Delhi District Court
Cases Needs To Be Kept In Mind. In The Case ... vs The on 22 August, 2009
1
THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC No. 50/06
STATE
versus
1. DAYANAND @ DEVA
S/o Vidya Nand
R/o Sri Nagar,
Gali No.1, H.No.542,
Rani Bagh,
Delhi.
2. SANJAY KUMAR
S/o Sh. Sharwan Kumar
R/o 1738 Multani Mohalla,
Rani Bagh,
Delhi.
3. ANIL KUMAR
S/o Sh. Kewal Kirhsan
R/o Pocket B5/167,
Sector -3,Rohini,
Delhi.
4. RAJESH @ BHANGER
S.C. No. 50/06 Page 1 of 118 pages
2
S/o Sh. Dayanand
R/o M-207, Shakur Pur,
J.J. Colony,
Delhi.
5. MANISH YADAV @ MINTU
S/o Phool Singh Yadav
R/o H.No. 8,
Rajdhani Enclave,
Pitam Pura,
Delhi.
FIR No. :559/2000
Offence Under
Section:364A/302/411/120B/34 IPC
Police Station : Saraswati Vihar
Date of institution:16.12.2000
Date of taking up the matter for the first time: 23.05.2009
Date of conclusion of arguments:27.07.09
Date of judgment: 22.08.09
AND
SC No. 411/2000
STATE
versus
1. DAYANAND @ DEVA
S/o Vidya Nand
S.C. No. 50/06 Page 2 of 118 pages
3
R/o Sri Nagar,
Gali No.1, H.No.542,
Rani Bagh,
Delhi.
2. SANJAY KUMAR
S/o Sh. Sharwan Kumar
R/o 1738 Multani Mohalla,
Rani Bagh,
Delhi.
3. RAJESH @ BHANGER
S/o Sh. Dayanand
R/o M-207, Shakur Pur,
J.J. Colony,
Delhi.
4. MANISH YADAV @ MINTU
S/o Phool Singh Yadav
R/o H.No. 8,
Rajdhani Enclave,
Pitam Pura,
Delhi.
FIR No. :411/2000
Offence Under Section:379/411/34 IPC
Police Station : Moti Nagar
Date of institution:09.02.2001
Date of taking up the matter for the first time: 23.05.2009
Date of conclusion of arguments:27.07.09
S.C. No. 50/06 Page 3 of 118 pages
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Date of judgment: 22.08.09
Counsel for State: Sh.Rakesh Kumar, Additional Public Prosecutor
Counsel for Accused Dayanand: Sh. L.K. Paswan, Advocate
Counsel for Accused Sanjay: Ms. Seema Gulati, Advocate
Counsel for Accused Rajesh: Sh. Mukesh Birla, Advocate
Counsel for Accused Manish: Sh. Harish Khanna, Advocate
Counsel for Accused Anil: Sh. B.S. Randhawa, Advocate
JUDGMENT
1. On 10.08.2000, at about 7:40am DD No.4 was recorded at PP Rani Bagh on the basis of PCR information as regards kidnapping of a boy in blue Esteem car from behind the Arya Samaj Mandir near Rani Bagh DAV School. On receipt of DD No.4, SI Manoj Kumar, investigating officer (IO) reached the spot alongwith Ct. Karamveer where mother of the kidnapped boy Smt. Poonam Verma gave her detailed signed complaint, on the basis of which PS Saraswati Vihar registered FIR No. 559/2000 for offence under Section 364 IPC and started investigation.
S.C. No. 50/06 Page 4 of 118 pages 5
2. In her complaint FIR, Smt. Poonam Verma stated that she is employed in the Delhi High Court and her husband Sh. Praveen Verma, a civil engineer has returned from Dubai an year ago; they have two sons, namely Hemant a student of ITI Jahangir Puri and Sumant a XIIth class student of DAV School Rani Bagh; on the day of occurrence, Sumant left for school in uniform with his school bag but within 5-10 minutes, sweeper of the area came to their house and informed that Sumant had been kidnapped by a young boy whose face was covered with white cloth and Sumant was taken away in a blue Esteem car; hearing the news she raised hue and cry and some neighbour called the police. In her said complaint Smt. Poonam Verma also explained that earlier, her brother in law accused Anil was staying in the first floor of the same house and on account of their property dispute, Anil had enmity with them and his wife had threatened to harm their children; about 7-8 days ago, Anil S.C. No. 50/06 Page 5 of 118 pages 6 and his wife vacated their house and informed that they were shifting to Noida but did not disclose their address. Complainant Poonam Verma expressed suspicion in her complaint that Sumant had been kidnapped by accused Anil.
3. In the course of investigation, SI Manoj Kumar recorded statements under Section 161 CrPC and thereafter handed over the investigation to Inspector R.N. Sharma.
4. The second IO, Inspector R.N. Sharma started efforts to trace out Sumant and the blue car bearing number plate DL- 5CA-2451. On receipt of information about recovery of the said car, second IO reached cement siding of Shakur Basti where he met SHO Punjabi Bagh, who had reached on the basis of DD NO. 3A of PS Punjabi Bagh. Rear seat of the car was found heavily stained with blood and SHO Punjabi Bagh informed that a 12-13 years old boy in school uniform with throat slit wound had been found in the car and sent to Sanjay Gandhi Memorial Hospital. SHO Punjabi Bagh further S.C. No. 50/06 Page 6 of 118 pages 7 informed that name of the said injured boy was found to be Sumant from books and copies in the bag.
5. Second IO sent information to parents of the deceased Sumant through SI Manoj and they reached the Sanjay Gandhi Memorial Hospital. There MLC of the deceased was produced with alleged history of "found dead in car, patient brought dead by PCR" and with local examination observation as "cut throat slit (10x2cmx2)". IO conducted proceedings under Section 174 CrPC and after getting autopsy done, handed over the dead body of the deceased to his parents.
6. During investigation, IO seized the clothes and blood sample of the deceased as well as the car involved in the offence. At the time of seizure, the car was found with black film on its glasses and right rear wheel punctured and school bag and water bottle as well as a white rope was found on the rear seat of car. After noting down the engine number and S.C. No. 50/06 Page 7 of 118 pages 8 chasis number the car was got mechanically examined from CFSL team.
7. On directions of CFSL team, IO also collected samples of blood from car, dust samples, button with blood stained fibre, white rope etc. and after preparing separate parcels, seized the same. CFSL team also lifted chance prints.
8. When checked from the traffic police control room, on the basis of engine number and chasis number, the actual registration number of the car was found to be DL-5CA-5032 regarding which a case FIR No. 411/2000 for offence under Section 379 IPC stood registered at PS Moti Nagar from where the car had been stolen on the night of 06.08.2000. IO recorded statement of the car owner Rahul Grover.
9. On the basis of FIR, IO joined accused Anil in the investigation and seized the clothes and shoes worn by accused Anil. IO also seized a saliva stained stone from front of house no. 2085A, Multani Mohalla, Rani Bagh.
S.C. No. 50/06 Page 8 of 118 pages 9
10. After adding the offence under Section 302 IPC to the FIR, on 11.08.2000 on the basis of secret information IO went to Rajeev Gandhi Market and met one Bhupender, puncture repairer and Sharad Kumar painter. In their statements, these two persons stated that accused Rajesh had got the number plate DL-CA-2451 got written from Sharad Kumar. During investigation IO met one Naresh Goel, owner of Ronak Car, an accessory shop who told that accused Mintu and Sonu had got pasted black film on the glasses of car no. DL-5CA-2451 from him.
11. On 16.08.2000, on the basis of secret information IO constituted a raiding party, which cordoned near Ashok Vihar Nahar (drainage) and arrested accused Dayanand @ Deva, who confessed having kidnapped the deceased with the help of his accomplices Sanjay @ Sonu, Rajesh @ Mangar and Manish @ Mintu as per the plans prepared by accused Anil with the intention to demand ransom after they stole S.C. No. 50/06 Page 9 of 118 pages 10 away the Esteem car. Dayanand in his confession stated that he could get recovered the weapon of offence, which is a blood stained dagger and a knife wrapped in handkerchief and concealed in the bushes in the area of Punjabi Bagh Transport. On the pointing out of accused Dayanand, police arrested accused Sanjay @ Sonu, who got recovered his pant, shirt and shoes. Accused Dayanand got recovered his jeans, skeevi and sports shoes. On 17.08.2000, accused Anil was arrested.
12. Thereafter, accused Dayanand and accused Sanjay got recovered a dagger and a knife wrapped in a handkerchief from the bushes in Punjabi Bagh Transport area. After adding offence under Section 27/54/59 Arms Act to the FIR, IO produced both the accused persons before the magisterial court for their Test Identification Parade (TIP) but both the accused persons refused to join TIP and were taken on police remand.
S.C. No. 50/06 Page 10 of 118 pages 11
13. On 19.08.2000, IO collected saliva sample of accused Sanjay and after getting accused Sanjay and Dayanand identified from witnesses, recorded their statements. After getting the scaled site plan prepared from draftsman on 20.08.2000, the second IO transferred the investigation to third IO Inspector Sanjeev Kumar.
14. Third IO obtained non bailable warrants of accused Manish and Rajesh on 24.08.2000 and arrested these accused persons on 31.08.2000 on the basis of secret information. These two accused persons got recovered the clothes worn by them on the day of offence. Saliva sample of accused Manish was taken on 01.09.2000. Both the accused were produced before magisterial court but they refused to join TIP and were sent to judicial custody.
15. After completing the investigation, PS Saraswati Vihar filed chargesheet against the accused persons for offence under Section 364A/302/411/120B/34 IPC and Section S.C. No. 50/06 Page 11 of 118 pages 12 27/54/59 Arms Act. PS Moti Nagar also filed a chargesheet against all the accused persons except accused Anil for offence under Section 379/411/34 IPC. Upon committal of the murder case and transfer of the theft case, my learned predecessor framed charges for offences under Sections 364/302/120B IPC and under Section 379/411/34 IPC to which the accused persons pleaded not guilty and claimed trial. Vide order dated 19.10.06, my learned predecessor consolidated both the cases for the purposes of trial, declaring the murder case as a lead case in which evidence pertaining to both the cases were recorded.
16. In support of their case prosecution examined 47 witnesses, whereafter accused persons were examined without oath under Section 313 CrPC and they examined two witnesses in their defence. I have heard Sh. Rakesh Kumar, Additional Public Prosecutor for State and Sh. Harish Khanna, counsel for accused Manish, Sh. Mukesh Birla S.C. No. 50/06 Page 12 of 118 pages 13 counsel for accused Rajesh, Miss Seema Gulati, amicus curiae for accused Sanjay, Sh. L K Passwan counsel for accused Dayanand and Sh. B.S. Randhawa counsel for accused Anil, who took me through records over marathon day to day hearings.
17. PW1 HC Savitri is a formal witness, who recorded FIR Ex. PW1/A after recording DD No. 5A Ex. PW1/C. PW1 also made endorsement Ex. PW1/B on rukka and sent special report to senior officers vide DD No. 15A Ex. PW1/D.
18. PW2 Smt. Poonam Verma is the first informant, who deposed that on 10.08.2000 at about 7:30am, the deceased left home for school in white uniform, carrying school bag and water bottle; after about 10 minutes, she heard a noise that her son had been kidnapped by someone and Smt. Ramo, sweeper of the area came and informed about kidnapping of the deceased in a blue car by a person whose face was covered by white cloth. PW2 further deposed that S.C. No. 50/06 Page 13 of 118 pages 14 her brother in law accused Anil and his wife Snehlata, who had been residing in the first floor of the ancestral house had left the house 7-8 days ago informing them that they were shifting to Noida. On account of property dispute, accused Anil was not having good relations with her and her husband and at the time of leaving, accused Anil had threatened to get her husband and children killed, as per PW2, but she was not allowed by her parents in law to lodge any police complaint for the sake of their reputation. She proved her statement recorded by police as Ex. PW2/A. In her cross examination, PW2 stated that the property dispute between her husband and brother in law started only after marriage of accused Anil about 2-3 years before the occurrence, though no civil dispute is pending in any court. She could not give any specific reason for shifting of accused Anil from their house. PW2 was confronted with her statement Ex. PW2/A where it S.C. No. 50/06 Page 14 of 118 pages 15 is not recorded that her parents in law had told her not to lodge any police report of threat from accused Anil.
