court
State vs . Rajesh I.D. No. 495/16 on 4 February, 2017
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, second floor, Karkardooma
Courts Complex, Delhi
State Vs. Rajesh I.D. No. 495/16
FIR No.228/2011 S.C. No.25/14
PS New Usmanpur decision reserved on: 30.01.2017
U/s : 302/392/397 IPC date of decision : 04.02.2017
In the matter of
State ...State
versus
Rajesh son of Sh. Satya Prakash
R/o Mohalla Bhim Nagar, Hardwa Ganj,
Ram Ghat Road, Aligarh, U.P. ...Accused
J U D G M E N T
1.1 (Gist of matrix of case of parties) - Accused Rajesh has been chargesheeted and charged for allegations that in the intervening night of 27/28.06.2011 in front of Shastri Park Metro Depot, in the northern direction of ISBT Road, in Khadar area, he committed murder of Anand Raut by using knife and also during such time of between sunset and sun rise, he robbed him of his ATM card, clothes, wallet and his other documents which he was carrying visavis the accused used deadly weapon of knife while committing the robbery.
The accused denied the allegations and defended the charges that neither he robbed the said Anand Raut nor he had committed murder and there is no direct or circumstantial evidence against him. He S.C. No.25/14 State Vs. Rajesh Page 1 of 42 has been shown involved and implicated falsely. It is the job of some one else and there is no fair or proper investigation by the police.
Whereas, the State has juxtaposition stand Anand Raut has been murdered and robbed of his belongings and while committing the robbery, a deadly weapon knife was used. It is not a case of direct evidence but of circumstantial evidence, which exists and makes out a complete chain to prove the guilt of accused.
1.2.1 Since facts or defences are scattered and it is necessary to settle down in precise the case of each side.
1.2.2 The case of prosecution is that on 25.6.2011 Mr Anand Raut (since deceased) was coming by train from Indore to New Delhi for writing his BEL examination scheduled for 26.6.2011 at Janakpuri, Delhi and during journey accused Rajesh met him in the train at Ujjain, they befriends and reached Delhi. Rajesh was knowing about Delhi and Anand Raut remained with accused, even Rajesh also accompany him at examination center. After examination, Anand Raut's friend Mr Mahesh Prajapati (now PW5), [who also came Delhi for writing the same examination but his examination center was in Rohini, Delhi], contacted Anand Raut on telephone and then they met each other in Chandni Chowk, accused Rajesh had also guided Mahesh Prajapati to reach Chandni Chowk from Rohini. Mahesh Prajapati also met Rajesh vis a vis all the three had stayed in Bodh Vihar in Motia Khan, Paharganj, Delhi during the night of 26/27.6.2011. In the morning of 27.6.2011, they left Bodh Vihar, Motia Khan, Paharganj, they boarded the bus but Mahesh Prajapati took ticket for next stop as he had to S.C. No.25/14 State Vs. Rajesh Page 2 of 42 catch train for his residence ( Nimach, Madhya Pradesh) but said Anand Raut & accused Rajesh had to go for NOIDA and other places in the city. The accused had seen that Anand Raut had ATM card and other valuables, the accused formed a design to rob him and in the evening of 27.6.2011, he took Anand Raut at deserted place/spot and asked Anand Raut to hand over valuable and on his refusal to handover the same, accused murdered Anand Raut with deadly weapon of knife, which he had bought from the market. He also robbed of his belongings and mobile handset. Accused took those articles at his native place in Aligarh. On the basis of surveillance of mobile phone/IMEI number of mobile handset, he was found using the handset, his location was ascertained, he was using sim cards of his parents in the mobile handset of Anand Raut. Ultimately he was arrested and mobile phone was recovered him besides other articles and he also got recovered weapon of knife.
1.2.3 The plea of accused is that he came Delhi on 24.6.2011 to distribute invitation cards of his sister's marriage, which was scheduled for 9.7.2011. Anand Raut met accused at Railway Station of Delhi. They stayed in Bodh Vihar, Paharganj, Delhi on the night between 26/27.6.2011, however, there was some altercation between Anand Raut and his friend Mahesh Prajapati on the point of a girl, but accused pacified them on that night. Next day/morning of 27.6.2011, the accused left for his native place but at that time Anand Raut was in the company of Mahesh Prajapati and one girl, they disburse near Maruya Hotel. He came at his house in Aligarh and then proceeded to Bullandsher at the house of groom (of his sister) and then came back at S.C. No.25/14 State Vs. Rajesh Page 3 of 42 house in the same evening. He was at his residence till he was called by the police in PS Usmanpur, where he reported and he was not arrested in Aligarh, UP. Since his mobile phone was not working, Anand Raut had given his mobile handset to accused.
With this precise introduction of the plea of parties, now facts are taken in detail.
1.3 (Prosecution case) - The State machinery came into action, when on 28.11.2006 a security guard (PW1 Dig Vijay Singh) at DDA Forest Area, 144 Hectare, Somaliya Charagah was informed by a passerby that a dead body was lying under Khader area in front of Metro Depot. Dig Vijay Singh informed the Police Control Room from his mobile phone No.9210564575 and it was recorded in Police Control Room (its text is Ex.PW16/A), which was conveyed to local police of PS New Usmanpur, Delhi, which had recorded DD No.6A dated 28.11.2006 at 9.45am (Ex.PW11/A). This information was assigned to SI Sunil/PW25, he alongwith other police officer/PW27 reached the spot and inspected it, where not only dead body of male was found lying but also many articles viz. cover of ATM card, driving licence of Anand Raut, railway ticket from Indore junction to New Delhi dated 25.6.2011 2nd class, two passport size photographs, a black colour school empty bag and a blood stained handkerchief. He informed the senior officers, the crime team was also called. The ATM card was containing driving licence in the name of Anand Raut, which was carrying photographs and the same was compared with the body lying there, on the basis of photographs the dead body was identified of Anand Raut. On checking S.C. No.25/14 State Vs. Rajesh Page 4 of 42 of the dead body, it was found that his neck was cut with a sharp edged weapon. The DD entry No.6A was endorsed with rukka (Ex.PW25/B) for registration of FIR. The SHO/Inspector Ratan Pal/PW28 also came at the spot and carried the investigation inclusive of seizure of the articles (vide memo now Ex PW25/C) lying at the spot and dead body was sent for postmortem. Before the post mortem was carried, a diary was also recovered from the pocket of pant of deceased, which was also seized and the diary was scrutinized, it was containing telephone/contact numbers. The IO was able to contact relatives of deceased and they were called. They reached Delhi. Kishan Yashwant Raut (PW4, father of the said Anand Raut) and Shanker ( PW3, uncle of the said Anand Raut) identified the dead body of Anand Raut. On reveal of certain facts that Anand Raut came Delhi for writing his examination scheduled on 26.06.2011 and PW5 Mahesh Prajapati, of Madhya Pradesh (who was also knowing the said Anand Raut) had also been in Delhi for writing his examination for the same B.E.L. examination and not only Anand Raut and PW5 Mahesh Prajapati met together but also name of accused Rajesh has surfaced that Anand Raut was with Rajesh, who met Anand Raur in Ujjain in the journey in train to Delhi. The said Rajesh, Anand Raut and PW5 Mahesh Prajapti lived together in the Dharamshala in the midnight falling between 26/27.06.2011. It was also revealed about the telephone/contact Nos. 8982613365 and 8982150470 of Anand Raut . The said Anand Raut had used the phone while talking to PW5 Mahesh Prajapati since he was having examination center in Rohini and Anand Raut had examination center in Janakpur visavis when PW5 and Anand Raut were having excursion in Chandni Chowk area, Anand S.C. No.25/14 State Vs. Rajesh Page 5 of 42 Raut had talked to Rajesh and PW5 had also talk with Rajesh to guide him/PW5 to reach Chandni Chowk area. Then said mobile numbers of Anand Raut were put to surveillance and it was discovered that the accused was using the mobile handset in respect of telephone connection 9058950389 and 9548553113 (belonging to his parents) and further investigation was carried, the accused was arrested and on the eve of his arrest various articles were recovered (seized vide memo Ex PW 26/D and Ex PW26/E) inclusive of mobile handset of deceased (which was seized vide memo Ex PW25/C). The deceased was seen in the company of accused Rajesh not only by PW5 but also another witness PW8/Mahant Panyadeep of Dr. Ambedkar Bodh Vihar, Motia Khan, Delhi, since the said three had stayed in the said Vihar in the midnight of 26/27.6.2011 and they were also seen in the morning of 27.6.2011. The accused also got recovered a knife (as per memo Ex PW 26/G) consequent to his disclosure statement in the course of investigation, the said knife and other articles sent for forensic opinion. The articles (of deceased) recovered were also put to judicial TIP and PW4 had identified them. Ultimately, it result into chargesheet u/s 302/392/397 IPC against accused Rajesh.
2. (Charge) The accused Rajesh s/o Satya Prakash has been charged u/s 302 IPC that in the intervening night 27/28.06.2011 in front of Shastri Park Metro Depot in the north direction of ISBT Road, in the Khader area he committed murder of Anand Raut by using knife. He has also been charged u/s 392 IPC that on the aforementioned date, time of between sunset and sunrise and place, he committed robbery of ATM cards, clothes, purse and other documents of Anand Raut which S.C. No.25/14 State Vs. Rajesh Page 6 of 42 were in his possession. He is also charged u/s 397 IPC that while committing the robbery by him, he used a deadly weapon of knife. However, the accused pleaded not guilty and claimed trial. The case was put to prosecution evidence.
3.1 (Prosecution Evidence) In order to prove and establish the charges against accused persons, the prosecution got examined 29 witnesses, their names with brief description of purpose of examination is narrated below:
(i) PW1 Digvijay Singh - to establish that he was security guard and on 28.06.2011 he was on night duty from 1.00 am to 9.00 am at DDA forest area, 144 Hectare Somaliya Charagah as security guard, he was informed by a passerby about lying of a dead body under Khadar area in front of Metro Depot, he verified it and then informed the police control room by dialing no. 100 from his mobile No.9210564575.
(ii) PW16 ASI Som Parkash, No.5126/PCR - to prove the PCR call record that on 28.06.2011 a call was received and it was recorded [ its computer generated copy is Ex.PW16/A].
(iii) PW11 HC Satender Kumar, No.1552/NE to establish that on 28.06.2011 he was posted as Duty Officer in PS New Usmanpur, Delhi and at about 9.45 am, a message was received from Police Control Room about lying of a dead body in DDA jungle, opposite Metro Depot, Shastri Park, this information was reduced into writing as DD No.6A dated 28.06.2011 at 9.45 am (Ex.PW11/A), which was assigned to SI Sunil/PW25. On the same very day, at about 12.05 pm, rukka was brought by Ct. Parvinder sent by said SI Sunil and on the basis of that rukka a formal FIR No.228/2011, u/s 302 IPC (Ex.PW11/B) was registered; PW11 had also endorsed his entry on the rukka. Further to prove the said rukka and copy of FIR was given to Ct. Parvinder to hand over the same to Inspector Ratan Pal/PW28.
(iv) PW18 HC Ram Naresh, No.94/PCR - to prove that he was also posted as Head Constable at police station New Usmanpur and on 28.06.2011 the duty officer had handed over him copies of FIR to hand S.C. No.25/14 State Vs. Rajesh Page 7 of 42 over the same to Joint Commissioner of Police, DCP, ACP and Illaqa Magistrate, which he took to them at their residences and offices. He came back to police station. IO had recorded his statement.
(v) PW25 Sh. Sunil Sharma to prove that he was posted as Sub Inspector in police station New Usmanpur on 28.06.2011, he was on emergency duty and he was assigned DD No.6A (Ex.PW25/A) that a dead body is lying in Khadar area in front of Metro Depot and immediately he alongwith Ct. Naresh Kundoo/PW27(=also PW19) reached at the said place and he found a dead body lying there and carried appropriate action at the spot, besides informing his senior officers. The said DD parcha was endorsed as rukka (Ex.PW25/B) for registration of FIR, he deputed the head constable for registration of FIR. In addition, the articles [blood stained earth, sandles, earth control, cover of ATM card, driving lincence, railway ticket, two passport size photographs, a black colour empty school bag and a blood stained handkerchief] were seized by the IO from the spot, he is witness to the seizure memo Ex.PW25/C as well as to the personal search of pocket diary of deceased, which was separately seized by memo (Ex.PW19/A) before carrying of postmortem of dead body of deceased Anand Raut. Further, to establish to get identified and proved articles (Ex.P1 colly. to Ex.P3) seized from the spot.
(vi) PW27 Ct. Ram Naresh No.131 (earlier he appeared as PW19 but partly examined and when later appeared he was examined as PW27)
- to establish that on 28.06.2011, when he was posted in police station New Usmanpur, he was on emergency duty and on assignment of DD No.6A (Ex.PW11/A) to SI Sunil Kumar, he accompanied him to the spot, where IO had carried the investigation in his presence, inclusive of snap of photographs by the officials of Crime Team. Further, he was deputed by the IO to guard dead body at mortuary, GTB hospital, where he also remained present when recovery of diary was effected from the pocket of pant of deceased, the dead body was deposited in the mortuary and he remained there till postmortem of deceased. SI Satpal was handed over several parcels by the doctor, the same were handed over to Inspector Ratan Pal. On 29.06.2011, after postmortem, the dead body was handed over to father and maternal uncle of deceased in his presence, he is witnessed to such memo of dead body (Ex.PW19/A) S.C. No.25/14 State Vs. Rajesh Page 8 of 42 and of memo of exhibits (Ex.PW15/A) which were handed over by the doctors after postmortem. Further, to prove the recovery of those articles effected in his presence.
(vii) PW6 SI E.S. Yadav, I/C Mobile Crime Team - for proving that 28.06.2011 he was Sub Inspector and Incharge, Mobile Crime Team, North East District and on receipt of call he reached at the spot, opposite Metro Depot, Shastri Park, DDA Land, Yamuna Khadar where one male dead body was lying, the photographs of scene was snapped from different angles on his instructions as well as on the instruction of IO, for which visitation report (Ex.PW6/A) under his signatures was prepared.
(viii) PW7 Ct. Shyam Lal, No.890/NE - to establish that on 28.06.2011 he was photographer in the office of Mobile Crime Teat (NE District) and he accompanied SI E.S. Yadav/PW6 at the spot where as per instructions, he took 21 photographs (Ex.PW7/P1 to Ex.PW7/P21, its negatives are Ex.PW7/A1 to Ex.PW7/A21) of dead body, of spot and of articles lying there from different angles.
(ix) PW9 Ct. Neeraj No.1418/NE - for establishing that after arrest of accused Rajesh, PW9 alongwith SI E.S Yadav, Incharge of Mobile Crime Team and ASI Rajender Singh had received a message from Inspector Ratan Pal and accordingly he reached the spot, where Inspector Ratan Pal with staff was present besides accused Rajesh. On the pointing out of place where dead body of deceased was thrown as well as on showing the place where knife was lying, 7 photographs of such places were snapped on the instructions of IO, however, two negatives could not be enlarged/developed as the same were washed out but for other negatives (Ex.PW9/6A to Ex.PW9/A12), the photographs (Ex.PW9/A1 to Ex.PW9/A5) were prepared.
(x) PW20 Dr. Neha Gupta, Sr. Demonstrator in Department Forensic Medicine, GTB Hospital - to prove that on 29.06.2011, she conducted the postmortem upon the dead body of Anand Raut and gave her detailed report (Ex.PW20/A) inclusive of opinion of cause of death 'hemorrhage shock as a result of ante mortem injury to neck and associated blood vessels produced by sharp edge weapon' and the time since death was about one and half day. The viscera of deceased, S.C. No.25/14 State Vs. Rajesh Page 9 of 42 blood gauze of deceased and clothes worn by the deceased were sealed in parcels, which were handed over to the police.
(xi) PW15 SI Satya Pal - to prove that on 29.06.2011, when he was posted as SI PS New Usmanpur, he alongwith IO reached the GTB hospital and after postmortem and handing over dead body to the relatives of deceased, the doctor had handed over him a viscera box sealed with the seal of 'NG' and one more sealed parcel alongwith the envelop containing blood sample, which he had handed over to the IO, which was seized by him vide memo (Ex.PW15/A) to which he is a witness.