19. PW3 HC Janak Raj is a formal witness, who while working as duty officer at PS Punjabi Bagh recorded DD No.3 Ex. PW3/A on 10.08.2000 and handed over the same to SI Balihar for investigation and conveyed the same to the SHO.
20. PW4 Smt. Neeru Kukreja is a resident of the locality where the deceased resided, but she did not support case of the prosecution and was declared hostile. PW4 stated that on 10.08.2000 while working in kitchen at about 6:30am she heard the sound of opening and closing of car door and on peeping out of the window she saw a blue car parked in front of her house but did not see the occupant thereof. She made telephone call to her brother in law Sh. Krishan Lal Kukreja about the said car, who called PCR and instructed her to note down registration number of the car. At about 7:15am the car started from that place and she noted down the S.C. No. 50/06 Page 15 of 118 pages 16 registration number but she remembered the number only as DL-2451. In her cross examination by the learned prosecutor, PW4 stated that she had not seen four-five persons in the car and admitted that registration number of the said car was DL-4C-2451. In her cross examination by learned defence counsel, PW4 stated that she had noted down registration number of the car on a piece of paper but did not remember if she handed over the paper to the police. On being confronted with her statement Ex. PW4/DA, the witness was found to have not stated facts mentioned by her in chief examination as above in the statement to the police.
21. PW5 Sh. Krishan Gopal Kukreja is the brother in law of PW4 and he deposed that on 10.08.00 at about 7.15 am he received a phone call from Smt. Neeru that a blue esteem car is parked in front of her house and someone from the said car is spitting on the wall; on this, PW5 informed PCR.
S.C. No. 50/06 Page 16 of 118 pages 17
22. PW6 Sh. Rahul Grover is the registered owner of the maruti Esteem car no. DL-5CA-5032 involved in the offence, who stated that on 06.08.00 he parked his car in front of Shagun Banquet Hall in Moti Nagar at about 10.30 pm for looking after his catering work in the banquet. At about 11.45 pm when he came out of the hall, he found his car missing, so he immediately informed PS Moti Nagar. On next morning, he lodged an FIR at PS Moti Nagar regarding missing car. PW6 deposed that at the time when he parked his car, its glasses were plain and without any dark film. On 10.08.00 after receiving a phone call from PS Moti Nagar, he reached PS Saraswati Vihar and was taken to cement siding of Shakurpur by the police officials, where his car was found with changed number plates and black film on glasses. As per PW6, he saw a school bag and water bottle on the rear seat of his car and found the stepney missing and one tyre punctured. PW6 identified his car as Ex. P1, stepney S.C. No. 50/06 Page 17 of 118 pages 18 recovered by police as Ex. P2, bag containing books and copies as Ex. P3, water bottle as Ex. P4, seat covers as Ex. P5 and four foot mats as Ex. P6/1-4.
23. In his cross examination PW6 stated that it is mentioned in his statement u/s 161 CrPC that he was shown his car at PS Saraswati Vihar, but the car had been shown to him at cement siding. On being confronted with his statement Ex. PW6/DA, PW6 was found to have not stated in the earlier statement that glasses of his car were plain and without film. PW6 proved his earlier statement as Ex. PW6/DB and admitted having not stated in his earlier statement that one tyre of the car was found punctured.
24. PW7 Sh. Naresh Goel stated that he was in the business of car accessories and had his showroom opposite Ram Mandir on Main Road in Rani Bagh. He did not support prosecution and flatly denied having identified any car or accused persons. On being declared hostile by the S.C. No. 50/06 Page 18 of 118 pages 19 prosecution, in cross examination by the learned prosecutor, PW7 stated that police did not record his statement.
25. PW8 Ramesh Kumar also did not support the prosecution and stated that the accused Rajesh, Manish, Dayanand and Sanjay are not known to him. On being declared hostile by the prosecution, in his cross examination PW8 stated that police did not record his statement.
26. PW9 Sh. Kewal Krishan Rajput is the grandfather of the deceased and father of accused Anil. PW9 deposed that accused Anil was involved in bad society and took addiction to smack, whereafter he was sent abroad. After returning to India, accused Anil started living with PW9 and family. When Praveen Kumar (father of the deceased), elder son of PW9 went abroad, accused Anil used to quarrel with wife and children of Praveen. Even after marriage, accused Anil continued to live in the same house, though separated from rest of the family. PW9 described that he extended financial S.C. No. 50/06 Page 19 of 118 pages 20 help to accused Anil and even got employed his wife in a school. On 31.08.2000, as per PW9 he disowned accused Anil by way of publication in a newspaper. In his cross examination PW9 stated that there is a gap of 10-11 years between his two sons Anil and Praveen and prior to marriage of Anil, they had very cordial relations. In cross examination, PW9 admitted his signatures on bail bond and affidavit Ex. PW9/D1& D2 reflecting the involvement of elder brother of the deceased in a criminal case for offence under Section 452/324/506/34 IPC.
27. PW10 Sh. Jai Dayal Khera is a neighbour of the complainant but he also did not support prosecution case. In chief examination, PW10 stated that on 10.08.2000 at about 7:30am from balcony of his house he saw one blue car in front of his house and one person with covered face lifted a child and put him in the said car in which one person was on driving seat and thereafter the car fled away with the said S.C. No. 50/06 Page 20 of 118 pages 21 child. PW10 stated that since he was not wearing his spectacles, he could not identify the driver or the car. He also could not tell registration number of the car. In his cross examination by learned prosecutor, PW10 stated that the said car might have been of Esteem make and the car shown to him might be the same car in which the child had been kidnapped. PW10 could not identify the accused persons shown to him in court.
28. PW11 Sharad Kumar Shukla is a painter, who wrote registration number on the two number plates brought by two persons to him and he charged Rs.25/- from them. In his chief examination, PW11 identified the said number plates as Ex. PW11/1&2 and stated that the same had been earlier shown to him in the police station during investigation. But PW11 failed to identify the accused persons, so he was declared hostile. In his cross examination by the learned prosecutor, PW11 specifically denied that accused Rajesh S.C. No. 50/06 Page 21 of 118 pages 22 and Deva are the said two persons who had got the number plates written from him. In his cross examination by the defence counsel, PW11 stated that he had not initialed or put any distinct mark of identification on the said number plates.
29. PW12 HC Yashwant Singh was working as MHC(m) at the relevant time. On 10.08.2000, SHO PS Saraswati Vihar deposited six sealed parcels sealed with seal of RN and one Maruti Esteem car bearing registration number DL-5CA-2451 in malkhana vide entry Ex. PW12/A. Thereafter, on 16.08.2000, 17.08.2000, 19.08.2000 and 01.09.2000 different sealed parcels were deposited in the malkhana vide entries Ex. PW12/B, C, D and E respectively. On 11.08.2000, PW12 sent two sealed parcels to FSL through Ct. Subhash Chand who deposited the case property and handed over RC Ex. PW12/F. On 06.09.2000, PW12 sent four sealed parcels and one form FSL to CFSL through Ct. Subhash Chander vide RC S.C. No. 50/06 Page 22 of 118 pages 23 Ex. PW12/G. So long as the case property remained with him, the seals remained intact.
30. PW13 Smt. Ramo is the sweeper of the area, who also did not support prosecution. PW13 stated that about 4-5 years ago she was sweeping at a road in Multani Mohalla at about 8:30am and upon hearing cries of a boy she became unconscious and did not see as to what had happened. In her cross examination on being declared hostile by learned prosecutor, PW13 stated that police never met her in connection with this case. She also denied having visited PS Saraswati Vihar to identify the accused persons. On being shown in court during her cross examination, PW13 refused to identify the accused persons stating that she had never seen them.
31. PW14 Sh. Suresh Kumar is another neighbour of the deceased, but he also turned hostile to the prosecution and stated that he had not told anything to the police. In his S.C. No. 50/06 Page 23 of 118 pages 24 cross examination by the learned prosecutor, PW14 stated that on 11.08.2000 he was called to PS Saraswati Vihar and on enquiry he told the inspector that he left house early in the morning and returned late from duty; he did not disclose number of any vehicle which might have been parked near his house as many persons used to park their vehicle near his house. PW14 was confronted with his statement Ex. PW14/A under Section 161 CrPC but he denied having stated the contents thereof. On being shown the accused Dayanand, Sanjay, Rajesh and Manish, PW14 denied having seen them near the Esteem car on 10.08.2000 at 6:30am.
32. PW15 Sh. Praveen Chander, father of the deceased is star witness of the prosecution. PW15 explained about his strained relations with accused Anil on account of the latter being jealous of his two sons and that while leaving the house, accused Anil had threatened not to spare children of PW15. As regards the day of incident, PW15 stated that on S.C. No. 50/06 Page 24 of 118 pages 25 10.08.2000 he had gone to fetch milk from market and when he returned, he saw a blue Esteem car bearing number plate DL-5CA-2451 near the house of Mr. Kukreja, who resided just opposite his residence; one boy was sitting on driver seat of the car while three persons were standing outside the car in suspicious circumstances, so he remembers the registration number of the car; at gate of the house PW15 met his son the deceased in uniform, carrying a school bag and water bottle while leaving for school; PW15 kept the milk container in kitchen and was resting for a while; after passage of some time, PW15 heard noise from the street that some persons had kidnapped a school child in a blue Esteem car. Immediately, as per PW15, he reached there alongwith his wife and Smt. Ramo, sweeper of the street told them that their son had been kidnapped in a blue Esteem car. When PW15 reached near house of Mr. Kukreja, the car and boys were not present, so he suspected that it is those boys who S.C. No. 50/06 Page 25 of 118 pages 26 kidnapped his sons in blue Esteem car. Since accused Anil had threatened while leaving the house, PW15 suspected his involvement also. After some hours, PW15 received a message from police that the Esteem car had been recovered but the child had been murdered by slitting his throat. PW15 reached Sanjay Gandhi Hospital, where he identified the dead body of the deceased and took over the same after post mortem. PW15 proved his statement regarding dead body identification as Ex. PW15/A and receiving memo as Ex. PW15/B. After leaving the dead body of the deceased at residence, PW15 reached cement siding, Shakur Basti, from where the car had been recovered. At the cement siding, PW15 found the same blue Esteem car that had been seen by him near the house of Mr. Kukreja. Thereafter, PW15 returned home to perform last rites of his son. On 17.08.2000, when PW15 was roaming around the cement siding, near Punjabi Bagh Transport Centre, he met police S.C. No. 50/06 Page 26 of 118 pages 27 officials of PS Saraswati Vihar, who were accompanied with two accused persons with their faces covered and those two persons got recovered from bushes between plot no. 123-124 Punjabi Bagh Transport Centre a knife and a dagger wrapped in one blue handkerchief with white and red border and cross marks with word "ENGLAND" written on the same. PW15 proved the sketches of the dagger and the knife as Ex. PW15/C&D and stated that dagger and knife in the handkerchief were converted into pullanda sealed with seal of RM and seized vide memo Ex. PW15/E. PW15 identified those two accused persons in court as accused Dayanand and Sanjay and the handkerchief, dagger and knife as Ex. P1 to Ex. P3 respectively. As per PW15, he identified the accused Dayanand and Sanjay in police custody on 19.08.2000 as the same persons whom he had seen near the blue Esteem car on 10.08.2000. On 01.09.2000, PW15 went to PS Saraswati Vihar to check progress of investigation and joined the S.C. No. 50/06 Page 27 of 118 pages 28 proceedings of police who were about to leave alongwith two accused persons Mintoo and Rajesh with their faces covered. As per PW15, accused Mintoo led the police party to a house in Rajdhani Enclave and got recovered a black purse from double bed lying in a room in rear portion of the said house; from inside the said purse, pollution control slip and photocopy of registration certificate and insurance of vehicle no. DL-5CA-5032 alongwith a key ring were taken out. Purse and the items recovered from it were converted into a pullanda and sealed with the seal of MKT. As per PW15, accused Mintoo also handed over to police a cream shirt bearing burn spots on one sleeve shoulder and blood stains on the other shoulder; shirt was converted into pullanda and sealed with the seal of MKT. Both the pullandas were seized vide memo Ex. PW15/F. Accused Rajesh led the police party to his house in Shakur Pur and got recovered from roof of first floor toilet, a blue shirt and a S.C. No. 50/06 Page 28 of 118 pages 29 black pant, both blood stained and a pair of blood stained jogger shoes, all of which were converted into pullanda sealed with seal of MKT and seized vide memo Ex. PW15/G. Thereafter, as per PW15 both the accused persons led the police party to M-Block Bus Stand of Shakur Pur and got recovered from diggi of a fiat car parked behind the bus stand, one rim with burst Bridgestone tyre and tube, which were converted into pullanda in a jute bag and sealed with seal of MKT and seized vide memo Ex. PW15/H. PW15 identified in court the said two accused persons Rajesh and Manish as the same persons who were standing near driver door and sitting on driver seat respectively in the blue Esteem on 10.08.2000. PW15 identified the black purse as Ex. P4, key ring as Ex. P5, photocopy of registration certificate as Ex. P6, copy of insurance as Ex. P7, copies of four pollution certificates as Ex. P8/1-4, one envelop containing battery guarantee card as Ex. P9, cream shirt as Ex. P10, sports shoes S.C. No. 50/06 Page 29 of 118 pages 30 as Ex. P11, black pant as Ex. P12, shirt as Ex. P13, rim, burst tyre and tube as Ex. P14 and the blue Esteem car as Ex. PA.
33. In his cross examination PW15 stated that his surviving son Hemant was never arrested or involved in any criminal case. As per PW15, his statement was recorded only once on 10.08.2000 at about 8:00am. House of Mr. Kukreja is at a distance of 200 yards and is not visible from his house, as per PW15. PW15 explained the site as regards the road in front of his house and admitted that a short turn on the road cannot be negotiated. During cross examination, PW15 was confronted with his statement Ex. PW15/DA in which almost entire statement as regards events of 10.08.2000 were not mentioned. PW15 was confronted with his earlier statement Ex. PW15/DA, which did not mention that accused Anil was not earning and used to quarrel with his parents; that accused Anil was jealous of him; that accused Anil had shifted to Rohini; that when he was returning after fetching S.C. No. 50/06 Page 30 of 118 pages 31 milk he saw car number DL-5CA-2451; that he saw four persons standing near the car in suspicious condition; that he heard noise from street that some persons kidnapped a school child in blue car; that Ramo told them that his son had been kidnapped in blue car; that he suspected the kidnapping of his child to have been done by those persons in the blue car; that on 01.09.2000 he went to PS Saraswati Vihar to check progress of the case; that both the accused including accused Manish had pointed out the fiat car parked behind the bus stand from diggi whereof rim and tyre-tube were recovered; that he had seen the number plate of blue Esteem car. PW15 admitted having not stated in his previous statement Ex. PW15/DA that on 17.08.2000 he was roaming around the cement siding Shakur Basti and he met police officials near Punjabi Bagh Transport Centre; and that he had identified number plate of the car. PW15 stated that till recording of FIR he had not told his wife that he had seen S.C. No. 50/06 Page 31 of 118 pages 32 a maruti Esteem car with four persons in suspicious circumstances in front of house of Mr. Kukreja and this fact had been disclosed by him to the police in his statement recorded at 9:30am on 10.08.2000. On 01.09.2000 Pw15 had been called by police to PS Saraswati Vihar but he did not remember for what reason and what proceedings were conducted at police station. As per PW15, they left the police station at 9:15am on 01.09.2000 and he was alone on his scooter while police officials were in their gypsy. Rajdhani Enclave is about 1 ½ km from PS Saraswati Vihar while house of PW15 is at a distance of 2 km from the police station. As per PW15, house of accused Manish was single storeyed but he did not know about adjacent houses. When the police party reached, house of accused Manish was found open but PW15 did not know if accused Manish was residing alongwith his parents and three brothers. At house of Manish the police party reached at 9:30am and left back at S.C. No. 50/06 Page 32 of 118 pages 33 about 10:30am. PW15 specifically stated that on 01.09.2000 they reached back police station in the evening after sun set and 15 minutes after reaching the police station he left for his house. House of accused Rajesh was double storeyed, as per PW15 but he could not tell about the other houses in the area. As per PW15, passersby as well as neighbours of accused Rajesh and hawkers in the area were requested to join the proceedings but they refused. PW15 further stated that lock of the diggi was open and they remained there for about 45 minutes but none of the car repair shopkeepers claimed ownership of the said car. At cement siding, PW15 was alone at 9:00-9:30am and police met him at 9:45am at Punjabi Bagh Transport Centre which is ½ km away from the cement siding.
34. PW16 Sh. Kamal Kishore is a formal witness, who identified dead body receipt as Ex. PW16/A, as the deceased was his nephew.
S.C. No. 50/06 Page 33 of 118 pages 34
35. PW17 Sh. Phool Singh is father of accused Manish, who deposed that in the year 2000 Manish was living with his family members in house no.8 Rajdhani Enclave but on 01.09.2000 police never visited his house. However, PW17 was not declared hostile by the prosecution.
36. PW18 SI Dinesh Pal deposed that on 10.08.2000 while posted at PS Saraswati Vihar, on receiving a message he reached cement siding alongwith Inspector R.N. Sharma and other police officials and found car no. DL-5CA-2451 parked there. They were informed that dead body of the child had already been sent to SGM Hospital by police of PS Punjabi Bagh. PW18 remained on the spot while IO left for SGM Hospital. As per PW18, there was blood inside the car. After return of IO, CFSL team and photographer were summoned to the spot. On directions of CFSL officers, blood stained clippings were lifted from the rear seat, floor, rear door and front side of the car. Mats as well as dust from mats of driver S.C. No. 50/06 Page 34 of 118 pages 35 seat and rear seat of the car also were lifted and converted into pullandas sealed with seal of RN. One blood stained button lying on rear seat of the car also was lifted and converted into pullanda sealed with RN. One plastic rope 84 cm long lying on rear seat as well as fibre sticking on inner portion of driver window were also converted into pullandas sealed with RN. All these 10 parcels were seized vide memo Ex. PW18/A. School bag and water bottle lying in the car were seized vide memo Ex. PW18/B and car was seized vide memo Ex. PW18/C. PW18 identified the rope, seat covers, school bag, water bottle and mats as Ex. PW18/1-5 and stated that at the time of seizure, the car was without stepney and its rear tyre was burst and its glasses were covered with dark black films.
37. PW19 SI Anant Kiran deposed that he was a member of the raiding party constituted on 16.08.2000 at PS Saraswati Vihar, which arrested accused Dayanand at about 7:10pm on S.C. No. 50/06 Page 35 of 118 pages 36 the basis of secret information vide arrest memo Ex. PW19/B and personal search memo Ex. PW19/C. Accused Dayanand gave disclosure statement Ex. PW19/A and got arrested accused Sanjay from his house in Rani Bagh vide arrest memo Ex. PW19/E and personal search memo Ex. PW19/F. Accused Sanjay gave disclosure statement Ex. PW19/D and got recovered from his house a black pant, a shirt and a pair of sport shoes stained with blood which were converted into sealed pullanda and seized vide memo Ex. PW19/G. From there, the accused led the police party to Transport Nagar Punjabi Bagh but nothing was recovered from there. Thereafter, they reached the house of accused Dayanand from where an orange skeevi and one jeans and a pair of sport shoes were recovered which were converted into sealed pullanda and seized vide memo Ex. PW19/H. Thereafter the police party reached police station at about midnight and kept both the accused persons in lock up. On 17.08.2000, at S.C. No. 50/06 Page 36 of 118 pages 37 about 5:15am, PW19 and the raiding party apprehended accused Anil Kumar from his residence vide arrest memo Ex. PW19/J and personal search memo Ex. PW19/K and took him to lock up of the police station after recording his disclosure statement Ex. PW19/I. Accused Dayanand and Sanjay were taken out of lock up and they led the police party to Punjabi Bagh flyover, where PW15 Sh. Praveen also joined the investigation. Accused led the police party to plot no. 124/127 Punjabi Bagh Industrial Area and from bushes in the said plot got recovered a dagger and a knife wrapped in a handkerchief. PW19 identified the handkerchief, dagger and knife as Ex. P1 to Ex. P3, clothes and shoes recovered on pointing out of accused Sanjay as Ex. PW19/1-3 and clothes and shoes recovered on the pointing out of accused Dayanand as Ex. PW19/4-6. As per PW19, when accused Dayanand and Sanjay were taken out of lock up on 17.08.2000 their faces were covered and during the entire S.C. No. 50/06 Page 37 of 118 pages 38 proceedings of recovery of knife and dagger till their return to the police station, their faces remained covered.
38. In his cross examination, PW19 stated that they reached Wazirpur JJ Colony at about 6:40pm and after none of the passersby agreed to join the proceedings, accused Dayanand was apprehended at 7:10pm from ground floor of his double storeyed house. On 17.08.2000, they started from police station at 7:00am and reached Transport Nagar, Punjabi Nagar at about 7:30am as per PW19 and after the recovery and seizure proceedings of weapon of offence for 2 ½ hours, they left Transport Nagar at 10:15am and reached back police station at 10:30am. The articles that were recovered from house of accused Sanjay were recovered from an almirah as per PW19. PW19 stated that accused Anil repeatedly visited the police station after 10.08.2000 and was interrogated by the IO.
S.C. No. 50/06 Page 38 of 118 pages 39
39. PW20 SI Manoj Kumar is the first investigating officer, who on receipt of DD No. 4A Ex. PW20/A on the basis of PCR call on 10.08.2000 at 7:40am reached DAV School Multani Mohalla Rani Bagh and was informed that a school boy had been kidnapped in a blue Esteem Car. After recording statement Ex. PW2/A of mother of the kidnapped child, PW20 made his endorsement Ex. PW20/B and sent the rukka to police station through Ct. Karambeer. Message was also flashed about the kidnapping with the request to police and public to trace out the blue Esteem car. On the basis of wireless message, PW20 reached the cement siding and found maruti Esteem car number DL-5CA-2451, right rear tyre whereof was burst and police of PS Punjabi Bagh as well as PS Saraswati Vihar were present there and the injured child had been removed to the hospital. On inspecting the car, PW20 found blood on its rear seat, mats and inner sides of the doors; a school bag also was lying on rear portion of S.C. No. 50/06 Page 39 of 118 pages 40 the car and copies in the bag bore name of Sumant; a rope and a button also were lying on the rear seat of the car; a water bottle was lying between the two front seats. On directions of Inspector, PW20 went to the house of the kidnapped child from where alongwith father and brother of the child he reached Sanjay Gandhi Hospital Mortuary. After post mortem, dead body of the deceased was handed over to his father. The doctor on duty handed over to PW20 one sealed parcel containing apparel of the deceased and an envelop containing blood gauze, which parcel was seized vide memo Ex. PW20/C. From hospital, PW20 reached the cement siding and handed over the investigation to Inspector R.N. Sharma. PW20 also proved site plan of the spot of kidnapping as Ex. PW20/D as prepared by him. From the spot, as per PW20 some spit also was lifted and converted into sealed pullanda, seized vide memo Ex. PW20/E. PW20 also narrated the manner of arrest of accused Dayanand, S.C. No. 50/06 Page 40 of 118 pages 41 Sanjay and Anil, as described by PW19. PW20 proved arrest memo and personal search memo of accused Anil as Ex. PW20/F&E respectively and stated that a shirt, a T shirt, one jeans and a pair of school shoes of accused Anil were seized vide memo Ex. PW20/G. PW20 also narrated about recovery of knife and dagger wrapped in a handkerchief, as described by PW15. On the basis of information furnished by Inspector Sanjeev Tyagi, PW20 and other officials on 31.08.2000, at about 8:15pm reached a park near the Transport Centre at Sanjay Gandhi Transport Nagar and on pointing out by secret informer apprehended three persons including accused Manish and Rajesh who were arrested, their personal search memos being Ex. PW20/H&I. Accused Manish and Rajesh gave disclosure statements Ex. PW20/J&K and with their faces covered they were taken to lock up in police station. PW20 also narrated about the articles got recovered from accused Manish and Rajesh on 01.09.2000, as S.C. No. 50/06 Page 41 of 118 pages 42 deposed by PW15 and stated that during the entire period of proceedings on 01.09.2000, both the accused remained in muffled face. PW20 identified the case property Ex. P1-P28.