(xii) PW3 Shanker - to prove that he is uncle of Anand Raut and he had received telephonic call on 28.06.2011 from Investigating Officer about recovery of dead body in area of New Usmanpur, then PW3 informed his brotherinlaw/PW4 Kishan; they came to mortuary, GTB hospital for identification of dead body, it was discovered of his nephew Anand Raut and he identified it by statement (Ex.PW3/A) and dead body was handed over to him and to his brotherinlaw/PW4 by handing over memo (Ex.PW3/B). Further, to establish that he came to know from Anand Raut that his friend Mahesh Prajapati had also filed application for B.E.L., his examination center was also in Delhi and after receipt of information, he/PW3 talked to Mahesh Prajapati, who disclosed that Mahesh Prajapati had also met Anand Raut in Delhi vis avis Anand Raut and Rajesh met in train going to Delhi, they had stayed at night in Delhi, however, Mahesh Prajapati returned back to Indore due to his illness but Anand Raut and Rajesh remained in Delhi.
(xiii) PW4 Kishan Yashwant Raut - to prove that he is father of deceased Anand Raut. Further, he received a call from his brotherin law/PW3 then he alongwith PW3 came to Delhi at mortuary of GTB hospital where he identified dead body of his son and also gave statement (Ex.PW4/A) and after postmortem he was handed over the dead body by memo (Ex.PW3/B). Further, for establishing that Anand Raut came to Delhi for writing examination scheduled for 26.06.2011 visavis there was talk on telephone with Anand Raut, who disclosed about Rajesh, who met Anand Raut in the train from Ujjain, when he was going to Delhi, besides the information/talk he had with Mahesh S.C. No.25/14 State Vs. Rajesh Page 10 of 42 Prajapati. Further, that on 26.09.2011 he had seen accused Rajesh in Karkardooma Court complex, where Mahesh Prajapati identified the accused Rajesh, with whom Anand Raut had stayed in Delhi. Lastly, to prove the belongings (Ex.P1 to Ex.P18) of deceased, which were recovered and the same were also identified in judicial TIP.
(xiv) PW5 Sh. Mahesh Prajapati - to prove that on 26.6.2011 he came to Delhi for appearing in BEL examination in the year 2011 and the examination was scheduled on 26.06.2011 and his center of examination was in Rohini, Delhi. He was knowing Anand Raut (since deceased) as they were knowing each other visavis to prove that he had telephonic talk with Anand Raut after examination and also with accused Rajesh, besides he met accused Rajesh in Delhi, consequent to introduction to accused Rajesh by Anand Raut. PW5 had also telephonic talk with accused Rajesh (on introduction by Anand Raut on phone itself) to guide PW5 to reach Chandni Chowk by Metro Rail from Rohini. Moreover, Anand Raut and PW5 had excursion together at city places like Red Fort etc. They (Anand Raut, PW5 Mahesh Prajapati and accused Rajesh) had had meal together and stayed together at Bodh Vihar, Motia Khan, Paharganj in the night falling between 26/27.6.2011. Lastly, on 27.11.2011 all the three boarded the bus together but PW5 had to go to his home in MP, he alighted on the next stop as he had bought ticket for Rs.5/ but accused Rajesh and Anand Raut had proceeded for Noida, they had also bought daily traveling pass. The said PW5 had also seen accused Rajesh on 26.09.2011 in Karkardooma Court Complex, Delhi (during cross examination the witness PW5 was asked about his travel record, admission ticket and pass of local DTC bus, which he produced as MarkDA, Mark DB, Mark DC). During crossexamination of PW5 is stand clarified that Anand Raut had telephone connection/SIM of DOCOMO.
(xv) PW8 Mahant Panyadeep, Priest, Dr. Ambedkar Budh Vihar, Motiya Khan, Delhi for establishing that he is priest in Dr. Ambedkar Budh Vihar, Delhi and on 26.06.2011 at about 9.00 pm accused Rajesh alongwith two boys came to the Budh Vihar, they stayed there and on the following day on 27.6.2011 at about 8.00/9.00 am the said accused Rajesh and other two boys left the place. Moreover, prior to leaving the said place, accused Rajesh was standing outside the bathroom, when said two boys were having bath.
S.C. No.25/14 State Vs. Rajesh Page 11 of 42 (xvi) PW28 Inspector Ratan Pal No.D3186 - to prove that he was Investigating Officer and he carried not only inspection of the spot but also investigation throughout, inclusive of seizure of articles from the spot, calling and getting the spot inspected and photographed from Crime Team, scaled site plan besides to record the statement of witnesses, collect and verify the mobile phone numbers with appropriate record. He was also assisted by other police officers remained in his association either in Delhi or outside Delhi. The dead body of deceased was got postmortem and also obtained opinion with regard to cause of death. It was surfaced that during surveillance of mobile phone numbers/IEMI numbers that accused is using the mobile hand set and he was tracked. Then accused was also arrested, appropriate memos were prepared either with regard to disclosure statement or discovery of facts or articles inclusive of knife. He carried investigation till it result into chargesheet against the accused.
(xvii) PW26 SI Vikrant Sharma No.D4168 - to prove that he was Sub Inspector in police station New Usmanpur and he joined the investigation on different dates with IO/PW28 Inspector Ratan Pal on 29.06.2011 he went to Hardwaganj, District Aligarh (U.P.) in search of user of mobile phone and on 30.06.2011 the police had succeeded to contact the user of mobile phone No.9548553133, which was being used by accused Rajesh. He was arrested, he gave his disclosure statement and memos (Ex.PW26/A and Ex.PW26/B) were prepared to which he is a witness. The mobile phone of grey black colour on which Gild was written, containing dual sim one was of Reliance company and other of Uninor the same was seized by preparing pullanda and he is a witness to that memo (Ex.PW26/C). The articles recovered were also seized by memo (Ex.PW26/D), which was also witnessed by him. The other articles and belongings found in the bag being carried by the accused were also seized by memo (Ex.PW26/E), to he is also a witness. Further to prove that he also associated with further investigation of the case when accused got recovered a knife, for which not only khaka of knife (Ex.PW26/F) was prepared but also a pointing memo (Ex.PW26/G) after leading to the place, where it was kept. The pair of shoes and a Tshirt of accused was also seized by separate memo (Ex.PW26/H) to which he is also a witness.
S.C. No.25/14 State Vs. Rajesh Page 12 of 42(xviii) PW13 - to prove that he was draftsman and on 25.7.2011 he alongwith Inspect Ratan Pal went to spot, it was inspected by him and on the instructions of IO, he carried measurement and rough notes, and on the basis thereof, he prepared scaled site plan (Ex PW13/A) under his signature.
- (xix) PW10 Rajeev Sharda, Nodal Officer, Reliance Communications Ltd. to prove the record of application form of mobile connection No.9548553133 issued in the name of Sh. Satya Prakash, which was issued against application form (Ex.PW10/A), Ration Card (Ex.PW10/B). Further to prove call detail record (Ex.PW10/C) for period 20.06.2011 to 30.06.2011 under the seal of that company for which certificate (Ex.PW10/D) was issued. [Satya Prakash is father of accused Rajesh] (xx) PW29 Sh. Ved Prakash, Formerly Alternate Nodal Officer of Reliance Communications at Reliance center, Maharaja Ranjeet Singh Marg, New Delhi - to prove that he was Nodal Officer in Reliance Communications and to prove that the call details of phone No.9548553133 for period 20.06.2011 to 30.06.2011 were furnished to the IO alongwith application form for mobile phone connection with identity proof of applicant that the same was issued to Sh. Satya Prakash.
(xxi) PW12 Sanjay Singh, Nodal Officer, Uninor - for establishing the record of application form of mobile connection No.9058950389 issued in the name of Smt. Amrawati W/o Sh. Satya Prakash, which was issued against application form (Ex.PW12/A), voter ICard (Ex.PW12/B). Further to prove call detail record (Ex.PW12/C) for period 20.06.2011 to 30.06.2011 under the seal of that company for which certificate (Ex.PW12/D) was issued.