40. In his cross examination PW20 stated that he had reached the spot of kidnapping at 7:45am and remained there for about 1 hour 15 minutes but he recorded only one statement, which was of mother of the deceased; when he came back to the spot at about 11:00 am, then he recorded statements of Ramo, Sh. Jai Dayal Khera and Smt. Neeru Kukreja; except these four persons, PW20 did not record statement of any one else. PW20 admitted that identity of accused through TIP must be established prior to proceeding further with the investigation. As per PW20, statement of father of accused Manish was not recorded since he refused to join investigation. PW20 stated that on 01.09.2000 they reached back the police station at about 1:30pm to 2:00pm. On 17.08.2000, they left Punjabi Bagh Transport Centre at S.C. No. 50/06 Page 42 of 118 pages 43 9:00am-9:15am as per PW20, and reached back the police station. Accused Manish and Rajesh were apprehended, as per PW20, when both of them were sitting in the park.
41. PW21 Ct. Subhash is a formal witness who deposited the sealed parcels of recovered articles in FSL on 11.08.2000 and so long as the case property remained with him seals remained intact.
42. PW22 is Dr. Komal Singh from Safdarjung Hospital, who had conducted postmortem on the deceased. After describing the external injuries found on the deceased, which are mainly a long incise cut mark on anterior side of neck, PW22 gave his opinion that cause of death of the deceased was haemorrahagic shock under respiratory embarrassment produced by the cut throat and involvement of more than one person can not be ruled out. PW22 proved his postmortem report as Ex.PW22/A and stated that injury S.C. No. 50/06 Page 43 of 118 pages 44 mentioned in the postmortem report was caused by sharp edged weapon.
43. PW23 Ct. Karamveer proved photographs taken by him as Ex.PW23/1-17, negatives whereof are Ex.PW23/18-24.
44. PW24 Ct. Ratnesh delivered a copy of FIR of this case to the office of the DCP, the Joint CP and the concerned Metropolitan Magistrate.
45. PW25 SI Balihar Singh stated that on receipt of DD No. 3A on 10.08.2000 he reached the cement siding along with Ct. Chanderveer and found SHO Punnjabi Bagh and other officers present there; Maruti Esteem car no. DL 5CA 2451 was also found at the cement siding.
46. PW26 Dr. Rajender Singh proved CFSL report Ex. PW26/A.
47. PW27 Dr. C.G. Gupta proved CFSL reports Ex.PW27/A to Ex. PW27/D. S.C. No. 50/06 Page 44 of 118 pages 45
48. PW28 HC Ranbir Singh is Investigating Officer of case FIR No. 411/2000 of PS Moti Nagar and on 07.08.2000 on being called by Additional SHO PS Saraswati Vihar he reached the police station alongwith complainant who identified his car No. DL 5CA 5032 on which fake number plate of DL 5CA 2451 had been fixed and RC and stepney were not found in the car. In cross examination, PW28 was confronted with his earlier statement Ex. PW28/DA in which the original number of car and fake number plate were not mentioned.
49. PW29 Ct. Satya Prakash deposed that on 19.08.2000 while posted at PS Saraswati Vihar, under the directions of Inspector R. N. Shrma, he obtained saliva samples of accused Sanjay @ Sonu in a plastic vial and sealed the same with seal of RM and seized the same vide seizure memo PW29/A. S.C. No. 50/06 Page 45 of 118 pages 46
50. PW30 ASI Abdul Jabar stated that on 10.08.2000, while posted at PCR Control Room at about 07.00am he received a PCR call from one Chander Kant Makkar and recorded the same in PCR form. Vide order Ex.PW30/A the PCR form has been destroyed.
51. PW31 Ct. Rajvir Singh stated that he was posted at Police Post Rani Bagh on 10.08.2000 and he as well as HC Dharamveer were directed to trace out a blue Maruti Esteem car, which they tried but failed.
52. PW32 Ct. Karambir stated that on 10.08.2000 at about 07.40 am DD No. 4 was received by SI Manoj Kumar, with whom he went to house of the deceased where mother of the deceased made her statement to the IO and PW32 took rukka to PS Saraswati Vihar for registration of FIR.
53. PW33 HC Dharamveer stated that in his presence statement of mother of deceased was recorded and the S.C. No. 50/06 Page 46 of 118 pages 47 Investigating Officer directed him to trace the blue Esteem car.
54. PW34 HC Suresh Kumar was posted in PS Moti Nagar and on 07.08.2000, while working as Duty Officer at about 05.00pm he recorded statement of complainant Rahul Grover and registered FIR Ex. PW6/DA on the basis thereof for offence under Section 379/411 IPC.
55. PW35 SI Sahasra Pal Singh of PS Saraswati Vihar deposed that on 31.08.2000, he alongwith the then Addl. SHO and staff apprehended accused Manish and Rajesh from park near Jai Shankar Transport Office on the pointing out by secret informer. As per PW35, the said two accused persons were sleeping in the park at that time and on noticing the police they started running but were apprehended. Disclosure statements of both these accused persons were recorded and they were arrested. On 01.09.2000, accused S.C. No. 50/06 Page 47 of 118 pages 48 Manish and Rajesh pointed out different places vide memos Ex. PW35/A-L, as per PW35.
56. PW36 ASI Krishna Nand deposed that he was posted in PCR on 10.08.2000, when he received a call from control room that a car bearing no. DL-5CA-2451 was parked near Cement Siding, Shakur Basti, in which a child aged 10 years was lying tied. On reaching the spot, PW36 found the child bleeding from his neck and right rear tyre of the car punctured. He took the child to Sanjay Gandhi Memorial Hospital where the child was declared brought dead.
57. PW37 ASI Shafiq Ahmed who was posted at PCR Head Quarters stated that on 10.08.2000, at 7:30am he recorded PCR form Ex. PW37/A.
58. PW38 Inspector S.K. Ojha stated that he was SHO Punjabi Bagh and on 10.08.2000 upon receipt of PCR call he reached the cement siding, Shakur Basti, alongwith his staff and found a blue Esteem car no. DL-5CA-2451 with its rear S.C. No. 50/06 Page 48 of 118 pages 49 right wheel punctured and on rear seat of the car a child in school uniform with cut throat was lying. Through PCR van PW38 got the child sent to hospital.
59. PW39 HC Karan Singh stated that he was posted at PCR Head Quarters on 10.08.2000 and at 9:38am he received a telephonic call of one Mahender Singh that car no. DL-5CA- 2451 had been left by some person 5-10 minutes ago at the cement siding, Shakur Basti, in which a boy was there with legs and hands tied. PW39 filled up PCR form Ex. PW39/A .
60. PW40 Shri Chander Kant Makkar is a public witness, who did not support prosecution case. PW40 stated that on 10.08.2000 he went to his friend Sh. Gopal Krishan Kukreja's house at 7:30am and was told that some persons were sitting in a maruti car in front of their house in suspicious position for past some time, so he called up PCR.
61. PW41 Sh. D.P. Tyagi, Sanitary Inspector of MCD proved duty roaster of Smt. Ramo as Ex. PW41/A as regards her duty S.C. No. 50/06 Page 49 of 118 pages 50 on 10.08.2000. In his cross examination PW41 stated that the roaster brought by him is maintained by Assistant Sanitary Inspectors, who had a duty to visit the spot where sweepers were posted thrice a day and marked their attendance.
62. PW42 Inspector Sanjeev Tyagi stated that he was posted at PS Saraswati Vihar as Addl. SHO and on 20.08.2000 further investigation of this case was handed over to him. PW42 obtained arrest warrants of accused Manish and Rajesh who were arrested from park near Jai Shankar Transport on 31.08.2000 on pointing out by secret informer. PW42 proved arrest memos of accused Rajesh and Manish as Ex. PW42/A&B and informations of their arrest as Ex. PW42/C&D. PW42 also narrated the recoveries got effected by accused Rajesh and Manish on 01.09.2000, as described above. On 06.09.2000, under the directions of PW42 the MHC(M) handed over the recovered clothes and shoes of S.C. No. 50/06 Page 50 of 118 pages 51 accused persons to Ct. Subhash, who deposited the same in FSL. PW42 identified the seized property as Ex. P1 to Ex. P14.
63. In his cross examination, PW42 admitted that the place of occurrence and other places mentioned in memos Ex. PW35/B-J were already mentioned in the case file. On 22.08.2000 PW42 had gone to the house of accused Manish where father of accused met him. PW42 admitted that Sh. Praveen remained with them on 01.09.2000 from 7:00am to 12:30pm and during that period accused Manish also remained with them, though they knew that accused Manish had to be got identified from PW Praveen. PW42 stated that Praveen was with them in their gypsy and not on his own scooter.
64. PW43 Sh. M.K. Yadav, Assistant Sanitary Inspector of MCD proved attendance dated 10.08.2000 of Smt. Ramo, sweeper in Multani Mohalla Beat as Ex. PW43/A. In his cross examination PW43 admitted that Ex. PW43/A did not S.C. No. 50/06 Page 51 of 118 pages 52 mention the place or duty hours or even signatures of Smt. Ramo.
65. PW44 Inspector Ram Niwas Sharma stated that he was posted as Addl. SHO PS Saraswati Vihar on 10.08.2000 and on receipt of DD No. 4 at 7:40am he alongwith staff reached house of the deceased where SI Manoj Kumar with his staff was present and recorded statement of the complainant Smt. Poonam. At about 9:55am a call from PS Punjabi Bagh was received at PS Saraswati Vihar to the effect that the car involved in the offence was found parked near the cement siding Shakur Basti in which a boy in injured condition was found. On reaching the cement siding, PW44 found the car number DL-5CA-2451 with its rear right tyre punctured and its glasses covered with blue film. A school bag was lying in diggi of the car and injured had already been shifted to the hospital. Leaving SI Dinesh Pal at cement siding and directing SI Manoj Kumar to inform relatives of the deceased S.C. No. 50/06 Page 52 of 118 pages 53 and requisitioning the CFSL and photographer team, PW44 reached hospital, from where MLC of the deceased was obtained. PW44 conducted inquest proceedings and after post mortem handed over body of the deceased to his father. PW44 collected the clothes of the deceased and blood soaked gauge from hospital and seized the same. PW44 got prepared site plan without scale Ex. PW44/A and after seizure towed away the car to police station with the help of a private crane. On the basis of chasis number, correct registration number of the car was located and it was found to have been stolen from area of PS Moti Nagar vide FIR number 411/2000. Through investigating officer of FIR No. 411/2000, the car was got identified from its owner Sh. Rahul Grover who produced delivery receipt and the same was seized vide memo Ex. PW44/B. Accused Anil was interrogated and his finger prints were obtained. Clothes and shoes worn by accused Anil bore red spots and red soil, S.C. No. 50/06 Page 53 of 118 pages 54 so the same were got changed and taken in possession by PW44. Accused Anil was arrested not on the same day but on 17.08.2000. At the instance of Smt. Neeru Kukreja, red colour saliva was lifted and seized from a piece of stone lying in the lane. On 11.08.2000 car accessory shopkeepers of Rani Bagh area were interrogated by PW44, one of whom told that accused Sanjay and Manish had got fitted black film on glasses an Esteem car. On the basis of secret information accused Dayanand was apprehended on 16.08.2000 at 7:10pm, who led the police party to accused Sanjay and both the accused were arrested, as per PW44. PW44 also described about the recoveries got effected by accused Dayanand and Sanjay and proved their pointing out memos as Ex. PW44/C-K. PW44 narrated about recovery of weapon of offence at the instance of accused Sanjay and Dayanand on 07.08.2000 at 6:00am from bushes near plot number 123- 124 Punjabi Bagh Transport area and seizure thereof. As per S.C. No. 50/06 Page 54 of 118 pages 55 PW44, accused Dayanand and Sanjay refused to participate in TIP. Saliva of accused Sanjay was obtained and seized vide memo Ex. PW29/A. PW44 got prepared scaled site plans Ex. PW44/L-N. PW44 identified the seized case property Ex. P1 to Ex. P38. In his cross examination, PW44 stated that on 10.08.2000 he reached house of accused Anil at 7-8 pm alongwith his staff and PW Praveen. PW44 had knowledge of bad characters of the area but did not know if Hemant Kumar, brother of the deceased had any criminal record and did not interrogate Hemant Kumar as a suspect. Accused Anil was interrogated on 10.08.2000 in the police station and thereafter on 11.08.2000, 14.08.2000, 15.08.2000 and 16.08.2000 but his statements were not recorded and he was allowed to go on each date without instructing him not to leave Delhi.