(xxii) PW14 M.N. Vijayan, Nodal Officer, TATA Tele Services Ltd. for proving that mobile phone Nos. 8982613665 was issued in the name of the name of Jamna Bai against her application form (Ex.PW14/A), Voter ICard (Ex.PW14/B and Ex.PW14/C). Further, to prove call detail record (Ex.PW14/G) for period 20.06.2011 to 30.06.2011 under the seal of that company. Further, for establishing that mobile phone No. 8982150470 was issued in the name of Kishan Raut against his application form S.C. No.25/14 State Vs. Rajesh Page 13 of 42 (Ex.PW14/D), Voter ICard (Ex.PW14/E and Ex.PW14/F). Further, to prove call detail record (Ex.PW14/H) for period 20.06.2011 to 30.06.2011 under the seal of that company. Lastly, for establishing the location of mobile phones and call detail of IMEI No.352820038266150 for the period 20.06.2011 to 30.06.2011 (Ex.PW14/I and Ex.PW14/J). [Jamna and Kishan are parents of deceased Anand Raut].
(xxiii) PW17 N.K. Chaudhary, Manager, Canara Bank - to prove the record of account statement of Anand Raut of account No.2622108010116 (Ex.PW17/A) of period 01.01.2008 to 15.07.2013 and for showing withdrawal during relevant period of (June 2011).
(xxiv) PW24 HC Satish Kumr No.447PCR - to prove that he was malkhana muharir posted PS New Usmanpur and he maintained the record of articles in Register No.19 in respect of the transactions carried on 28.06.2011 when 6 parcels were deposited by the IO, on 29.06.2011, 3 parcels were deposited and on 30.06.2011, 5 sealed parcels were deposited; which were endorsed ( it extract are Ex.PW24/A to Ex.PW24/C) in the Register No.19. Further, to establish that the said articles were sent to FSL, Rohini on 27.06.2011 and on the eve of receipt of FSL result on 25.11.2011 besides the sealed parcels, the appropriate entries were also made in the said register. Similarly, appropriate entries were also made in Register No.19 when viscera was sent to FSL, Rohini on 19.07.2011 visavis on receipt of report on 18.01.2013, the other transaction carried have also been mentioned in the said register (Ex.PW24/D to Ex.PW24/G).
(xxv) PW23 Ct. Sheeshpal - to establish that on 27.07.2011, he was posted as constable in police station New Usmanpur, he was called by MHC(M) and handed over 10 sealed parcels out of them 8 sealed parcels were sealed with the seal of 'RP' and remaining two parcels were under the seal 'NG', which he took to FSL Rohini, with Road Certificate and deposited the same there and on return to police station, furnish the copy of Road Certificate to MHC(M).
(xxvi) PW22 Ct. Manoj Kumar to establish that on 29.07.2011, he was posted as a constable in PS New Usmanpur and on the direction of IO/SHO, he took from MHC(M) a sealed parcel with the seal of 'NG' of hospital alongwith sample seal and relevant documents and went to S.C. No.25/14 State Vs. Rajesh Page 14 of 42 FSL, Rohini with Road Certificate and deposited the same there and on return to police station, furnish the copy of Road Certificate to MHC(M).
(xxvii) PW2 Ms. Manisha Upadhyay, Senior Scientific Officer (Biology) FSL, Delhi - to prove that sealed envelop with the seal of 'MU' FSL was opened and FSL result was taken out, the exhibits were examined with serological techniques and report (Ex.PW2/B) was furnished, whereby Bgrouphuman was detected on two exhibits baniyan/vest and underwear (of deceased) but no reaction in respect of other exhibits.
(xxviii) PW21 Ms. Mayuri Singh, Metropolitan Magistrate, Shahdara to prove that judicial TIP of articles on the application of Investigating Officer was carried as it was assigned to her being Link Metropolitan Magistrate and appropriate proceedings (Ex.PW4/B) was drawn under certificate (Ex.PW21/C).
3.2 The prosecution witnesses have been cross examined on behalf of accused to discard the case of prosecution vis a vis to put defence of accused that he has no role at all in the said crime (by putting his case to prosecution witnesses, as stated in paragraph 1.2.3 above). He produced his parents in the defence witness box for establishing he was at his residence in Aligarh, UP from the evening of 26.6.2011, as he reached there by Gomati Express at 4:00 pm and then remained there.
4.1 (Statement of accused and defence evidence) - After conclusion of evidence, the accused was examined u/s 313 Cr.P.C., without oath, there are different components of his reply, like he had denied some of the allegations either they are wrong or false and for some other allegations he responded as if he does not know about S.C. No.25/14 State Vs. Rajesh Page 15 of 42 them and in reply to some questions (viz. Question Nos. 32, 39 and 50) he accepted them as correct. He also explained/narrated (while denying the other allegations) that articles have been planted on him and nothing was recovered from him or at his instance. Further, Anand Raut, Mahesh Prajapati and he was staying in Dharamshala, at Motia Khan, Pahar Ganj in the intervening night of 26/27.06.2011, where a quarrel took place between Mahesh Prajapati and Anand Raut on the issue of a girl, however, on his intervention the quarrel was then pacified. Next day on 27.06.2011, accused left the Dharamshala and a girl met them (namely accused Rajesh, Anand Raut and Mahesh Prajapati) near Maurya Hotel, Pahar Ganj. Then Mahesh Prajapati having bag (of Anand Raut) with that girl left near Maurya Hotel and accused also them see off and also Anand Raut near Maurya Hotel and then he/accused went to Aligarh on 27.06.2011 at about 12.00 noon. The accused also explained that he had been to Delhi to distribute marriage cards of his sister, which was scheduled for 09.07.2011. He had opted for defence evidence.
4.2 In order to establish his plea of defence, accused got examined his parents namely DW1 Sh. Satya Prakash and DW2 Smt. Amarwati to prove that their son/accused Rajesh came Delhi on 24.06.2011 to distribute invitation cards of marriage of their daughter, which was fixed 09.07.2011 and Rajesh came back Aligarh by Gomti Express at 4 pm of 26.6.2011 from Delhi. On 27.06.2011 they (DWs) alongwith accused went to the house of groom Ram Avtar in Bullandshaher, (U.P.) to perform engagement ceremony and they came back on the same very day at 7.00 pm. On 28.06.2011, accused had S.C. No.25/14 State Vs. Rajesh Page 16 of 42 also helped them to white wash the home and he remained in the house till after noon of 29.06.2011, when he made departure for distributing more cards. Both the defence witnesses have been cross examined on behalf of State, even they were recalled for cross examination by State followed by cross examination on behalf of accused. Then, defence evidence was closed.
5. (Final submissions) - Sh. Shahabuddin, APP for the State and Sh. Ranjeet Singh, Advocate for accused made their final submissions; they have juxtaposition pleas. According to State, it has proved the charges, the case is based on circumstantial evidence and there is complete chain of corroboration, which proves the charges against the accused. Whereas on the other side, ld. Defence counsel has reservation that either from the point of circumstantial evidence or the last scene theory or other technical aspects, the charges could not have been proved by the prosecution, there exists various doubts and lacuna, benefit goes in favour of accused, on the principle that when two views are possible, then the view in favour of accused is to be considered and exercised.
With this introduction of bone of contention of each party, now other aspects are taken in detail.
6.1 (Submissions of State) - The State opened the arguments, while referring its own case as well as the plea of defence, either put during the cross examination of witnesses or plea taken by the accused in his statement u/s 313 Cr.P.C. It is the duty of prosecution to prove the case but when the certain facts are exclusively in the personal knowledge of accused, that aspect is liable to be proved by the accused, as onus to S.C. No.25/14 State Vs. Rajesh Page 17 of 42 prove them lies on accused as per section 106 of the Evidence Act. The prosecution had discharged its duty by proving the case and some of the facts, which were incriminating in nature, were put to accused in his statement u/s 313 Cr.P.C, he has admitted those material facts in respect of possession of mobile phone handset, which was of the Anand Raut (since deceased). On the eve of discovery of mobile phone numbers of deceased/IMEI numbers were put to surveillance and the accused was found using the said mobile handset, which result into not only apprehending of accused but also recovery of said mobile handset as well as other articles belonging to Anand Raut, which were identified by his father/PW4 in judicial TIP. The accused was with the Anand Raut as well as with PW5 Mahesh Prajapati, even they had lived together in Pahar Ganj visavis the accused and Anand Raut were last seen together by PW5 Mahesh Prajapati, the testimony of PW5 is clear in this regard. PW5 had also produced and proved his relevant record of appearing in examination on 26.6.2011 by way of production of his admission ticket, his traveling ticket record (from Delhi to Nimach) of 27.8.2011 as well as tickets of DTC bus in respect of his traveling from one stand to another in Delhi, on the day he made departure for his native place. The record of application forms of mobile phone connections in the name of parents of the accused as well as in the name of parents of the deceased have also been proved, the testimony of witnesses stand established in a natural course of event. The call detail record (CDR) also reflects that the mobile handset was used by accused on 27.06.2011 at 10:06:02 pm, while in Delhi by inserting SIM cards of his parents. The accused got recovered the knife used in S.C. No.25/14 State Vs. Rajesh Page 18 of 42 commission of crime and all these circumstances prove the case against accused, he not only killed Anand Raut but also robbed of his belongings, which were also recovered from him at the time of his arrest.