66. PW45 Ms Nisha Saxena, ADJ, Delhi stated that she was posted as Metropolitan Magistrate on 17.08.2000 at Tis S.C. No. 50/06 Page 55 of 118 pages 56 Hazari Courts, when she received an application for conducting TIP of accused Dayanand and Sanjay. On enquiry, accused persons refused to participate in TIP proceedings and she prepared report Ex. PW45/A and gave the report to IO on application Ex. PW45/B.
67. PW46 Dr. S.K. Chadha, Senior Scientific Officer, CFSL deposed that six experts from CFSL were deputed for examination of crime scene in this case. Six chance prints were lifted from car no. DL-5CA-2451 and got photographed, on the basis whereof he prepared his report dated 28.08.2000 Ex. PW46/A. He also proved his other reports Ex. PW46/B dated 28.09.2000 and Ex. PW46/C dated 29.09.2000 and stated that on comparison, chance prints were found to be different from specimen prints in these reports.
68. PW47 Sh. Rakesh Syal, Joint Secretary, Law Justice and Legislative Affairs of Government of NCT of Delhi proved TIP proceedings Ex. PW47/A-G of accused Manish and Rajesh S.C. No. 50/06 Page 56 of 118 pages 57 conducted on 01.09.2000 when the accused persons had refused to participate in TIP on the ground that they had already been shown to the witnesses in the police station.
69. PW47 (wrongly renumbered) Dr. Manoj Dhingra proved MLC of the deceased as Ex. PW47/A.
70. No other evidence was led by prosecution.
71. All the accused persons were examined by my learned predecessor under Section 313 CrPC.
72. In defence evidence, two witnesses were examined. DW1 Ms. Neeru stated that on 10.08.2000, pregnant wife of accused Anil had to be taken to hospital for check up. In the hospital at about 9:00am they were informed that elder brother of accused Anil had been kidnapped and as such, wife of accused Anil went back to her house. At about 11.30am when she went to the police station, she came to know that Sumant had been murdered. DW1 mainly S.C. No. 50/06 Page 57 of 118 pages 58 deposed about repeated interrogation of Smt. Sneh wife of accused Anil by the police on 10.08.2000 and 11.08.2000.
73. DW2 summoned on behalf of accused Rajesh is a Record Clerk from MCD, who proved the layout plan of house no. M 207, J.J. Colony, Shakarpur, Delhi as Ex.DW2/A and stated that there is an open area in front of the said house.
74. No other evidence was adduced.
75. Final arguments were advanced marathon on behalf of all the accused persons as well as State. All the learned counsel took me through the record. For the sake of convenience, arguments advanced on behalf of each of the accused persons and on behalf of prosecution are being separately noted as under.
ACCUSED ANIL
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76. It was argued on behalf of accused Anil that there is no evidence of accused Anil having been seen with any of the other accused persons, charge against accused Anil being of conspiracy. It was argued that accused Anil was interrogated on 10.08.2000 itself and repeatedly thereafter but was not arrested till 17.08.2000; his disclosure statement was recorded on 17.08.2000 but nothing could be recovered. Prosecution has failed to explain as to why accused Anil was not arrested on 10.08.2000 itself, though he was named in the FIR. It was argued that Hemant, brother of the deceased had criminal record and also had motive to kill the deceased for property, but Hemant was not examined even as a witness. It was argued that except motive, prosecution did not lead any evidence pertaining to the alleged involvement of accused Anil in this murder.
ACCUSED DAYANAND
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77. On behalf of accused Dayanand it was argued that there is no evidence of his involvement. Learned defence counsel took me through testimony of different witnesses, who turned hostile and did not support prosecution. PW13 Smt. Ramo star witness of the prosecution turned totally hostile and denied having seen anything; PW13 denied even having been questioned by the police or having made any statement under Section 161 CrPC; PW13 denied having seen the accused persons in police station; as per PW13 she lost consciousness on hearing screams of a boy. PW4, a neighbour of the deceased also turned hostile to the prosecution and in cross examination denied having seen the occupants of the car. It was pointed out that PW19 SI Anant Kiran who allegedly arrested accused Dayanand on secret information stated in his chief examination that accused Dayanand was arrested from the area near jhuggies around nullah while he was coming from the side of S.C. No. 50/06 Page 60 of 118 pages 61 Wazirpur but in cross examination PW19 stated that accused Dayanand was apprehended from ground floor of his house. It was pointed out that the column of time of arrest in arrest memo Ex. PW19/B of accused Dayanand is blank which shows manipulated arrest. Even arrest memo Ex. PW19/E of accused Sanjay who was arrested on pointing out of Dayanand allegedly, does not bear time of arrest. It was argued that Ex. PW19/H pertaining to recovery allegedly got done by accused Dayanand was not properly proved as it was not stated that accused led the police party. Learned defence counsel also pointed out contradictions as regards timings of recoveries allegedly made at the instance of accused Dayanand.
ACCUSED SANJAY
78. On behalf of accused Sanjay, allegedly driver of the car in which the deceased had been kidnapped, learned defence counsel pointed out that all the relevant witnesses, being S.C. No. 50/06 Page 61 of 118 pages 62 PW7, PW8 and PW10 turned hostile and did not support prosecution. It was argued that the disclosure statement allegedly made by accused Sanjay is hit by Section 27 Evidence Act since no new fact was discovered from his statement. As such, there is no evidence against accused Sanjay.
ACCUSED MANISH AND RAJESH
79. On behalf of accused Manish and Rajesh, it was argued that prosecution has failed to establish a complete chain of circumstantial evidence. The car used in the offence was allegedly stolen on 06.08.2000 and recovered on 10.08.2000 but there is no evidence connecting any of the accused persons with the alleged theft or even recovery of the said car. Since arrests of accused persons were made with effect from 16.08.2000 onwards, their disclosure statements qua recovery of the car are inadmissible since no new fact was discovered. It was argued that prosecution failed to bring S.C. No. 50/06 Page 62 of 118 pages 63 any evidence which would reflect prior meeting of minds of accused Anil with rest of the accused persons, therefore individual acts of each of the accused persons cannot be read against the others. Learned defence counsel argued that prosecution failed to prove as to which of the two weapons, that is dagger or knife was used in the murder since there is only one injury while both the weapons are stated to be blood stained. It was argued that there is no evidence of anyone having seen the deceased being lifted by the accused persons or his dead body recovered at the instance of accused. Saliva as well as finger prints collected from spot of kidnapping and the car do not match with saliva and finger prints of accused persons as per FSL report. Refusal of accused persons to participate in TIP was justified as per learned defence counsel since the evidence on record reflects that accused had been shown to the witnesses by the police; learned defence counsel elaborately addressed on this aspect S.C. No. 50/06 Page 63 of 118 pages 64 with the help of case law and evidence on record. So far as alleged recovery of blood stained clothes at the instance of the accused are concerned, it was argued with the help of case law that there is no evidence to rule out the possibility that the blood detected on clothes was of accused only; besides, no public person was joined at any stage of any recovery and it is not believable that accused persons would retain their blood stained clothes for such a long time after the occurrence; there is also no evidence that the clothes recovered allegedly at the instance of accused persons are the same clothes which were worn by accused persons on 10.08.2000. Learned defence counsel assailed the involvement of PW15 as an omnipresent witness of police and argued that court should be cautious while scrutinizing such testimony. It was argued that PW15 in his testimony made substantial improvements over his statement recorded by the police and improvements cannot be used to convict S.C. No. 50/06 Page 64 of 118 pages 65 the accused persons. It was also argued that statement of PW15 to the effect that Smt. Ramo had told him having seen the deceased being lifted by the accused persons is a hearsay evidence in so far as Smt Ramo PW13 does not say so. Besides, learned defence counsel also pointed out various contradictions between testimony of PW15 and other witnesses of prosecution. Conduct of PW15 in having not disclosed to his wife immediately about presence of car in alleged suspicious circumstances outside his house also is quite unnatural, as per learned defence counsel and shows that PW15 did not see the car.
PROSECUTION
80. On behalf of prosecution it was argued that in cases of conspiracy, direct evidence is seldom possible. It was argued that PW9 and PW15 have clearly explained the property dispute between accused Anil and his brother as well as threats advanced by accused Anil. There was no evidence of S.C. No. 50/06 Page 65 of 118 pages 66 involvement of Hemant, as per prosecution and there is no reason why parents of the deceased would shield the actual culprit. It was further argued that presence of Esteem car is established by all the prosecution witnesses and blood found on the car matches with blood of the deceased. It was argued that witnesses cannot be expected to depose with mathematical precision. It was argued that PW6, owner of the car deposed that registration number thereof had been changed, stepney was missing and school bag and water bottle of the deceased were found in the car. Learned Additional Public Prosecutor argued that PW15 is a reliable witness of last seen evidence and no major contradiction has been pointed out by the defence. It was argued that so far as discrepancies of timings qua recoveries are concerned, the differences were hardly of a few hours and not of days. For fault of investigation officer in not getting blood of accused tested, acquittal cannot be awarded.
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81. Both sides referred to certain judicial pronouncements, which are also being discussed hereafter.
82. At the outset, it being a case based on circumstantial evidence, law relating to appreciation of evidence in such cases needs to be kept in mind. In the case of RAJU vs THE STATE, BY INSPECTOR OF POLICE, reported as 2009 III AD (Cr) (SC) 122, Hon'ble Supreme Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh vs. State of Rajasthan AIR 1977 SC 1063; Eradu and Ors. vs. State of Hyderabad AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka AIR 1983 SC 446; State of U.P. vs. Sukhbasi and Ors. AIR 1985 SC 1224; Balwinder Singh vs. State of Punjab AIR 1987 SC 350, Ashok S.C. No. 50/06 Page 67 of 118 pages 68 Kumar Chatterjee vs. State of M.P. AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. vs. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances S.C. No. 50/06 Page 68 of 118 pages 69 should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence...."
9. In Padala Veera Reddy vs. State of A.P. And Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
and S.C. No. 50/06 Page 69 of 118 pages 70 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. vs. Ashok Kumar Srivastava, (1992 Crl. LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any beyond reasonable doubt S.C. No. 50/06 Page 70 of 118 pages 71 connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted.
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13.In Hanumant Govind Nargundkar and Anr. vs. State of Madhya Pradesh (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the S.C. No. 50/06 Page 71 of 118 pages 72 conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashta, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or S.C. No. 50/06 Page 72 of 118 pages 73 plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must S.C. No. 50/06 Page 73 of 118 pages 74 show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan vs. Raja Ram (2003 (8) SCC 180), State of Haryana vs. Jagbir Singh and Anr. (2003 (11) SCC
261), Kusuma Ankama Rao vs. State of A.P. (Criminal Appeal No. 185/2005 disposed of on 7.7.2008) and Manivel and Ors. vs. State of Tamil Nadu (Criminal Appeal No. 473 of 2001 disposed of on 8.8.2008)."
83. In the case of GOKARAJU VENKATANARASA RAJU vs STATE OF ANDHRA PRADESH 1994 CAR 1, Hon'ble Supreme Court struck a note of caution that in cases depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. It was held that court has to be watchful and avoid the danger of allowing the suspicion to take place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof; at times it can be a S.C. No. 50/06 Page 74 of 118 pages 75 case of "may be true" and not "must be true" and the same divides conjectures from sure conclusions.
84. In the case of VARKEY JOSEPH vs STATE OF KERALA, 1993 CAR 264 SC Hon'ble Supreme Court emphasized the need to ensure that suspicion does not get substituted in the place of proof. It was observed that there is a long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove its case beyond all reasonable doubt.
85. Falling back to the present case, the circumstances, which as per prosecution, stand established against the accused persons are: motive of accused Anil; last seen evidence qua the deceased and the accused persons near the Esteem car, by way of testimony of PW15; recovery of dead body of the deceased from the stolen Esteem car; recovery of blood stained clothes of accused persons; recovery of weapons of offence at the instance of accused persons; and S.C. No. 50/06 Page 75 of 118 pages 76 refusal of accused persons to participate in test identification parade. What is to be seen is as to whether prosecution has been able to establish these circumstances against the accused persons cogently and firmly and whether the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons and whether this chain shows that in all human probability, the act must have been done by the accused persons. What is to be seen is as to whether the prosecution has been able to cover the journey from "may be" through "could be" to "shall be" as reiterated by the Hon'ble Delhi High Court most recently in the case of SUNDER @ LALA vs STATE, 160 (2009) DLT 701 DB.
86. Motive in itself cannot be a solitary circumstance to reach conviction of an accused. In present case, motive of accused Anil to get the deceased murdered, as suggested by the prosecution by way of testimony of parents of the S.C. No. 50/06 Page 76 of 118 pages 77 deceased, superficially might sound convincing but on a deep analysis it is not so. An important question that remains unanswered is as to what benefit of inheritance of property accused Anil would get with the death of the deceased Sumant in view of another surviving son Hemant of Anil's brother. More important question that remains unanswered is as to if Anil wanted to get Sumant killed with the help of hired assassins, why would they kidnap the child for killing him within a few minutes and that too in a car allegedly stolen about four days ago. At the same time, stand of the defence also does not sound less convincing that the property dispute could be a motive for father of the deceased to implicate accused Anil in this case of blind murder.
87. As per learned prosecutor, parents of the deceased are not likely to shield the actual culprit and falsely implicate accused Anil. I have gone through the law cited by learned prosecutor as regards interested witnesses and witnesses S.C. No. 50/06 Page 77 of 118 pages 78 related to the deceased (GALI VENKATAIAH vs STATE OF ANDHRA PRADESH, 2007 V AD (Cr) (SC) 677) wherein it was held that a relation would not conceal the actual culprit and implicate an innocent person. Very true, but what if the actual culprit is a relation closer than the person accused? In such a case, false implication to shield the closer relation cannot be ruled out. As per evidence on record, Hemant, brother of the deceased had criminal record and as suggested by the defence, Hemant also had a property motive to get the deceased killed but no investigation was conducted, taking Hemant as a probable suspect.
88. Then, going by the FIR complaint Ex. PW2/A on the basis whereof FIR was registered, mother of the deceased had leveled specific allegations against wife of accused Anil also. But there is nothing on record to show any investigation in that regard.
S.C. No. 50/06 Page 78 of 118 pages 79
89. As observed by Hon'ble Supreme Court in the case of SHANKAR LAL GYARASILAL DIXIT vs STATE OF MAHARASTRA, AIR 1981 SC 765, "Different motives operate in the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Allegation of motive levelled against accused Anil by his brother PW15 need not necessarily be with an intent to falsely implicate his brother; such allegation could also be outcome of the ghost tracking thought process of unfortunate man who underwent trauma of brutal killing of his young son. Court while appreciating evidence has to be cautious and look much beyond moral satisfaction. As such, in my opinion motive in the present case is not that strong as tried to be projected by the prosecution.
90. Coming to the last seen evidence, the only prosecution witness in that regard is PW15, father of the deceased and S.C. No. 50/06 Page 79 of 118 pages 80 even his testimony on this count is a total improvement over what he stated to the police in his statement under Section 161 CrPC. The relevant portion in chief examination of PW15 as regards last seen evidence is that when he returned after fetching milk, he saw a blue Esteem car near house of Mr. Kukreja just opposite his residence with one boy sitting on driver seat while three persons standing in suspicious circumstances outside the car and his son, the deceased leaving for school. In his cross examination, PW15 was confronted with his earlier statement Ex. PW15/DA, in which these facts are not stated. Question that arises is as to whether such a statement on such vital facts can be relied upon against accused and the answer that falls is negative in view of law as discussed hereafter.
91. Learned Additional Public Prosecutor argued that even improved statement of a witness can be looked into in order to reach conviction, placing reliance on the judgment of S.C. No. 50/06 Page 80 of 118 pages 81 Hon'ble Supreme Court in the case of SHEO PRASAD BHOR vs STATE OF ASSAM, 2007 I AD (Cr) SC 412. I have gone through the said judgment of Hon'ble Supreme Court but in my humble view, the said judgment does not help the prosecution in the present case. For, in the said case Hon'ble Supreme Court after going through statements of witnesses under Section 161, 164 CrPC in the light of their testimony in trial observed that small contradictions and omissions are natural when body of persons attacked the deceased but one has to assure that there should be no over implication; after review of statements of witnesses, Hon'ble Supreme Court felt that testimony of witnesses had been correctly appreciated. In the present case, the improvements made by PW15 are not small or minor in nature.
92. In the case of NAND LAL @ NANDU vs STATE, 2007 (2) JCC 1189, Hon'ble Delhi High Court dealt with the issue of reliability an improved statement of a prosecution witness.
S.C. No. 50/06 Page 81 of 118 pages 82 The witness Mukesh in that case stated during investigation that both he and Sunil were stabbed by Nandu while in his testimony before trial court Mukesh improved upon his statement and stated that only he was stabbed by Nandu and Sunil was stabbed by Billu. Hon'ble Delhi High Court observed thus:
"In Dhanna vs State of Madhya Pradesh, 1996, Crl.L.J 3516, the Supreme Court accepted the view of the Trial Court to the effect that when a statement is made under Section 161 CrPC and that is improved upon at the trial, then a conviction for the offence of murder ought not to be made. Applying the law laid down by the Supreme Court , we are of the view that even if Mukesh stated the truth on oath it would be unsafe to convict Billu only on the basis of his statement in Court which was an improvement over what he had stated to the police S.C. No. 50/06 Page 82 of 118 pages 83 during investigations. Therefore, whichever way one looks at the issue, it is not possible for us to identify on the basis of the evidence on record as to who caused the murder of Sunil."
93. Even otherwise, the improvised portion of statement of PW15 as regards last seen evidence fails to inspire confidence. As a natural course of conduct, a person who happens to see someone in suspicious circumstances in front of his house and his child at gate ready to leave would not ignore the situation. I am conscious of the law cited by learned prosecutor, being the case of YAKUB ISMAIL BHAI vs STATE OF GUJRAT, 2004 VIII, AD (SC) 465 that conduct differs from person to person. But that observation was made in relation to act of a witness in running away to save his life instead of helping the deceased at the time of assault, which was considered to be a most probable and natural human conduct. In the present case, if PW15 is believed he S.C. No. 50/06 Page 83 of 118 pages 84 saw four persons outside his house in suspicious circumstances and also saw his son ready to leave, despite that as admitted by PW15 he did not disclose these circumstances to even his wife when he reached inside the house. Suspicion to the mind of PW15 was so grave that he even noted down the registration number of the Esteem car; despite that he ignored, which is not easily digestable. Even after his wife raised a hue and cry upon getting to know of kidnapping, PW15 did not tell and consequently his wife did not mention in her complaint Ex. PW2/A about presence of four persons in suspicious circumstances outside their house having been seen by PW15. Not just failure to share observation of presence of suspicious persons in front of house, conduct of PW15 of going for rest after keeping milk in the kitchen also is not a natural conduct of a person who happens to see suspicious persons in front of his house.
S.C. No. 50/06 Page 84 of 118 pages 85
94. Going a step deeper, even if the improved statement of PW15 is looked into, it cannot be treated as an evidence of last seen qua the deceased and the accused persons. For, it is nobody's case that when the deceased was last seen, he was with the accused persons; even as per PW15, when last seen, the deceased was standing at the gate of their house while the accused persons were on the road. As held by the Hon'ble Supreme Court in the case of RAMREDDY RAJESH KHANNA REDDY vs STATE OF ANDHRA PRADESH 2006 III AD (SC) 425 and VENKATESAN vs STATE OF TAMIL NADU 2008 (3) CC Cases (SC) 332, last seen theory would come into play where the time gap between the point of time when accused and the deceased were last seen alive and the deceased found dead is so small that possibility of any person other than accused being the author of the crime becomes impossible. In present case, even if improvised statement of PW15 is looked into, after he saw the deceased S.C. No. 50/06 Page 85 of 118 pages 86 and the accused persons, he went inside the house, kept the milk container inside kitchen, rested for a while and after small passage of time, heard noise from the street that some persons had kidnapped a child. It cannot be said that possibility of anyone else reaching gate of house of PW15 and lifting away the deceased is impossible and accused persons could be the only author of crime. There is no witness who saw the deceased being lifted by or at the instance of any of the accused persons.
95. Prosecution also placed reliance on statement of PW15 that sweeper Smt. Ramo told them that the deceased had been kidnapped in the blue Esteem car. But Smt. Ramo, when appeared in the box as PW13, stated that after hearing screams of a boy she became unconscious and police never met her in connection with this case. Since Smt. Ramo herself does not state having seen the accused persons lift away the deceased or her having so told to parents of the S.C. No. 50/06 Page 86 of 118 pages 87 deceased, testimony of PW15 in that regard is hearsay and cannot be looked into. My view in this regard stands fortified by the judgment of KIRTAN PARSAD vs STATE OF MADHYA PRADESH, 2005 CrLJ 69 where it was observed thus:
"22. When Mole Singh himself does not say that he informed Adhar Singh and Mukesh about the incident, it was improper on the part of the learned Sessions Judge to convict the appellant only on the ground that Adhar Singh and Mukesh have stated that Mole Singh told them that it was the appellant who caused death of Parwat Singh.
23. Section 6 of Evidence Act requires that the oral evidence must, in all cases whatsoever, be direct. Where the testimony of the witness is entirely hearsay and on some matters hearsay of hearsay, it cannot be admitted in evidence. Where a witness gives evidence that he received information from other person and that other person does not say about it, such evidence is inadmissible being hearsay evidence.
.........
S.C. No. 50/06 Page 87 of 118 pages 88
26............True it is that the rule embedded in Section 6 of the Evidence Act is roughly speaking an exception to a general rule that the hearsay evidence is not admissible and the rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and the immediacy of such statement or fact in relation to the fact in issue but when Adhar Singh and Mukesh have stated that they were told by Mole Singh that appellant caused death of Parwat Singh, but Mole Singh does not support the prosecution case, the statement made by Adhar Singh and Mukesh who claimed to have come to know from Mole Singh is inadmissible and not covered by Section 6 of the Evidence Act."