6.2 There are other circumstances, which also shows the conduct of accused, like he took the plea in his defence that he came Delhi for distribution of marriage card of his sister, which was scheduled for 09.07.2011 and on 27.06.2011 he left Delhi to his native place Aligarh and from that place he had gone to Bullandshahar, (U.P.) at the house of groom, whereas there is neither any documentary record or photograph or so on to show or prove that there was actually such programme or engagement ceremony or marriage of his real sister. The accused claims that the mobile handset was given to him by deceased himself, whereas there is no such proof as to when actually the phone was given to him and on the other side State has established that the mobile handset was robbed by the accused.
The conduct of accused can also deciphered as on the one side there is a plea that the accused and Anand Raut became friends but on the other side, as appears, he has not bothered to confirm whether Anand Raut had reached his house if there was see off to him. Moreover, there are also contradictory stand and defences taken during the phase of trial as throughout in the trial it was never put to PW5 Mahesh Prajapati any suggestion, which was all of a sudden put to the Investigating Officer by indicating as if he tried to save the Mahesh Prajapati and IO implicated the accused falsely. Similarly, the accused S.C. No.25/14 State Vs. Rajesh Page 19 of 42 in his statement u/s 313 Cr.P.C. projected that Mahesh Prajapati took the bag of Anand Raut vis a vis accused never met Mahesh Prajapati. Under these circumstances, the defence of accused is on a very weak footing and it does not pierce the case of prosecution. The accused is liable to be held guilty for the charges framed against him.
7.1 (Submissions on behalf of accused) - Ld. Defence counsel requests that there are many flaw in the case of prosecution which do not prove the charges but establish that the accused is innocent and he has been implicated falsely. The time of death of deceased is not specific in the entire evidence on behalf of State. The case is put on the basis of last scene theory and circumstantial evidence, whereas the prosecution failed to establish whether concept of last scene theory can be invoked, as it can be invoked when there is reasonable time gap between the time of occurrence as well as the victim was scene in the company of accused and in the present situation, the prosecution suggests as if crime happened in the intervening night of 27/28.6.2011 but the accused had disbursed in the morning at about 10.00 am, as per statement of PW5, consequently, there is much more gap than reasonable time of 5 to 6 hours. Similarly, the circumstances shown are not in its natural sequence but they are shown to be against the natural human conduct, like the accused was arrested on 30.06.2011 but the recovery of articles shown from him are suggestive of belongings of deceased Anand Raut, is it believable or to be called natural that a person if he had committed an offence, would carry with him the belongings of victim so that it may be taken as an incriminating evidence against him or he was wearing shoes or clothes worn at that S.C. No.25/14 State Vs. Rajesh Page 20 of 42 time and so on. Otherwise, FSL result is not in favour of prosecution for want of positive report. Similarly, there is no proof of any fact that accused met Anand Raut in train at Ujjain or accused accompanied Annand Raut at Nizamuddin or Parliament Street ATM, for withdrawal of amount.
There is no iota of evidence/proof of motive of crime, whereas in circumstantial evidence it is one of the essential requirements to establish the motive. The prosecution tried to impute motive of robbery as if the accused had seen the Anand Raut carrying ATM Card etc. and there would be a lot of money but it should not be forgotten that for use of ATM card one requires PIN number and without it the ATM card can not be operated In fact, the articles have been planted on the accused.
7.2 Similarly, the accused had not given any disclosure statement but it is self created document of the police. Neither the accused led the police to any place nor the knife was got recovered by him visavis the said place was a forest area and there was a lot of darkness being admitted by the Investigating Officer, how the knife could be recovered. This reflects unusual and unnatural events.
The telephone handset theory is also full of doubt in the case of prosecution itself and from the record of prosecution itself prove that the mobile phone handset shown recovered from the accused is not the mobile handset of deceased. As per memo (Ex. PW 26/C), the IMEI number of mobile phone is 352820038266149 and 352820038266156 but in the call detail records the IMEI number shown are 352820038266140 and 352820038266150, thus both numbers are S.C. No.25/14 State Vs. Rajesh Page 21 of 42 not compatible and they are different, it means there are different handsets. Moreover, in the seizure memo the SIM card numbers shown are 89918181012043718140 of Uninor and other SIM card serial number is 8991221760000991525 of Reliance, respectively belonging to Smt. Amarwati and Sh. Satya Parkash parents of accused. But there is inconsistency in the plea of prosecution and this inconsistency is substantial in nature, the record is fabricated, which demolishes the case of State. The witness PW12 Sanjay Singh, Nodal Officer of Uninor produced certificate (Ex. PW 12/D and Ex. PW12/E) in respect of connection of telephone number 9058950389 in the name of Smt. Amarwati (mother of accused) but in letter (Ex. PW 12/E) the SIM card no. 8991818101204318140 is different from the SIM card no. 89918181012043718140 visavis the recovery shown in the seizure memo Ex. PW 26/C. It proves that there was some other mobile handset and the recovery of mobile handset is planted on the accused. The entire case of prosecution develops on the mobile handset/IMEI number but is surrounded by doubts.
On evaluation of evidence, certain facts are indicating that the investigating officer has shielded the actual culprit and the accused has been implicated falsely. There is no explanation by PW5 Mahesh Prajapati and his conduct is unusual, as to why he was in Delhi till evening, if he had made departure at 10:00 am in the morning. PW5 Mahesh Prajapati admits that he was in Delhi and went to Madhya Pradesh by boarding a bus from Tis Hazari at 6pm, otherwise prosecution case is that he disbursed at 10:00 am in the morning and he had to board the train from Nizamuddin Railway station for Madhya S.C. No.25/14 State Vs. Rajesh Page 22 of 42 Pardesh but instead he came back at Tis Hazari. The needle of suspicious and circumstances points out toward PW5 Mahesh Prajapati to be the culprit of the crime. That is why, the investigation officer was suggested of these aspects. The accused deserves acquittal for want of proof of circumstances from the inception of allegations that Anand Raut met accused at Ujjain during the journey or with regard to other subsequent allegations since, chain of event is not complete and there are doubtful circumstances, the benefit goes in favour of accused.
7.3 Ld defence counsel fortifies the aforementioned submissions from the following cases: (I) S.K Yusuf versus State of West Bengal, 2011 AIR (SC) 2283:
2011 AIR (SCW) 3748. (Para 26) held. Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypotheses except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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. (Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police, (2008) 15 SCC 430; and Wakkar & Anr. V. State of Uttar Pradesh, (2011) 3 SCC 306).
(ii) Ramreddy Rajeshkhanna Reddy & Anr. Versus State of Andhra Pradesh, 2006 AIR(SC) 1656 (Para 27) It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution S.C. No.25/14 State Vs. Rajesh Page 23 of 42 must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also wellsettled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.[See Anil Kumar Singh v. State of Bihar(2003) 9 SCC 67 and Reddy Sampath Kumar v.State of A.P. (2005) 7 SCC 603].
(iii) Bodh Raj alias Bodha and others versus State of Jammu and Kashmir, 2002 AIR(SC) 3164 (Para 32). The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that deceased, A1 and A 2 were seen together by witnesses, i.e. Pws14, 15 and 18, in addition to the evidence of PWs1 and 2.
(iv)Sharad Birdhichan Sarda v. State of Maharashtra; AIR 1984 Supreme Court 1622. (Para 150) It is well settled that the prosecution must stand or fall on its own legs and it is cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
(Para 152) The following condition must be fulfilled before a case against an accused can be said to be fully established S.C. No.25/14 State Vs. Rajesh Page 24 of 42 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It must be noted here that this Court indicated that the circumstances concerned 'must or should' and not ' may be' established. There is no only a grammatical but a legal distinction between 'may be proved' and must be or should be proved' as was held by this Court in Shivali Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made:
" certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they sould not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Para 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
(v) State through CBI Vs Mahender Singh (2011) 3 Supreme Court Cases 109. (Para 29) in assessing the evidence, the High Court was aware of the legal principles that absence of motive may not necessarily be fatal to the prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the court, the motive loses its significance. But in case based on circumstantial evidence, motive for committing the crime assumes great importance.