96. None of the remaining witnesses of prosecution, examined from neighbourhood of the deceased have supported case of the prosecution as regards presence of the car involved in the offence or any of the accused persons near house of the deceased. Even PW4 and PW5, who S.C. No. 50/06 Page 88 of 118 pages 89 deposed about the car could not state in chief examination registration number of the said car. Although, PW4 admitted correctness of the registration number of car in her cross examination by learned prosecutor, she denied having seen 4-5 persons in the car. PW5 was not even declared hostile as regards non disclosure of registration number of the offending car. PW10, another neighbour of the deceased stated in the chief examination that he did not know registration number of the car as he was not wearing spectacles at that time; PW10 could not identify driver of the car as his face was covered; and if PW10 is to be believed, the car did not stop there, but and immediately after lifting the child, car fled away. Similarly, PW14 also, another neighbour of the deceased did not support prosecution case as regards presence of the car involved in this offence outside house of the deceased.
S.C. No. 50/06 Page 89 of 118 pages 90
97. As regards last seen evidence, prosecution places reliance on the judgment of RAJU (supra). But facts of that case were totally different in the sense that accused were last seen with the deceased in a sequence of fight. Whereas in present case, none of the witnesses state that accused and deceased were seen together; even as per improvised statement of PW15, when last seen his son the deceased was at gate of the house while accused persons were outside the car. Judgment in the case of RAJU (supra) does show guiding light for appreciation of evidence in cases involving circumstantial evidence and the legal propositions laid down in the said case have already been quoted above.
98. As rightly argued by learned defence counsel, case of the prosecution being that kidnapping and murder of the deceased was committed in the stolen Esteem car, it was the duty of prosecution to prove either theft by or recovery of the said car from or at the instance of any of the accused S.C. No. 50/06 Page 90 of 118 pages 91 persons. There is a missing link in the chain of circumstances as to who stole and who got recovered the said car. Investigating officer ought to have examined Mahender Singh (who, as per PW39 gave telephonic information qua the car) to find out as to who had left the car at cement siding. Defence is also correct in their contention that disclosure statements of accused as regards recovery of the car are inadmissible in view of the fact that as per prosecution also, the car was recovered on 10.08.2000 itself while the disclosure statements were recorded on 16.08.2000 onwards, as such it cannot be said that from the disclosure statements the existence of car involved in the crime was discovered. Even as regards ownership of the car involved in crime, prosecution adduce no evidence except oral testimony of PW6. Prosecution ought to have brought on record atleast the registration certificate of the car involved in the offence in order to establish that it had been stolen S.C. No. 50/06 Page 91 of 118 pages 92 and its number plates had been changed. PW11, who allegedly changed the number plates did not support prosecution as regards the alleged connection between accused Rajesh & Dayanand and change of number plates. Although, PW11 identified the number plates as Ex. PW11/1&2, in view of his statement in cross examination that there is no distinctive mark of identification on the number plates, the said identification after a long gap of four years in court fails to inspire confidence.
99. As regards the spot of presence of car involved in the crime also the evidence brought on record is not clear. PW15 says that he saw the said car in front of house of Mr. Kukreja. Smt. Neeru Kukreja PW4 and her brother in law Sh. Krishan Gopal Kukreja PW5 described number of Kukreja's house as 2085 while site plan Ex. PW20/D shows position of the car outside house no. 2089 and house no. 2085 is not even reflected in the site plan. In chief examination, PW15 states S.C. No. 50/06 Page 92 of 118 pages 93 that house of Kukreja is just opposite his house but in cross examination he states that Kukreja's house is about 200 yards away from his house and Kukreja's house is not visible from his house as it is after a turn. So, there is no clear evidence as to where the car involved in the crime was seen parked by the witnesses of prosecution.
100. As regards number of persons seen prior to the kidnapping of deceased also, there are discrepancies in the statements of prosecution witnesses. PW15 says that he saw one person on driving seat and three persons outside the car while PW2 talks of only one person; even PW4 talks of only one person and in cross examination specifically denies the presence of anyone else; PW5 also talks of one person; PW10 mentions two persons. Except PW15 no other prosecution witness claims to have seen four persons involved in the crime.
S.C. No. 50/06 Page 93 of 118 pages 94
101. Even recovery of the dead body of the deceased was not at the instance of any of the accused. Rather there is no evidence at all to the effect that the deceased was seen with any of the accused persons.
102. The autopsy surgeon PW22 in his statement described to have detected only one external injury on the dead body, which was a long incise cut mark on anterior side of the neck 15cm X5cm transversely placed in mid neck, cutting through all the muscles, vessels trachea and other connected tissue. In opinion of PW22, cause of death was haemorrhagic shock produced by cut throat. In other words, there was only one injury inflicted on the deceased, which was a cut injury and which was fatal. But as per prosecution case, two weapons of offence were recovered, one being a dagger while the other being a knife and both blood stained. It was for prosecution to prove as to which of these two weapons was used to kill the deceased. Both the weapons ought to have been shown S.C. No. 50/06 Page 94 of 118 pages 95 to the autopsy surgeon for his opinion in this regard at the stage of investigation or even trial, which was not done. As such, connection between the weapons allegedly recovered at the instance of accused and the injury suffered by the deceased remains not established. In the case of ISHWAR SINGH vs STATE OF UP, AIR 1976 SC 2423, quoted in the case of NAHAR SINGH vs STATE OF PUNJAB, 1990 (2) CC Cases 119 HC, it was held as under:
"It is the duty of the prosecution and no less of the court to see that the alleged weapon of offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice. In this case, it is impossible to say with certainty whether the injury was caused by the ballam or the bhala that were seized and therefore, whether it was Ishwar Singh or Harpal who was responsible for it."
S.C. No. 50/06 Page 95 of 118 pages 96
103. Refusal of accused persons to participate in the Test Identification Parade was pressed as an important incriminating circumstance by the prosecution. It certainly is so, provided there is no justification for such refusal. If the overall evidence on record reflects that accused were justified in refusing to participate in TIP, such refusal cannot be taken to be an incriminating circumstance.
104. In the case of LEELA RAM vs STATE, 1990 (2) CC cases 402, Hon'ble Delhi High Court held as under:
"27. Evidence of identification is to be regarded as inherently weak, least to be relied upon and in itself an unsafe basis for conviction. Even a mere possibility that the accused was or could have been shown would be sufficient justification for refusal to participate in identification proceeding and to reject identification evidence."
S.C. No. 50/06 Page 96 of 118 pages 97
105. In the case of PARMOD KUMAR vs THE STATE 1990 CrLJ 68 Hon'ble Delhi High Court held:
"The witnesses who are examined by the prosecution should have been asked as far as possible to give broad description of the accused while recording their statement under Section 161 CrPC........In our view therefore, the appellant was justified in refusing to join the test identification parade as he has clearly established the possibility of his being shown to the eye witnesses during the course of the alleged recovery of the alleged weapon of offence. "
106. In the case of TAIN SINGH vs STATE, 1987 CrLJ 53, Hon'ble Delhi High Court held:
"4. It is settled law that the accused is not to prove conclusively that he was shown to the prosecution witnesses before he declined to participate in the identification parade. It is enough if he brings on record cogent circumstances to show that he was or could have been shown to prosecution witnesses while he S.C. No. 50/06 Page 97 of 118 pages 98 was in police custody or when he was produced in court for remand."
107. Falling back to the present case, PW42, the investigating officer stated in his cross examination that it was known to them that accused Manish had to be got identified from PW15. Same was the status of accused Rajesh also. Investigating officer PW20 also in his cross examination admitted that identity of accused through TIP must be established first, before conducting further investigation. Despite that, prior to getting the accused persons identified through TIP, the investigating officer took both the accused for recoveries alongwith PW15 as a witness on 01.09.2000. As per both the investigating officers, on 01.09.2000 from 7:00am till about 2:00pm recovery proceedings through accused Manish and Rajesh were conducted and throughout the proceedings PW15 remained with them. Having been fully aware that PW15 would be called upon to identify the S.C. No. 50/06 Page 98 of 118 pages 99 accused persons in TIP, investigating officers ought to have joined any other public witness or even relative of the deceased in the recovery proceedings or they ought to have got conducted TIP proceedings prior to the recovery proceedings. Statement of police witnesses that during the entire proceedings from 7:00am to 2:00pm on 01.09.2000 accused persons were muffled while being taken in the police gypsy from one place to the other fails to inspire confidence; it does not appear believable that throughout this long span of recoveries and travel from one place to other, accused would have remained muffled throughout.
108. Similarly, on 17.08.2000, during entire recovery proceedings involving accused Dayanand and Sanjay PW15 was tagged along by the investigating officer as an omnipresent witness from one place to the other. It cannot be said that there was no possibility of accused having been shown to PW15. Further, PW15 in his testimony stated that S.C. No. 50/06 Page 99 of 118 pages 100 accused Dayanand and Sanjay present at that time in court were the same persons who were seen by him in police custody on 17.08.2000 with their faces covered. If on 17.08.2000, faces of accused Dayanand and Sanjay were muffled, how would PW15 identify them as same persons present in the court room. This also throws doubts on claims of the police that accused persons were kept muffled even in presence of PW15 till the stage of TIP. As described above, the legal position is that if there is a possibility that accused could have been shown to the witness while he was in police custody, refusal to participate in TIP was justified.
109. Coming to the recoveries allegedly made at the instance of accused persons, as per prosecution case, accused Dayanand & Sanjay got recovered from bushes blood stained dagger and knife wrapped in a handkerchief; accused Manish got recovered from his residence a purse containing documents of the car and blood stained shirt;
S.C. No. 50/06 Page 100 of 118 pages
101
accused Rajesh got recovered from his residence blood
stained clothes and shoes; accused Manish and Rajesh also got recovered from diggi of an abandoned car parked behind the bus stand, one rim with burst tyre and tube. Admittedly, no public person other than father of the deceased who is star witness of the prosecution was joined at the time of all the alleged recoveries. In the case of JAGDISH vs STATE OF MP,2000(2) JCC (SC) 482 Hon'ble Supreme Court held thus:
"11. So far as the recoveries were concerned, the star witnesses are again the same witness who were stated to have been at the scene of occurrence a little later and who are related to the deceased. In the absence of independent witnesses being present at the time when panchnamas were written or recoveries were made, the trial court rightly did not rely on the same."
S.C. No. 50/06 Page 101 of 118 pages 102
110. Besides, as held in the case of JAHID vs STATE, 2009(3) JCC 1760 and KALLOO PASSI vs STATE, 2009 (2) JCC 1206 by Hon'ble Delhi High Court, without there being any other circumstance, recovery of weapons of offence and blood stained clothes at the instance of accused does not lead to a conclusion that accused is the perpetrator of the crime. For, the solitary circumstance of recovery of blood stained clothes and weapon is not a circumstance inconsistent with the innocence of accused since it cannot be ruled out that someone else committed the murder and kept blood stained articles in the house of accused, as observed by Hon'ble Delhi High Court.
111. Even as regards blood stained clothes allegedly recovered at the instance of accused persons, prosecution was under a duty to get blood group of the accused persons also tested in order to rule out that the blood on those clothes was possibly of accused persons; but the same was S.C. No. 50/06 Page 102 of 118 pages 103 not done. Not just this, mere blood grouping is not conclusive in so far as a possibility of accused and the deceased having same blood group cannot be ruled out.
Possibility of deliberate sprinkling of blood of the deceased on the recovered clothes also needs to be ruled out in view of judicial pronouncements described hereafter.
112. In the cases of SHANKAR LAL vs STATE OF MAHARASHTRA, AIR 1981 SC 765, Hon'ble Supreme Court and RAN SINGH vs STATE, 1988 CC Cases 456, RAJKUMAR vs STATE, III (1997) CCR 134 DB and RAJU vs STATE, 160 (2009) DLT 68 DB, Hon'ble Delhi High Court observed that presence of blood of the group on clothes worn by the accused at the time of offence, same as the blood group of the deceased certainly raises a strong suspicion against the accused but it cannot be made basis of conviction since prosecution failed to prove that blood group of the accused was not same as well; the probability of two human beings S.C. No. 50/06 Page 103 of 118 pages 104 having same blood group cannot be ruled out and onus to disprove did not shift on accused only because of presence of blood stains on his clothes.