S.C. No.25/14 State Vs. Rajesh Page 25 of 427.4 (Counter submission by State on point of IEMI number) Ld. Addl Public Prosecutor for State requests that there is a technical aspect, the same is being projected in defence as if there are two different mobile handsets. The IMEI number of mobile handset is mentioned in seizure memo (Ex. PW 26/C), the mobile handset was also produced in the court, however, the last digit as mentioned in the mobile handset is not reproduced in the call detail, the IMEI nos. 52820038266149 and 352820038266156 will appear as 52820038266140 and 352820038266150 in call detail record, which is being carried automatically in the software. This is in fact format of IMEI having component of type allocation of code of a digit (TAC of 8 digit), serial number being uniquely each equipment (SNR of 6 digit) with TAC and the last digit is spare/check (15th digit) which is not transmitted when IMEI is checked, the spare digit is intended to avoid manual transmission errors and it is set to zero, when transmitted by the mobile station. Thus, when Mobile Station finishes access process, the system stores IMEI as TAC+SNR+0, which will be written into Call Data Record i.e. CDR. Consequently, the mobile handset seized from the accused (vide memo Ex. PW26/C) is the mobile handset of deceased, the telephone number of the deceased were put to surveillance and then location of handset was detected on the basis of IMEI numbers. There is no doubt or uneven in chain corroboration.
There is also no single suggestion to PW5 Mahesh Prajapti to confront him with the question which was put to investigating officer, in fact the accused has been taking different defences at different stage S.C. No.25/14 State Vs. Rajesh Page 26 of 42 of the case, however, the accused could not prove any of his defences nor he could disprove the case of the prosecution.
8.1 (Findings) The contentions of both the sides are considered, analyzed and assessed, keeping in view the material on record (either in the form of oral evidence, documentary evidence, material things and procedure followed in CDR) as well as the provisions of law, besides the case law presented. It is apparent that this is not the case of direct evidence but of circumstantial evidence and to access the last scene, the rule of Panchseel is to invoked, as held in precedent Shard Birdhcan Sara case (supra). Since, there are some undisputed facts visavis rival plea, it is appropriate to first narrate them and decide them inclusive technical aspects of IEMI numbers or their record, in order to appreciate the evidence and submissions of both the sides.
8.2 There are many undisputed or admitted facts, the same are enumerated as follows:
(i) The mobile phone number 9058950389 is in the name of Smt. Amarwati, she is mother of the accused. The application form (Ex. PW 12/A) is in respect of her application for this telephone connection. The application form also reflects SIM card no. 8991818101204371814, the call detail (Ex. PW 12/C) is of period 29th June, 2011. The accused was asked about this documentary record in his statement (question no. 50), and he had admitted the same 'as correct'.
Ld. Defence counsel has reservation that in certificate/letter Ex. (PW 12/E) in respect of said phone, the SIM number is mentioned as S.C. No.25/14 State Vs. Rajesh Page 27 of 42 8991818101204318140 ( i.e. digit '7' is missing) , which is different from SIM Card no. 8991818101204371814, there is digit "7" as mentioned in seizure memo (Ex PW26/C).
However, this contention carries no weight as the SIM card number already mentioned in the application form (Ex PW12/A), when connection is applied, it is SIM card no. 8991818101204371814 with barcode, there is also digit "7", and the application form (Ex. PW 12/A) is not disputed by the accused, consequently as appears there is a typographical omission in the letter (Ex PW26/E) to write digit "7" while mentioning SIM card number . The contention of Ld. Defence counsel to that extent stand disposed off.
(ii) The mobile phone number 9548553133 is in the name of Sh. Satya Parkash, he is father of the accused. The application form (Ex. PW 10/A) is in respect of his application for this telephone connection. The application form also reflects SIM card no. 8991221760000991525, the call detail (Ex. PW 10/C) is of period from 20 th June, 2011 to 30th June, 2011. The accused was put this documentary record in his statement (question no. 32), accused had admitted the same 'as correct'.
(iii) The mobile phone Glid was having IMEI nos. 52820038266149 and 352820038266156 respectively of Uninor and of Reliance, the same were put to accused in his statement in question no. 39, he had admitted. This mobile handset is of Anand Raut.
S.C. No.25/14 State Vs. Rajesh Page 28 of 42(iv) The mobile phone was recovered from possession of accused, it was seized by seizure memo but the accused had reservation that the said mobile phone Glid was given by Anand Raut to him in Delhi, he had not robbed Anand Raut of his phone. To say, possession of mobile phone is not disputed but facts of its robbery.
(v) The accused in his statement u/s 313 Cr.P.C. (question no. 54) by his own narration says that he alongwith Anand Raut and PW 5 Mahesh Prajapati had stayed at Bodh, Bihar Dharamshala Motia Khan Pahar Ganj, in the intervening night of 26/27.6.2011, although, during the crossexamination of witnesses it was put to witness that PW5 Mahesh Prajapati and accused never met or seen each other.
8.3 With this precise introduction of undisputed facts, now the disputed issues are taken.
One of the most crucial issue is with regard to IMEI number mentioned on the body of the mobile handset (Ex. PW26/C) Gild and the IMEI number mentioned in the call detail record, which has been argued on behalf of both the sides, its complete particulars have already been mentioned in paragraph 7.2 and 7.4 above, being the contentions of both sides. The format of IMEI has been split into three parts (TAC, being eight digits; SNR being six digits and spare/check being one digit) and the last digit is not a part of digits transmitted when IMEI is checked, it is set to "0" when transmitted. The prosecution has called CAF records and call details in respect of telephone connections of parents of deceased and telephone connections in respect of parents of accused. It is undisputed fact that the accused was having mobile S.C. No.25/14 State Vs. Rajesh Page 29 of 42 hand set of deceased and he was using the mobile handset, shown recovered in seizure memo (Ex. PW 26/C) and during the period 27 th June, 2011 to 30th June, 2011 the mobile handset was under use of accused in respect of telephone connection in the name of his parents. The call detail report reflects IMEI no. 352820038266140 and SIM card of telephone connection 9548553133 (which is in the name of Sh. Satya Parkash, father of the accused), the said IMEI no. 352820038266140 shown in the call detail is in respect of mobile handset bearing IMEI no. 352820038266149. The same telephone handset was seized from the accused, after his arrest and said telephone was also produced in the court (being article P13), which was also identified by witness PW4. It is relevant to mention here that during the phase of final arguments, when this issue was raised, the mobile handset was called again by the court, it was produced in seal of the court and the seal was opened, phone handset is bearing IMEI no. 352820038266149 and 352820038266156. To say, it is the same telephone connection and then discovered IMEI number which was put to surveillance, the IMEI number was discovered from the call detail record of telephone nos. 8982150470 and 8982613365, which reflects IMEI no. 352820038266140 and on the basis thereof location of mobile handset was traced and after the phone was recovered, it was showing physical IMEI no. 352820038266149. To say, that IMEI number appearing on the mobile handset is 352820038266149 but when it is reflected in the call details, 14 the digits ( of TAC of 8 digit and SNR of 6 digit) are shown as it is but the last digit is shown as "0", thus the CDR reflects IMEI number as 352820038266140. Accordingly, this S.C. No.25/14 State Vs. Rajesh Page 30 of 42 contention raised as technical issue stands disposed off by holding that IEMI no. 352820038266149 in physical form on mobile hand set and IEMI no. 352820038266140 appearing in CDR are one and the same thing, which pertains to mobile handset (P13) recovered from the accused. In the similar way the IEMI no. 352820038266156 appearing in physical form on mobile hand set and IEMI no. 352820038266150 appearing in CDR [Ex PW 12/C, while using for connection/contact no. 9058950389] pertains to mobile handset (P13, for dual SIM cards) recovered from the accused.
Now the stage has come to take the other issues raised by the parties.