113. In the case of STATE vs MOTIA, AIR 1955 RAJASTHAN 82, Hon'ble High Court observed in similar circumstances that it is not difficult to sprinkle a few human blood stains on articles recovered, if somebody wants to do so, as such arguments of the defence that this might have been done remains unrefuted.
114. Admittedly, the forensic analysis of neither saliva nor the finger prints favours the prosecution to connect any of the accused persons with the crime.
115. Besides, prosecution has brought no evidence to establish that the clothes allegedly recovered at the instance of accused persons are the same clothes which were worn by them on 10.08.2000, the ill fated day.
S.C. No. 50/06 Page 104 of 118 pages 105
116. There is another aspect that raises doubts about genuineness of the alleged recoveries made at the instance of accused persons. As per overall prosecution case, the murder was committed on 10.08.2000 while recovery of blood stained clothes was done at the instance of accused Manish and Rajesh on 01.09.2000, that is after a gap of 20 days from offence. It sounds improbable that a murderer would retain the blood stained clothes, that too in his house over such a long period of time. As per overall prosecution case, two accused persons namely Dayanand and Sanjay were arrested on 16.08.2000 and on 22.08.2000 investigating officer PW42 went to the house of accused Manish and it is on 31.08.2000 that accused Manish was arrested. It cannot be believed that till 31.08.2000 accused Manish would have remained oblivious that police was trailing him, had he been an accomplice with rest of the accused persons and consequently, despite knowing that police visited his house S.C. No. 50/06 Page 105 of 118 pages 106 he would retain blood stained clothes for another 8 days.
This view taken by me is also on the basis of law as discussed hereafter.
117. In the case of RAMESH CHAND vs STATE OF UTTAR PRADESH, 1985 CAR 65 SC, Hon'ble Supreme Court found it unnatural that the appellant should be holding the knife when he was caught and would continue to carry the knife till he reached the police station quite a distance away instead of having thrown away the same in the dark night as it is against human conduct that no one would keep holding the incriminating evidence.
118. In the case of DALIP RAM vs STATE, 2007 (2) JCC 1587 Hon'ble Delhi High Court held that it is highly improbable that the offender would retain the robbed articles with him for about 8 months since in the ordinary course of nature the offender would either dispose of the stolen articles or put the same to use and would not keep the same as ornamental in S.C. No. 50/06 Page 106 of 118 pages 107 his house, knowing that the same would be a piece of evidence if he is arrested.
119. In the case of A.K. JAISON vs STATE, 2009 (2) JCC 1410 also Hon'ble Delhi High Court found it quite unnatural that the appellant would retain the blood stained clothes with him and would hand over the same to police 20 days after the death of the deceased.
120. Besides, it is difficult to understand as to why would accused Manish retain with himself documents of the car involved in the crime, that too, copies of RC, expired insurance and long expired pollution certificate, which were of no use for him.
121. Further, DD No.2B and DD No. 9A got recorded by Inspector S.K. Tyagi on 01.09.2000 reflect that PW35 Sahasra Pal Singh also joined investigation on 01.09.2000 and got deposited the recovered articles in malkhana. But in the witness box, PW35 does not talk of recovery of blood stained S.C. No. 50/06 Page 107 of 118 pages 108 clothes on 01.09.2000 at the instance of accused Manish. Recovery of blood stained clothes of accused Manish being a planted one cannot be ruled out for this reason as well.
122. So far as the alleged recovery of weapons of offence at the instance of accused Dayanand and Sanjay is concerned, there is a major discrepancy of timings in the testimony of different prosecution witnesses. As per PW19, they left police station at 7:00am and reached Transport Nagar at 7:30am via the flyover. PW15 stated that he was at the cement siding between 9:00am to 9:30am from where Transport Nagar is at a distance of 1½ kilometer and police met him at about 9:45am. But the investigating officer PW20 stated that they left the Transport Nagar at 9:15am after completing the entire recovery proceedings and returned to the police station. As per PW19, they left Transport Nagar after completing the proceedings at 10:15am and reached police station at 10:30am. While PW15 stated that he met the police S.C. No. 50/06 Page 108 of 118 pages 109 in Transport Nagar, PW19 SI Anant Kiran of police party stated that PW15 met them on flyover Punjabi Bagh; as described by PW15, there is a distance of 1½ kilometer between the two places.
123. Another glaring circumstance that throws doubt on fairness of investigation is arrest of accused Dayanand and Sanjay. PW19 SI Anant Kiran in his chief examination stated that accused Dayanand was arrested near nullah near jhuggis of Wazir Pur while in his cross examination he stated that accused Dayanand was apprehended from ground floor of his house. Not just place of arrest, even time of arrest of accused Dayanand creates doubt in so far as the column of time of arrest in his arrest memo Ex. PW19/B was left blank. Column of time of arrest of accused Sanjay who was arrested on the pointing out of accused Dayanand as alleged, also was left blank in his arrest memo Ex. PW19/E. No explanation has been advanced by prosecution. Even the manner of S.C. No. 50/06 Page 109 of 118 pages 110 arrest of accused Manish and accused Rajesh fails to inspire confidence. It is highly improbable that person accused of such a serious crime would move around in open and be found sleeping or lying down in a park, easily accessible to police.
124. As regards arrest of all the accused persons except Anil, prosecution has not been able to bring clear evidence. As per prosecution case, police reached accused Dayanand and Rajesh on the basis of information supplied by the number plate painter and they reached accused Sanjay and Manish on the basis of information supplied by the car accessory shop owner. But both the said persons, namely Sh. Naresh Goel, the car accessory shop owner examined as PW7 and Sh. Sharad Kumar, number plate painter examined as PW11 did not support the prosecution on this aspect and specifically denied that these accused persons had approached them for installation of black film and change of number plates.
S.C. No. 50/06 Page 110 of 118 pages 111 Hence, it remains a mystery as to how the investigating officer reached these four accused persons.
125. As regards sequence of places visited by police at the time of alleged recoveries on 01.09.2000 also there are discrepancies between testimony of PW15 and testimony of investigating officer PW42. As per PW15, from Ps Saraswati Vihar they went to Rajdhani Enclave, residence of accused Manish and from there to Shakur Pur, residence of accused Rajesh and from there to the bus stand of M-Block Shakur Pur and from there to Shagun Banquet Hall, Moti Nagar. But as per PW42 investigating officer, from police station they first went to the place of kidnapping and from there to different places of occurrence vide memos Ex. PW35/B-L and from there to Rajdhani Enclave, house of accused Manish and from there to M-Block bus stand of Shakur Pur and from there to Shakur Pur, residence of accused Rajesh. This difference of routes as described by these two vital witnesses S.C. No. 50/06 Page 111 of 118 pages 112 of the prosecution places the entire version of recoveries dated 01.09.2000 under cloud of suspicion.
126. As regards shirt allegedly got recovered by accused Manish also, there are major contradictions. PW15 states that "one shirt of cream colour was also handed over to police party." Although, there is no clear expression, assuming the shirt to have been handed over by accused Manish, at whose residence the police party was present, in a glaring contradiction, IO PW42 describes colour of this shirt as green in his testimony. Shirt allegedly got recovered from accused Manish was cream colour as per Ex.P10 while as per PW42 IO, this shirt was green in colour and Ex.P13. These are vital contradictions in not just colour, even identification of the shirt allegedly got recovered from accused Manish.
127. Then, father of accused Manish examined by prosecution as PW17 specifically stated that on 01.09.2000 police did not visit their house, where accused Manish also S.C. No. 50/06 Page 112 of 118 pages 113 resides and from where the police allegedly made recoveries on 01.09.2000 at the instance of Manish. But PW17 was not declared hostile by the prosecution.
128. Another glaring contradiction is as regards recording of statement of PW15. In his cross examination, PW15 stated that his statement was recorded by police only once and that was at around 08.00am on 10.08.2000 by the investigating officer. As per prosecution case, on 10.08.2000 at 08.00am the investigating officer was SI Manoj Kumar PW20. But PW20 in his cross examination more than once stated that he did not record statement of PW15. This contradiction lends support to stand of the defence that PW15 is a planted witness.
129. Another important contradiction is the mode of travel on 01.09.2000 at the time of proceeding for recoveries. PW15 says that when they left police station on 01.09.2000, he was on his own scooter while police was in gypsy. But PW42 S.C. No. 50/06 Page 113 of 118 pages 114 investigating officer Inspector Sanjeev Tyagi states that PW15 was in their gypsy and not on scooter. Even time of leaving the police station on 01.09.2000 is 09.15am as per PW15 but 07.00am as per PW42. Such contradictions cannot be lightly brushed aside since if PW15 remembers even the specific design, colour and words printed on the handkerchief in which the weapons were allegedly found wrapped, his memory as regards mode of travel has to be perfect. Timings of returning to police station on 01.09.2000 also are glaringly contradictory. As per PW15, they returned to police station on 01.09.2000 after sun set while as per PW42 Inspector Sanjeev Tyagi, PW15 remained with them till 12.30pm only. Interestingly, DD No. 9A dated 01.09.2000 recorded at 01.45pm shows that after making recoveries allegedly at the instance of accused Manish and Rajesh, police reached back at the police station and proceeded with both the accused to Tis Hazari Courts for their production before the Magistrate.
S.C. No. 50/06 Page 114 of 118 pages 115
130. Yet another contradiction is that as per PW15 house of accused Manish was open when they reached while as per PW42 the house was bolted and they rang bell; PW15 does not know if accused Manish was living with his parents while as per PW42, father of accused Manish came out. This lends credence to the defence stand that PW15 is a planted witness and was never present on 01.09.2000 with the police.
131. So far as the contradictions described above are concerned learned prosecutor placed reliance on the judgment of Hon'ble Supreme Court in the case of CHANDRAPPA vs STATE OF KARNATAKA, 2008 III AD (Cr) SC 297 and argued that the contradictions pointed out are not so major since on account of gap of time, the witnesses cannot be expected to depose facts with mathematical precision. But the judgment relied upon by prosecution is distinguishable. For, in the case of CHANDRAPPA, the discrepancies and contradictions were qua the exact nature S.C. No. 50/06 Page 115 of 118 pages 116 of injury caused by each of the several accused persons armed with different weapons and Hon'ble Supreme Court observed it to be unreasonable to expect a witness to give exact report of the injuries caused by each accused. In the present case, if PW15 could describe with such precision even the colour of design on the handkerchief in which weapons of offence were allegedly recovered, it remains a question as to why he did not remember rest of the facts correctly.
132. So far as the alleged theft of the Esteem car involved in this offence is concerned, as described above prosecution has failed to produce any evidence to establish that the car was stolen by any of the accused persons or was recovered from possession of or even at the instance of any of the accused persons.
133. Prosecution has failed to establish not just a complete chain of circumstances, even the circumstances tried to be S.C. No. 50/06 Page 116 of 118 pages 117 established could not be cogently and firmly so established by the prosecution. It is indeed sad that such a gruesome murder of a child is going unpunished. But as described above, courts have to be phlegm to emotions while deciding whether prosecution has been able to walk through the distance between "may be true" and "must be true". Prosecution has failed to prove beyond reasonable doubt that accused persons conspired together and committed murder of the deceased Sumant; prosecution has also failed to prove that accused persons committed theft of car no. DL- 5CA-5032 or dishonestly received or retained the stolen car.
134. Consequently, in both the abovesaid cases all accused persons are held not guilty of the charges framed against them and are acquitted. Bail bonds are concelled. Sureties are discharged. Accused Dayanand is already on bail while remaining accused persons are in judicial custody and if not S.C. No. 50/06 Page 117 of 118 pages 118 required in any other case, accused in judicial custody be immediately released.
135. I must also record appreciation for all the learned defence counsel including learned amicus curiae Ms. Seema Gulati and learned Additional Public Prosecutor for the able assistance extended by all of them. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 22nd AUGUST 2009 (GIRISH KATHPALIA) ADDL. SESSIONS JUDGE SPECIAL JUDGE, NDPS(NORTH) DELHI S.C. No. 50/06 Page 118 of 118 pages