9.1 Ld. Defence counsel requests that the entire prosecution case is silent in respect of "What is the time of death?", the postmortem report does not give any concrete answer with regard to time of death and presence of accused in Delhi is also not established at the the relevant time of incident. The prosecution was duty bound to give precise time of death of deceased.
However, the State requests that from the sequence of events, it is apparent that the accused and Anand Raut were together, the accused had taken Anand Raut at spot, the incident had happened and Anand Raut has been murdered in the midnight falling between 27/28.6.2011.
9.2 The oral testimony of witnesses, surrounding circumstances as well as expert evidence is required to be analyzed to evaluate this S.C. No.25/14 State Vs. Rajesh Page 31 of 42 issue. The postmortem report (Ex. PW 20/A) not only renders opinion with regard to cause of death but also approximate time of death from the time of carrying postmortem. There are general observations that when postmortem was being carried, riger mortis present were in passing off stage. The postmortem was carried on 29.6.2011 at 12:00 noon and it was concluded by one hour. The time since death was opined about one and half day i.e. about 36 hours. Leading back to one and half day from the time of postmortem, it takes to the night of 27.6.2011 or between the night of 27/28.6.2011. During postmortem, it is observed (abdomen and others) the stomach was carrying semi digested food present, the walls were having no abnormality detected . So it proves that Anand Raut died before digest of his food taken on 27.6.2011 and he died one and half day prior to the time of postmortem. Under general climatic conditions ,the riger mortis remains for 19 hours 12 minutes (average), 3 hours (minimum) and 40 hours (maximum), as per Modi's medical jurisprudence [also referred in paragraph no. 21 of S.K. Yusuf case (supra)]. It happens or depends also whether cooling place is existing in the mortuary. Anand Raut died in June, 2011, which is a summer season, it also adds to the opinion of PW 20 Dr. Neha that he died in a one and half day prior to postmortem. Hence, there is no ambiguity at all, to say, that the death had happened in night falling of 27.6.2011 or midnight between 27/28.6.2011, the charge was also formally framed.
9.3 It is not disputed that this case is not of direct evidence but of circumstances evidence. The issues of last scene theory, S.C. No.25/14 State Vs. Rajesh Page 32 of 42 circumstances evidence and motive has been raised. It also needs discussion.
There are paradoxical plea and reasons of the parties with regard to company of accused with others as well as the timings, as on the one side the prosecution case is that Anand Raut was seen in the company of accused, when PW5 Mahesh Prajapati was also there and prior to it, they had stayed in Dharamshala in Bodh Vihar, Paharganj, where PW8 had also seen them. But on the other side, the accused claims that PW 5 in his statement says that it was about 10:00 am, when they disbursed. The time of incident is claimed to be between the night of 27/28.6.2011 and there is long gap from 10 am to the midnight time, the last scene theory fails. There are also no other circumstances which may infer anything against the accused. To trace answer to this issue, the evidence on record and circumstances are to be assessed.
9.3.1 As per oral testimony of PW5 Mahesh Prajapati, the accused, Anand Raut and PW5 were together in the morning of 27.6.2011 and they separated at about 10:00 am, as PW5 had to board train for his native place and as per statement of accused, u/s 313 Cr.P.C., PW5 Mahesh Prajapati, Anand Raut and accused Rajesh were present near Morya Hotel Paharganj till 12:00 noon on 27.6.2011 visavis the accused left for his residence at Aligarh, where he reached on 27.6.2011 itself and then went to attend the engagement function of his sister at Bulandshahar and then came back at Aligarh in the evening about 7:00 pm of 27.6.2011 itself.
S.C. No.25/14 State Vs. Rajesh Page 33 of 42There is call detail record (Ex. PW 10/C) for the period from 20.6.2011 to 30.6.2011. The accused had used mobile phone no. 9548553133 (which is in the name of his father Sh. Satya Parkash) and this mobile phone number/SIM has been used in the mobile handset having IMEI no. 352820038266140, showing the location at Harduaganj Dehat, Aligarh from 28.1.2011 to 30.1.2011. Prior to it, the same CDR (Ex. PW10/C) also shows that said SIM card of phone no. 9548553133 was inserted in the said phone having IMEI no. 352820038266140 on 27.1.2011 at 22:6:2 (i.e. 10:6:2 pm) and its location is in Delhi. Meaning thereby, the accused was carrying the mobile handset with him and he was in Delhi, during the period as in shown in CDR. This electronic record read with statement of accused u/s 313 Cr.P.C. nullifies the plea of accused, also through defence witnesses (i.e. DW1 Sh. Satya Parkash and DW2 Smt. Amarwati) that he was in Aligarh on 26.6.2011 or he reached there by Gomati Express at 4:00 pm on 26.6.2011. It is also the version of accused that he was in Delhi on 27.6.2011 and he had not left for his native place Aligarh on 26.6.2011. Further, the electronic record makes clear that he was in Delhi, when he had inserted the SIM card first time or used the mobile handset having IMEI no. 352820038266140 at 10:6:2 pm of 27.6.2011. It is also nullifies the statement of defence witnesses that on 27.6.2011 DWs alongwith accused went to Bulandshahar and came back at Aligarh at 7:00 pm. From this record it is amply clear that accused was in Delhi till the night of 27.6.2011 and he was in Harduganj on 28.6.2011 about 19:49:48 (i.e. 7:49:48 pm).
S.C. No.25/14 State Vs. Rajesh Page 34 of 429.3.2 By restructuring the scenes, three possibilities emerge. According to PW5, it was about 10:00 am when he see off the accused and Anand Raut while alighting from DTC bus after one stop of catching the bus, since PW5 had to board the train for Madhya Pradesh. It is also the case of prosecution. The other scene emerge is as per narration of the accused that it was about 12:00 noon of 27.6.2011, when accused see off PW5 Mahesh Prajapati and Anand Raut and the third scene is in continuation that PW5 Mahesh Prajapati alongwith bag of Anand Raut in the company of a girl disbursed. Further, accused contended that the version of PW5 cannot be believed that he had to board the train for Madhya Pardesh, however, he has also narrated that he came back to Tis Hazari and then went to Madhya Pardesh in a bus, it was about 6:00 pm in the evening, therefore, according to accused commission of crime is job of the PW5 Mahesh Prajapati, since he was in Delhi.
Whereas the evidence is on record is contrary to the contentions raised by the accused. PW5 has produced record of tickets for boarding of DTC bus for traveling a stop as well as his traveling in bus for Nimach, Madhya Pradesh (Mark DA, MarkDB, Mark DC, original were also produced and shown in court). PW5 has also given explanation that he went to Nizamuddin Railway station but no train was available prior to 7:00 pm, that is why he came back at Tis Hazari and then boarded the bus available and that time it was around 6:00 pm. Accused in his statement pleaded that there was an altercation between Anand Raut and Mahesh Prajapati on the night of 26/27.6.2011 when they had stayed in Dharamshala Bodh Vihar, Paharganj, Delhi and on S.C. No.25/14 State Vs. Rajesh Page 35 of 42 the morning of 27.6.2011, a girl was present near Morya Hotel, Paharganj Delhi when accused made a departure from that place; there is no iota of evidence brought by the accused in any form like the name or whereabouts or description of that girl, in case she was present there nor there was reference of that girl on the midnight of 26/27.6.2011 if the accused had pacified Anand Raut and Mahesh Prajapati. Moreover, there is no crossexamination to PW5 Mahesh Prajapati either on the point of that girl or he was suspected. Lastly, it is a first time that accused introduced a fact in his statement u/s 313 Cr.P.C. that the bag of Anand Raut was taken by PW5 Mahesh Prajapati but PW5 Mahesh Prajapati was not suggested, in crossexamination, any fact of carrying bag of Anand Raut.
Therefore, by analyzing the oral testimony of witnesses alongwith the electronic record, the scene being restructured is the first scene, that it was the morning to noon hours from 10:00 am to 12 noon, after making departure from Dharamshala Bodh Vihar, Paharganj, the accused Rajesh, PW5 Mahesh Prajapati and Anand Raut were together, when PW5 Mahesh Prajapati got down from the bus after having ticket of Rs. 5/ of DTC bus to further board the train for his residence Nimach, Madhya Pardesh from Nizamuddin railway station and the accused Rajesh and Anand Raut remained together. PW5 Mahesh Prajapati had also identified the accused, the person whom he was introduced by Anand Raut vis a vis he see off, while going for Nimach, MP.
S.C. No.25/14 State Vs. Rajesh Page 36 of 429.4 Since, Anand Raut and accused Rajesh were in Delhi on 27.6.2011 till night, as the arrival of accused in Aligarh is of 28.6.2011. Anand Raut is not resident of Delhi visavis accused Rajesh is resident of Aligarh, however, PW8/Priest of Dharamshala, Bodh Vihar, Paharganj has deposed with regard to stay of accused Rajesh alongwith two boys on the midnight of 26.6.2011 and all three had been seen by him in the morning of 27.6.2011. PW8 also deposed that Sh. Satya Parkash, father of accused, sometime stays in night in the said Bodh Vihar, although, he was not regular there. PW8's statement is clear about the stay of three on the night of 26.6.2011 as well as their departure in the morning of 27.6.2011 and it can be inferred that accused Rajesh had not stayed in the Dharamshala in the night of 27.6.2011 or in between the night of 27/28.6.2011. It further inters that accused Rajesh was in Delhi on 27.6.2011 but he had not stayed in the night of or between the night of 27/28.6.2011 in the said Dharamshala. The circumstances are suggesting that he was with Anand Raut and defence evidence or crossexamination of witnesses do not cull out that he was at some other place than in Delhi either on 27.6.2011 or in between the night of 27/28.6.2011.
9.5 It is already concluded being undisputed fact that mobile handset Glid was with accused Rajesh, however, there is no iota of crossexamination to any of the prosecution witnesses nor any other independent evidence by the accused as to when he was handed over mobile handset by Anand Raut or what other mobile handset was with the accused, which was not in working condition and Anand Raut had handed over him his own mobile handset to accused. Moreover, it was S.C. No.25/14 State Vs. Rajesh Page 37 of 42 not suggested to PW5 Mahesh Prajapati, if the phone was handed over to the accused by Anand Raut, since after examination on 26.6.2011 till their disbursal on 27.6.2011, they remained together. Even, plea of accused, if considered from accused point of view, that he see off Anand Raut at 12 noon of 27.11.2011, no where handing over of mobile hand set is surfacing. Further, there is no proof of such mobile hand set of accused, which was not working condition.
9.6 The accused was arrested on 30.06.2011 at Aligarh but accused claims that he was not arrested there and he was called in Delhi at police station New Usmanpur and he in compliance of instructions reached Delhi, he was arrested by the police. Again, it is undisputed fact that mobile handset was in used by the accused and CDR (Ex.PW10/C) is in respect of period from 20.06.2011 to 30.06.2011, the mobile handset Gild was in use at contact No.9548553133 from 20.06.2011 till 30.06.2011; on 30.06.2011 it was in use at location at Harduaganj, Aligarh. It is crystal clear that on 30.06.2011 when the police apprehended the accused, he was in Aligarh, the mobile handset was in use at Aligarh, consequently, the theory of accused that he was called in Delhi and arrested in Delhi does not inspire confidence for want of proof.
9.7 On the eve of arrest of accused, many articles were seized, for which seizure memo (Ex.PW6/D) was prepared and another memo (Ex. PW 26/E) was also prepared; many articles (P1 to P18) were seized. The articles seized comprises ATM debit card, withdrawal slips, cash of Rs. 300/, DTC pass , copy of RC driving licence, visiting cards, S.C. No.25/14 State Vs. Rajesh Page 38 of 42 biodata/application form of Bharat Electric Probationary Engineers 2011, back cover of mobile phone bearing words Gild, admission card of Anand Raut of BEL Probationary Engineers2011 with photographs and two SIM cards Tata Docomo. The Tshirt and shoes of accused were also seized (Ex. PW 26/H) accused gave his disclosure statement, with a narration that he may get recovered the knife (Ex. PW 28/C) and on the basis of that statement he lead the police to the place where knife was recovered, it was seized by memo (Ex. PW 26/G) near the spot and khaka of knife (Ex. PW 26/F) was also prepared.
There are reservations on behalf of the accused that it was a forest area and how the knife could be recovered under the darkness as there is no evidence of source of light prove. In addition, the police had already visited that place alleged to be place of recovery. However, his plea does not carry weight, since, the recovery of knife is not exactly and accurately the place where dead body and other articles were seized on 28.6.2011 (vide seizure memo Ex. PW 25/C) and this knife was seized around that place, which was identified by the accused and knife was recovered. This recovery is to be construed in terms of section 27 of the Evidence Act consequent to disclosure statement to be read in terms of section 25 of the Evidence Act.
9.8 Now the sequence emerge is the location of mobile handset was discovered on the basis of surveillance of telephone numbers of deceased Anand Raut, then accused was arrested, he was found in use of mobile handset of deceased alongwith SIM card of his parents and two SIM cards of deceased were also found in his S.C. No.25/14 State Vs. Rajesh Page 39 of 42 possession, which were seized (vide memo Ex. PW26/D) by the police. The recovery of knife is also consequent to his arrest and leading to the place where knife was found from the place where it was thrown by him.
10. Thus, on taking consolidated stock of all material and their link with each other, the scene emerge is that accused Rajesh came into contact with the Anand Raut (since deceased) on 25.6.2011, the Anand Raut came Delhi to write his examination in Janak Puri Center, Delhi and after examination he was also contacted by his friend PW5 Mahesh Prajapati, he was also introduced with accused Rajesh and they remained together and they also stayed in Dharamshala Bodh Vihar, Motia Khan Paharganj on the night between 26/27.6.2011 and on the morning of 27.6.2011 PW5 left the place for his residence at Nimach, Madhya Pardesh and accused Rajesh and Aanand Raut remained together.
The sequence are not only corroborating each other but they also make the chain of events complete that it was accused Rajesh who was with Anand Raut throughout, he murdered Anand Raut with a sharp knife at his neck and also robbed him of his valuables, inclusive of ATM card, wallet and other papers. The postmortem report (Ex. PW 20/A) opines cause of death as ''haemorrhage shock as a result of antemortem injury to neck and associated blood vessels produced by sharp edge weapon''.
11. It is contended on behalf of the accused that there is no proof of facts like accused Rajesh met Anand Raut in journey in train or proof of fact that Rajesh visited Parliament street or Nizamuddin at ATM S.C. No.25/14 State Vs. Rajesh Page 40 of 42 hut or went for excursion at many places in Delhi, however, these are the instances prior to the incident and it carries no weight to discard the case of prosecution. Similarly, the other contentions on behalf of the accused that in order to use ATM cards, PIN number would be required and why the accused will do it, similarly, this explanation will not give any benefit to the accused.
On the other side there are certain facts with regard to conduct of accused and also want of proof of facts, for which onus was on the accused, like he claims that Anand Raut came in his contact at railway station Delhi, what was the occasion and how he came in contact with the Anand Raut, it is mystery. The accused remained with Anand Raut throughout, even during the time when he has to write the examination, why and what were the considerations? Further, on the one side he claims that there was function and he has to attend the groom's house on 27.6.2011, then why he remained with Anand Raut in Delhi instead of reaching his home in time on such auspicious & responsible occasion? The answer of all these issues establish motive of the accused that he had determined to rob Anand Raut and he robbed him and also murdered him. Thereafter, he went to his native place on 28.6.2011. It would not give any benefit if the source of knife or the vendor of knife was not traced in investigation.
12. In view of the above detailed discussion and while weighing the evidence, it stand establish and prosecution has succeeded to prove that the accused caused the death of Anand Raut with the intention of causing such bodily injury, which accused was knowing S.C. No.25/14 State Vs. Rajesh Page 41 of 42 likely to cause death of Anand Raut and it also result into death Anand Raut, therefore, he is held guilty for offence of murder punishable u/s 302 IPC.
Since Anand Raut has also been robbed off his valuables, inclusive of mobile handset, ATM card, wallet and other papers by accused by using the deadly weapon knife, consequently the accused is held guilty for offence of robbery punishable u/s 397 read with 392 IPC. The punishment of section 392 IPC is inherented in section 397 IPC.
Announced in open court today Saturday, Magha 15 Saka 1938.
(Inder Jeet Singh) Additional Sessions Judge04 (Shahdara), KKD Courts, Delhi 04.02.2017 S.C. No.25/14 State Vs. Rajesh Page 42 of 42